we?i« 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


A  SELECTION  OF  CASES 


ON    THE    LAW    OF 


BAILMENTS  AND  CARRIERS 

INCLUDING 

ORDINARY  BAILMENTS,  PLEDGES,  WAREHOUSEMEN 

WHARFINGERS,  INNKEEPERS,  POSTMASTERS 

AND  PUBLIC   CARRIERS   OF   GOODS 

AND   PASSENGERS 


BY 

EMLIN   McCLAIN,  A.M.,  LL.D. 


THIRD   EDITION. 


BOSTON 
LITTLE,   BROWN,   AND    COMPANY 

1914 


Copyright,  1894, 
By  Emlin  McClain. 

Copyright,  1896, 
By  Emlin  McClain. 

Copyright,  1914, 
By  Emlin  McClain. 

T 


Set  up  and  electrotyped  by  J.  S.  Cushing  Co.,  Norwood,  Mass. ,  U.S.A. 
Pressworkby  S.  J.  Parkhill&  Co.,  Boston,  Mass.,  U.S.A. 


o 


PREFACE. 

In  the  preparation  of  a  new  edition  of  "  Cases  on  Carriers  "  it  has 
seemed  highly  desirable  not  only  to  incorporate  some  of  the  recent 
decisions  of  the  courts  relating  to  carriage  of  goods  and  of  passengers, 
but  als  3  to  cover,  as  a  new  subject,  the  law  of  bailments,  not  by  merely 
prefixing  a  few  of  the  old  cases  which  have  been  stepping  stones 
in  reaching  the  doctrine  of  common  carriers'  extraordinary  liability, 
but  by  giving  a  substantial  collection  of  the  cases,  old  and  new,  in 
which  the  characteristics  of  bailment  and  the  resulting  relations  of 
bailee  to  bailor  and  to  third  persons  should  be  made  to  appear.  The 
historical  development  of  the  bailment  conception  could  not  well 
be  presented  without  adding  to  the  cases  of  ordinary  bailment  those 
of  the  special  classes  which  have  in  use  "become  known  by  particular 
names,  to  wit :  Pledges,  Warehousemen,  Wharfingers,  Innkeepers,  and 
Postmasters. 

The  cases  on  each  of  these  forms  of  bailment  have  contributed  to  or 
illustrated  the  development  of  the  law  of  carriers'  liability.  From  the 
case  of  Coggs  v.  Bernard,  and  the  Treatise  of  Jones  on  Bailments  to 
the  present  time  judges  and  authors  have  found  an  intimate  relation 
of  these  various  subjects  to  each  other  and  a  comprehensive  treatment 
of  them  in  one  course  is  not  only  justifiable,  but  essential. 

The  conception  of  public  service  obligations  arising  out  of  the  pur- 
suit of  certain  callings  and  the  appropriation  of  property  by  the  owner 
to  certain  public  uses,  is  one  which  was  first  formed  in  bailment  cases. 
For  instance,  the  exceptional  liability  of  an  innkeeper  for  the  goods  of 
his  guest  brought  with  him  to  the  inn  has  been  worked  out  along 
lines  parallel  to,  but  not  entirely  harmonious  with,  that  of  the  public 
carrier  of  goods  entrusted  to  him  for  transportation ;  and  the  general 
principles  ofx  public  service  obligations  can  best  be  reached  by  follow- 
ing this  course  of  development. 

74.8843 


;v  PREFACE. 


There  is  a  historical  reason,  also,  though  not,  perhaps,  a  logical  con- 
sistency, in  covering  the  duty  of  the  innkeeper  and  the  carrier  to  pro- 
tect his  guest's  or  his  passenger's  person  as  well  as  his  property, 
which  justifies  the  inclusion  of  these  topics  in  a  treatment  of  the  law 
of  bailments. 


EMLIN  McCLAIN. 


State  University  op  Iowa, 
September,  1914. 


PEEFACE    TO   THE    SECOND    EDITION 
OF   CASES    ON   CAERIERS. 


Although  this  collection  of  cases  as  now  published  remains  sub- 
stantially the  same  as  when  the  Cases  on  Carriers  of  Goods 
were  published  three  years  ago,  and  the  Cases  on  Carriers  of 
Passengers  were  added  a  year  later,  making  the  first  complete 
edition,  yet  there  have  been  such  changes  in  plan  as  to  make  an 
entirely  new  preface  proper ;  and  the  former  one  is  omitted  as 
not  applicable  to  the  book  in  its  present  form,  although  the  gen- 
eral purpose  and  plan  have  not  been  materially  changed. 

Three  principal  considerations  have  been  borne  in  mind  in  the 
selection  of  the  cases  to  be  included :  First,  to  secure  at  least  one 
case  on  each  question  involved  in  the  law  of  carriers  upon  which 
the  instructor  would  feel  that  he  ought  to  give  his  class  informa- 
tion, so  that  the  collection  will  serve  substantially  the  purpose  of 
a  text-book.  Second,  to  select  cases  which  present  the  principles 
of  the  subject  by  way  of  adjudication  of  actual  controversies  be- 
fore a  court,  and  not  merely  by  way  of  dictum  or  argument  in 
laying  down  the  general  propositions  of  law  on  the  subject.  These 
text-book  cases  are  apparently  satisfactory  to  the  novice  in  the 
study  of  cases,  because  they  seem  to  serve  the  purpose  of  a  trea- 
tise, but  they  are  not  the  cases  which  carry  the  greatest  weight 
when  cited,  and  therefore  are  not  the  cases  which  the  student 
should  master  in  determining  what  the  law  is.  The  writer  of  a 
treatise  is  in  position  to  state  more  accurately  and  reliably  the 
general  propositions  of  law  on  a  subject  than  is  the  judge  who 
has  before  him  for  consideration  only  a  particular  question  to  be 
decided  under  one  branch  or  rule  of   the  subject,  although  he 


vi  PREFACE    TO    THE    SECOND    EDITION 

may  think  it  desirable  to  illustrate  his  reasoning  by  stating 
general  propositions  relating  to  other  branches.  Third,  to  choose 
cases  which  state  what  is  believed  to  be  the  correct  or  preponder- 
ating rule  as  to  any  particular  question,  where  there  is  a  conflict; 
but  where  the  conflict  is  marked  and  there  are  strong  reasons  or 
weighty  authorities  on  each  side,  then  it  has  been  sought  to  pre 
sent  at  least  one  case  on  each  side  for  the  purpose  of  indicating 
the  conflict.  If  this  has  not  been  deemed  expedient,  then  the  fact 
of  the  existence  of  a  difference  of  view  is  indicated  by  references 
contra  in  a  note.  But  the  harmonizing  of  apparent  conflicts  and 
the  collection  of  authorities  upholding  opposing  views  has  been 
left  for  the  student's  own  efforts  under  the  guidance  of  his 
instructor,  the  object  of  this  collection  being,  not  to  render  un- 
necessary or  minimize  the  work  of  the  teacher,  but  only  to 
furnish  suitable  material  to  be  placed  in  the  hands  of  the  student 
in  connection  with  a  course  of  instruction  on  the  subject. 

In  order  however  to  guide  the  student,  as  well  as  the  teacher, 
in  forming  some  connected  plan  of  the  whole  subject  which  shall 
serve  to  indicate  the  relation  of  the  cases  to  each  other  and  form 
a  basis  for  other  reading,  the  cases  have  been  arranged  in  ac- 
cordance with  an  analysis  which  is  [.resented  at  the  beginning 
of  the  book  and  carried  through  it  by  means  of  headings  and  sub- 
headings. There  is  no  intention  by  means  of  this  analysis  to 
lessen  the  labors  of  either  the  teacher  or  the  student  by  stating 
in  condensed  form  what  the  law  is,  for  it  is  believed  that  such 
condensed  and  analytical  statements,  useful  as  they  may  be  as  a 
summing  up  and  conclusion  of  information  already  acquired,  arc 
entirely  misleading  when  relied  upon  as  sources  of  information 
on  the  law,  and  detrimental  in  that  they  induce  many  students  to 
omit  that  careful  and  critical  study  which  gives  to  a  legal  educa- 
tion its  principal  disciplinary  value.  With  the  same  view,  all 
headnotes  or  brief  statements  of  points  decided  have  been  omitted. 
In  order  to  bring  the  collection  within  reasonable  scope,  por- 
tions of  some  of  the  opinions,  which  have  no  bearing  on  the  point 


CASES    ON    CARRIERS  Vll 

which  the  case  is  intended  to  illustrate,  are  omitted,  and  in  most 
cases  also  the  arguments  of  counsel.  While  the  retention  of  each 
case  intact  would  have  been  in  itself  advantageous,  yet  the  corre- 
sponding advantage  of  being  able  to  present  within  the  necessary 
limits  of  such  a  collection  other  more  important  matter  has  been 
thought  to  justify  such  slight  omissions  as  have  been  made.  But 
all  omissions,  except  in  case  of  names  and  arguments  of  counsel, 
have  been  in  some  form  indicated.  No  effort  has  been  made  to 
edit  the  opinions  or  correct  the  references ;  but  wherever  a  case 
has  been  found  cited  which  is  included  in  this  collection,  the  fact 
is  indicated  by  a  reference  in  bold-faced  type  to  the  page  where 
the  case  may  be  found. 

EMLIN  McCLAIN. 

Iowa  City,  July,  1896. 


ANALYSIS. 


I.     ORDINARY  BAILMENTS. 

PAGE 

1.  Relations  of  Bailor  and  Bailee 3 

a.  In  general 3 

Southcote's  Case 3 

Coggs  v.  Bernard 4 

Brewster  v.  Warner 12 

The  Winkfield 14 

b.  Lost  chattels        20 

Armory  v.  Delamirie 20 

McAvoy  v.  Medina 20 

Durfee  v.  Jones 21 

Danielson  v.  Roberts 24 

South  Staffordshire  Water  Co.  v.  Sharman 27 

2.  Possession  by  Bailee 28 

Bretz  v.  Diehl 28 

Woodward  v.  Semans 32 

National  Safe  Deposit  Co.  v.  Stead 33 

Wamser  v.  Browning 36 

3.  Conversion 38 

Fletcher  v.  Fletcher 38 

Way  v.  Davidson 39 

Pulliam  v.  Burlingame 39 

Jensen  v.  Eagle  Ore  Co 43 

Jenkins  v.  Bacon 46 

Doolittle  v.  Shaw 49 

4.  Negligence 53 

a.  What  constitutes      .     .     .' 53 

Doorman  v.  Jenkins 53 

Wilson  v.  Brett 56 

Knowles  v.  Atlantic  &  St.  Law.  R.  Co 58 

Bennett  v.  O'Brien 60 

Wiser  v.  Chesley 61 

First  National  Bank  v.  Graham 63 

Preston  ;'.  Prather 66 

b.  Burden  of  proof '3 

Sanborn  v.  Kimball 73 

5.  Lien 1°. 

Burdict  v.  Murray '° 

Arians  v.  Brickley ^,6 

Grinnell  v.  Cook '9 

Williams  v.  Allsup &} 

Sargent  v.  Usher °'- 

Case  v.  Allen &* 

Small  v.  Robinson gj 

Sensenbreuner  v.  Mathews 

Doane  v.  Russell j  'J 

Lambert  v.  Nicklass • 93 


X  ANALYSIS. 

II.     PLEDGES. 

PAGE 

1.  Possession-  Essential 

Wilson  v.  Little 

Walker  r.  Staples       1°J 

Casey  o.  Cavaroc l^ 

Geilfuss  v.  Corrigan HO 

2.  Duties  of  Pledgee 115 

St.  Loskv  v.  Davidson U5 

Drake  v.  White 116 

3-   Lien ■ }}jj 

Steam-  o.  Marsh - il& 

Robinson  v.  Hurlev 1-1 

White  v.  Phelps 123 

Bomton  v.  Payrow l'-i 

Masonic  Sav.  Bank  v.  B      j*s  Adm'r 129 

Moses  v.  Grainger 133 

III.    WAREHOUSEMEN. 

1.  Duties I36 

-  shmidt  v.  Blood 

Gulf  Conr  .  v.  Harrington .    .  137 

2.  Receipts 

Sinsheimer  v.  Whiteley       ...  140 

Anderson  v.  Portland  Flouring  Mills  Co 112 

Dolliff  v.  Robbins 147 

3*.    Lien 

Steinman  p.  Wilkins 150 

IV.     WHARFINGERS. 

1.  As  Bailees 153 

Rodgers  v.  Stophel 153 

2.  Duties 155 

Chapman  v.  State       155 

Willey  v.  Allegheny  City 159 

V.     INNKEEPERS. 

1.  Public  Calling       163 

Calye's  Cas<        I 

Rex  v.  Ivens 

2.  Essential  Relation  of  Innkeeper  and  Guest 167 

Kisten  v.  Hildebrand 

Hancock  v.  Rand 170 

Orchard  v.  Bush 175 

Walpert  v.  Bohan       177 

Pullman  Palace  Car  C  ^nith 

3.  Duty  as  to  Guest's  Personal  Safety I8i 

Gilbert  v.  Hoffman * 

Clancy  v.  Barker 185 

4.  Ll\bility  for  Guest'-  Property - 

Clute   •.  Wigg     3 - 

Quinton  >:.  Courtney       201 

Merritt  v.  Claghorn '-  - 


ANALYSIS.  Xl 

PAGE 

Siblev  v.  Aldrich - 

Hulett  v.  Swift 212 

Faucett  v.  Nichols 21{ 

Johnson  v.  Chadborn  Finance  Co 

Fav  v.  Pacific  Impr.  Co -  - 

Eppa  v.  Hinds 226 

Weisenger  v.  Taylor - 

Jalie  v.  Cardinal" 

Berkshire  Woollen  Co.  v.  Proctor -   - 

WilMna  v.  Earle 237 

Fisher  v.  Kelsey 242 

0.     REGULATIONS -43 

Markham  v.  Brown - 

State  v.  Steele - 

6.   Lien    .    .    . 254 

Cook  v.  Kan-. -oi 

Singer  Mfg.  I     -    .  Miller - 

Robins  v.  Gray - 

VI.     POSTMASTERS   AND   CARRIERS   OF   MAIL. 

1.  Postal  Officers - 

Lane  v.  Cotton '--'-'• 

2.  Carriers  under  Contract -_ 

-  iwyer  v.  Corse ■ 

Foster  v.  Metts       - 

Boston  Ins.  Co.  v.  Chicago,  R.  I.  &  P.  K.  Co 

The  Winkfield ...  288 

VII.     CARRIERS   OF   GOODS. 

1.   Who  ap.e  Common  Carriers -~ 

a.  Nature  of  public  calling 

Munn  o.  Illinois j  ' 

b.  Who  exercise  such  calling - 

Allen  v.  Sackrider - 

Gisbourn  v.  Hurst n- 

Gordon  v.  Hutchii  - 

Citizens'  Bank  o.  Nantucket  Steamboat  Co ■ 

Dwight  r.  Brewster jJJJ* 

Flint,  etc.  R.  Co.  v.  Weir ;    _ 

Pierce  v.  Milwaukee,  etc.  R.  Co 

Gray  •:.  Missouri  River  Packet  Co ™® 

Hafe  v.  New  Jersey  Steam  Xav.  Co ;J|1 

Liverpool  Steam  Co.  <\  Phoenix  Ins.  Co oil 

McArthuT  v.  Sears "*'% 

Hall  v.  Renfro *\% 

The  Xeaffie JJJ 

Coup  v.  Wabash,  etc.  Ry.  Co 

Buckland  p.  Adams  Exp:'--  Co ; 

Roberts     .  1    rner 

Transportation  Co.  v.  Block 

c.  Baggage  of  passengers 

Orange*  Couutv  Bank  v.  Brown "-- 

Railroad  Co.  v.  FralofE gj 

Kansas  City,  etc.  R.  Co.  v.  Morrison 

Great  Northern  Railwav  v.  Shepherd *» 


xii  ANALYSIS. 

PAGE 

Kansas  City,  F.  S.  &  M.  R.  Co.  v.  McGahey 339 

Michigan  Cent.  R.  Co.  v.  Carrow 340 

Hannibal  Railroad  v.  Swift 342 

Henderson  v.  Louisville,  etc.  R.  Co 343 

First  Nat.  Bank  v.  Marietta,  etc.  R.  Co 344 

Lewis  v.  New  York  Sleeping  Car  Co 345 

Clark  v.  Burns 347 

2.  Delivery  to  Carrier 349 

Grosvenor  v.  New  York  Cent.  R.  Co 349 

Green  v.  Milwaukee  &  St.  P.  R.  Co 352 

Michigan  Southern,  etc.  R.  Co.  v.  Shurtz 353 

3.  Duty  to  Serve  the  Public 354 

a.  Without  discrimination 3o4 

Chicago  &  N.  W.  Ry.  Co.  v.  People 354 

Ayres  v.  Chicago  &  N.  W.  Ry.  Co 358 

Sargent  v.  Boston  &  Lowell  R.  Corp 364 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  &  N.  O.  R.  Co.    .     .     .  367 

State  v.  Cincinnati,  etc.  R,  Co 372 

b.  For  a  reasonable  compensation 376 

Bastard  v.  Bastard 376 

Ragan  v.  Aiken 376 

Chicago,  B.  &  Q.  R.  Co.  v.  Iowa 377 

Reagan  v.  Farmers'  Loan  &  Trust  Co 380 

4.  Carrier's  Liability 3s:; 

a.  Act  of  God 383 

Proprietors  of  the  Trent  Nav.  v.  Wood 383 

Forward  v.  Pittard 385 

Colt  v.  M'Mechen 31)2 

Friend  v.  Woods     .     .' 395 

Railroad  Co.  v.  Reeves 398 

b.  Act  of  public  enemy I'll' 

Morse  v.  Slue \ 402 

Southern  Express  Co.  v.  Woinack 403 

c.  Act  of  shipper 107 

Congar  v.  Chicago,  etc.  R.  Co 1<>7 

Mi lti more  v.  Chicago,  etc.  R.  Co 109 

White  v.  Winnisimmet  Co 112 

Hart  v.  Chicago,  etc.  R.  Co 4  Hi 

d.  Nature  of  goods 418 

Clarke  v.  Rochester,  etc.  R.  Co 418 

Evans  v.  Fitchburg  R.  Co 421 

Kinnick  v.  Chicago,  etc.  R.  Co 423 

Wilke  o.  Illinois  Cent.  R.  Co 426 

Fauclier  v.  Wilson 429 

e.  Carrier's  fault  or  negligence 430 

Scovilf  v.  Griffith    .' ■ 430 

Blackstock  v.  New  York,  etc.  R.  Co 434 

Geismer  v.  Lake  Shore,  etc.  R.  Co 437 

Davis  v.  Garrett 439 

Constable  v.  National  Steamship  Co 443 

Steamboat  Lynx  v.  King 445 

Brennisen  v.  Pennsylvania  R.  Co 449 

5.  Limitation  of  Liability 452 

a.    What  valid 452 

Gibbon  v.  Paynton 452 

Harris  v.  Packwood 456 


ANALYSIS.  X1U 

•  PACE 

Riley  v.  Home 461 

Hollister  v.  Xowlen 4(55 

Judson  v.  Western  R.  Co 477 

Boon  v.  Steamboat  Belfast 481 

Blossom  v.  Dodd 435 

b.  In  case  of  negligence 489 

Liverpool  Steam  Co.  v,  Phoenix  Ins.  Co 489 

Mynard  v.  Syracuse,  etc.  R.  Co n.  498 

The  Main  0.  Williams 498 

Calderon  v.  Atlas  Steamship  Co 504 

Knott  v.  Botany  Mills 510 

c.  Agreed  valuation olg 

Graves  v.  Lake  Shore  R.  Co 510 

McFadden  v.  Missouri  Pacific  R.  Co 519 

Adams  Express  Co.  v.  Croninger 520 

Missouri,  K.  &  T.  R.  Co.  v.  Harriman 530 

d.  Time  for  claiming  damages       536 

Express  Co.  v.  Caldwell 536 

Sprague  v  Missouri  Pacific  R.  Co 542 

Ridgway  Grain  Co.  r.  Pennsylvania  R.  Co 546 

e.  Consignor  and  consignee  bound 548 

Grace  v.  Adams 548 

Shelton  v.  Merchants'  Dispatch,  etc.  Co 552 

Anchor  Line  v.  Dater n.  552 

f.  Available  to  connecting  carrier 557) 

Babcock  v.  Lake  Shore  R.  Co 555 

Kiff  v.  Atchison,  T.  &  S.  F.  R.  Co n.  560 

The  Bill  of  Lading       561 

a.  As  a  contract 561 

The  Delaware 561 

Garden  Grove  Bank  v.  Humeston  &  S.  Ry.  Co 569 

b.  As  a  receipt 575 

O'Brien  v.  Gilchrist 575 

Relyea  v.  New  Haven  Rolling  Mill  Co 577 

Dean  v.  Driggs 580 

The  Idaho 5S8 

Pollard  v.  Vinton 588 

Sioux  City  &  P.  R.  Co.  v.  First  Nat.  Bank 592 

Delivery  by  Carrier 596 

A.  To  Terminate  Exceptional  Liability 596 

Hyde  v.  Navigation  Co 596 

Baldwin  v.  American  Express  Co 602 

Packard  v.  Earl 605 

Witbeck  v.  Holland 606 

Hutchinson  v.  United  States  Ex.  Co 610 

Norway  Plains  Co.  v.  Boston  &  Maine  R.  R 616 

Lewis  v.  Louisville  &  N.  R.  Co 623 

Faulkner  v.  Hart    . 630 

Kansas  City,  F.  S.  &  M.  R.  Co.  v.  McGahey 636 

B.  Termination  of  Liability  as  Bailee 642 

a.    Delivery  to  connecting  carrier 642 

Railroad  Co.  v.  Manufacturing  Co 642 

Muscbamp  v.  Lancaster  &  Preston  June.  R.  Co 646 

Nutting  v.  Connecticut  River  R.  Co 652 

Galveston,  H.  &  S.  A.  R.  Co.  v.  Wallace       654 

Atchinson,  T.  &  S.  F.  R.  Co.  v.  Roach 656 

Peterson  v.  Chicago,  R.  I.  &  P.  R.  Co 663 


xiv  ANALYSIS. 

PAGE 

b.  Delivery  to  consignee '••■.'  ™, 

Sweet  v.  Barney °°° 

Bailey  v.  Hudson  River  R.  Co 6*- 

Armentrout  v.  St.  Louis,  K.  C.  &  N.  R.  Co 6/0 

McEntee  v.  New  Jersey  Steamboat  Co b/ 8 

c.  Delivery  to  holder  of  bill  of  lading 

Pennsylvania  R.  Co.  v.  Steam o»U 

Weyand  ».  Atchinson,  T.  &  S.  F.  R.  Co 681 

Shaw  v.  Railroad  Co 680 

d.  Delivery  to  true  owner 690 

The  Idaho "90 

e.  Delivery  to  wrong  party  through  mistake  or  fraud oJb 

Powell  v.  Myers °9° 

American  Express  Co.  v.  Stack 698 

Price  v.  Oswego  &  S.  R.  Co 700 

Samuel  v.  Cheney '"^ 

Edmunds  v.  Merchants'  Despatch  Transp.  Co 710 

Wernwag  v.  Phil.  AY.  &  B.  R.  Co 711 

Singer  v.  Merchants'  Despatch  Transp.  Co 715 

f.  Stoppage  in  transitu '*~ 

Newhall  v.  Central  Pacific  R.  Co '18 

Allen  v.  Maine  Cent.  R.  Co 720 

Pennsylvania  R.  Co.  v.  American  Oil  Works 721 

Branan  v.  Atlanta  &  W.  P.  R.  Co 723 

Brewer  Lumber  Co.  v.  Boston  8c  A.  11.  Co 729 

g.  Seizure  under  legal  process 7oO 

Stiles  v.  Davis 735 

Bliven  v.  Hudson  River  R.  Co 736 

Ohio  &  Mississippi  R.  Co.  r.  Yohe 739 

Edwards  v.  White  Line  Transit  Co 744 

Riff  v.  Old  Colony  &  N.  R.  Co 746 

Adams  v.  Scott 748 

Montrose  Pickle  Co.  v.  Dodson  &  Hills  Mfg.  Co 751 

8.   Remedies  as  against  Carrier 753 

a.  Who  may  sue 753 

Davis  v.  James 753 

Dawes  v.  Peck 754 

Finn  v.  Western  R.  Corp 758 

Krulder  v.  Ellison 766 

Freeman  v.  Birch '69 

Elkins  v.  Boston  &  Maine  R 770 

b.  Form  of  action '73 

Dale  v.  Hall       773 

Baylis  v.  Lintott 775 

Pozzi  v.  Shipton ^'8 

Smith  v.  Seward 780 

c.  Burden  of  proof 783 

Transpoi-tation  Co.  v.  Downer 783 

Shriver  v.  Sioux  City  &  St.  P.  R.  Co 786 

Marquette,  H.  &  O.  R.  Co.  v.  Kirkwood 789 

Montgomery  &  Eufaula  R.  Co.  v.  Culver 792 

d.  Evidence  of  negligence 79 1 

Empire  Transp.  Co.  v.  Wamsutta  Oil  Ref .  etc.  Co 797 

Kirst  v.  Milwaukee,  L.  S.  &  W.  R.  Co 800 

9.   Carrier's  Compensation 803 

a.    Freight  charges 803 

Curling  v.  Long 803 

Tindal  v.  Taylor 805 


ANALYSIS.  xv 

PAGE 

Bailey  v.  Damon ..„-....  806 

Sayward  v.  Stevens     ...............  809 

Western  Transp.  Co.  v.  Hoyt 817 

Wooster  v.  Tarr 822 

Merian  v.  Funck 823 

Scaife  v.  Tobin 826 

Wegener  v.  Smith 828 

Ashmole  v.  Wainwright 829 

Chase  v.  Alliance  Ins.  Co 831 

b.    Lien 833 

Skinner  v.  Upshaw 833 

Phillips  v.  Kodie 833 

Chicago  &  N.  W.  R.  Co.  v.  Jenkins 836 

Potts  v.  N.  Y.  &  N.  E.  R.  Co .     .     .     .  837 

Campbell  v.  Conner £39 

Steamboat  Virginia  v.  Kraft 841 

Wells  v.  Thomas 843 

Briggs  i7.  Boston  and  Lowell  R.  Co 845 

Roberts  r.  Koehler 849 

Robinson  v.  Baker 852 

Bassett  v.  Spofford 856 

VIII.     CARRIERS   OF   PASSENGERS. 

Who  Deemed 860 

Boyce  v.  Anderson 860 

Shoemaker  v.  Kingsbury 863 

Hoar  v.  Maine  Cent.  R."Co 867 

Houston  &  T.  C.  R.  Co.  v.  Moore 870 

Public  Calling 873 

Bennett  v.  Dutton 873 

Nevin  v.  Pullman  Palace  Car  Co 877 

The  D.  R.  Martin 885 

Thurston  v.  Union  Pacific  R.  Co 888 

Vinton  v.  Middlesex  R.  Co 889 

Jencks  v.  Coleman 891 

Old  Colony  R.  Co.  v.  Tripp 894 

Who  Deemed  Passengers 

a.  Acceptance 

Brien  v.  Bennett 900 

Allender  v.  Chicago,  etc.  R.  Co 90 

b.  Persons  pursuing  special  callings 904 

Nolton  v.  Western  R.  Co 904 

c.  Employees ^08 

Gillshannon  v.  Stony  Brook  R.  Co 908 

d.  For  compensation 

Tarbell  v.  Central  Pacific  R.  Co 910 

Wilton  v.  Middlesex  R.  Co 912 

Waterbury  v.  New  York  Cent.,  etc.  R.  Co 911 

Duff  v.  Alleghany  Valley  R.  Co 91  r, 

St.  Joseph,  etc.  R.  Co.  v.  Wheeler 917 

Toledo,  etc.  R.  Co.  v.  Brooks 922 

Way  v.  Chicago,  etc.  R.  Co 924 

Liability  for  Injuries 

a.    From  negligence 9"8 

Christie  v.  Griggs 9L8 

Ingalls  v.  Bills J-^ 

Meier  v.  Pennsylvania  R.  Co 93 1 


XVI  ANALYSIS. 

PAOB 

Steamboat  New  World  v.  King 940 

McPadden  v.  New  York  Cent.  R.  Co.  .     .    , 945 

Grand  Rapids,  etc.  R.  Co.  v.  Huntley 949 

Pershing  v.  Chicago,  etc.  R.  Co 952 

Gleeson  v.  Virginia  Midland  R.  Co 958 

b.  Negligence  or  wrong  of  servants 964 

Railroad  Co.  v.  Walrath 964 

Ramsden  v.  Boston,  etc.  R.  Co 967 

Chicago,  etc.  R.  Co.  v.  Flexman 969 

Fick  v.  Chicago,  etc.  R.  Co 972 

c.  Acts  of  fellow-passengers  or  others 975 

Putnam  v.  Broadway,  etc.  R.  Co 975 

Pittsburgh,  F.  W.  &  C.  R.  Co.  v.  Hinds 981 

Batton  v.  South  &  N.  A.  R.  Co 984 

d.  Contributory  negligence 986 

Illinois  Cent.  R.  Co.  v.  Green 986 

Morrison  v.  Erie  R.  Co 990 

Filer  v.  New  York  Cent.  R.  Co ,995 

Buel  v.  New  York  Cent.  R.  Co 996 

Waite  v.  Northeastern  R.  Co 999 

5.  Liability  for  Delay 1003 

Sears  v.  Eastern  R.  Co 1003 

Nunn  v.  Georgia  R.  Co 1006 

6.  Limitation  of  Liability 1010 

Railway  Co.  v.  Stevens 1010 

Bates  v.  Old  Colony  R.  Co 1013 

Quimby  v.  Boston,  etc.  R.  Co 1018 

Jacobus  v.  Saint  Paul,  etc.  R.  Co 1023 

7.  Tickets 1029 

Jerome  v.  Smith 1029 

State  v.  Overton 1032 

Keeley  v.  Boston  &  Maine  R.  Co 1034 

Auerbach  v.  N.  Y.  C.  &  H.  R.  R.  Co 1036 

Boylan  v.  Hot  Springs  R.  Co 1039 

Nashville,  etc.  R.  Co.  v.  Sprayberry 1042 

Central  R.  Co.  v.  Combs 1045 

Frank  v.  Ingalls 1047 

Sleeper  v.  Pennsylvania  R.  Co 1049 

8.  Regulations 1051 

Jeffersonville  R.  Co.  v.  Rogers 1051 

Everett  v.  Chicago,  etc.  R.  Co 1054 

Townsend  v.  N.  Y.  Cent.  &  H.  R.  R.  Co 1057 

Frederick  v.  M.  H.  &  O.  R.  Co 1060 

Bradshaw  v.  South  Boston  R.  Co 1064 

Murdock  v.  Boston,  etc.  R.  Co •     .     .  1067 

Philadelphia,  W.  &  B.  R.  Co.  v.  Rice 1069 

Kansas  City,  etc.  R.  Co.  v.  Riley 1072 

Swan  v.  Manchester,  etc.  R 1075 

Illinois  Cent.  R.  Co.  v.  Whittemore 1080 

Chicago,  etc.  R.  Co.  v.  Williams 1082 


TABLE    OF    CASES. 


PAGE 

Adams  v.  Scott 748 

Adams  Express  Co.  v.  Croninger  .  520 

Allen  v.  Maine  Central  R.  Co.   .     .  720 

v.  Sackrider 299 

Allender  v.  Chicago,  etc.  R.  Co.     .  901 

American  Ex.  Co.  v.  Stack   .     .     .  698 

Anchor  Line  v.  Dater  .  .  .  .  n.  552 
Anderson     v.     Portland    Flouring 

Mills  Co 142 

Arians  v.  Brickley 76 

Armentrout  v.  St.  Lewis,  etc.  R. 

Co 675 

Armory  v.  Delamirie 20 

Ashmole  v.  Wainwright  ....  829 

Atchison,  etc.  R.  Co.  v.  Roach  .  656 
Atchison,  T.  &  S.  F.  R.  Co.  v.  D. 

&  N.  0.  R.  Co 367 

Auerbach  v.  N.  Y.  C.  &  H.  R.  R. 

Co 1036 

Ayres  v.  Chicago,  etc.  R.  Co.   .     .  358 

Babcock  v.  Lake  Shore,  etc.  R.  Co.  555 

Bailey  v.  Damon 806 

v.  Hudson  River  R.  Co.     .     .  672 

Baldwin  v.  American  Ex.  Co.   .     .  602 

Bassett  v.  Spofford 856 

Bastard  v.  Bastard 376 

Bates  v.  Old  Colony  R.  Co.  .     .     .  1013 

Batton  v.  South  &  N.  A.  R.  Co.     .  984 

Baylisv.  Lintott 775 

Bennett  v.  Dutton 873 

v.  O'Brien 60 

Berkshire  Woollen  Co.  v.  Proctor  .  232 
Blackstock  v.  New  York,  etc.  R. 

Co 434 

Bliven  v.  Hudson  River  R.  Co.  .     .  736 

Blossom  v.  Dodd 485 

Boon  v.  Steamboat  Belfast  .  .  .  481 
Boston  Ins.  Co.  v.  Chicago,  R.  I.  & 

P.  R.  Co 280 

Boyce  v.  Anderson 860 

Boylan  v.  Hot  Springs  R.  Co.    .     .  1039 

Boynton  v.  Payrow 127 

Bradshaw  v.  South  Boston  R.  Co.  1064 

Branan  v.  Atlanta  &  W.  P.  R.  Co.  723 

Brennisen  v.  Pennsylvania  R.  Co.  449 

Bretz  v.  Diehl 28 

Brewer   Lumber  Co.  v.  Boston  & 

Albany  R.  Co 729 

Brewster  v.  Warner 12 


PAGE 

Brien  v.  Bennett 900 

Briggs  v.  Boston,  etc.  R.  Co.     .     .  845 

Buckland  v.  Adams  Exp.  Co.    .     .  318 

Buel  v.  New  York  C.  R.  Co.      .     .  996 

Burdict  v.  Murray 75 

Calderon  v.  Atlas  Steamship  Co.  .  504 

Calye's  case 163 

Campbell  v.  Conner 839 

Case  v.  Allen 84 

Casey  v.  Cavoroc 104 

Central  R.  Co.  v.  Combs  ....  1045 

Chapman  v.  State 155 

Chase  v.  Alliance  Ins.  Co.    .     .     .  831 

Chicago,  etc.  R.  Co.  v.  Flexman    .  969 

v.  Iowa 377 

v.  Jenkins 836 

v.  People 354 

v.  Williams 1082 

Christie  v.  Griggs 928 

Citizens'  Bank  v.  Nantucket  Steam- 
boat Co 303 

Clancy  v.  Barker 185 

Clark  v.  Burns 347 

Clarke  v.  Rochester,  etc.  R.  Co.     .  418 

Clute  v.  Wiggins 200 

Coggs  v.  Bernard 4 

Colt  v.  McMechen 392 

Congar  v.  Chicago,  etc.  R.  Co.      .  407 
Constable  v.  National  Steamship 

Co 443 

Cook  v.  Kane 254 

Coup  v.  Wabash,  etc.  Ry.  Co.  .     .  315 

Curling  v.  Long 803 

Dale  v.  Hall 773 

Danielson  v.  Roberts 24 

Davis  v.  Garret 439 

v.  James 753 

Dawes  v.  Peck 754 

Dean  v.  Driggs 580 

Delaware,  The 561 

Doane  v.  Russell 90 

Dolliff  v.  Robbins 147 

Doolittle  v.  Shaw 49 

Doorman  v.  Jenkins 53 

Drake  v.  White 116 

Duff  v.  Allegheny  V.  R.  Co.     .     .  916 

Durfee  v.  Jones       21 

Dwight  v.  Brewster 304 


XV111 


TABLE    OF    CASES. 


Edmunds    v.     Merchants'     Desp. 

Transp.  Co.     .     .  .... 

Edwards    V.    White    Line    Transit 

Co 

Elkins  v.  Boston  &  Maine  R.  .  . 
Empire  Transp.  Co.  v.  Wamsutta 

( )il,  etc.  Co 

Epps  v.  Hinds 

Evans  v.  Fitchburg  11.  Co.  .  . 
Everett  v.  Chicago,  etc.  R.  Co. .  . 
Express  Co.  v.  Caldwell  .... 

Faucett  v.  Nichols 

Faucher  v.  Wilson  ...... 

Faulkner  v.  Hart 

Fay  v.  Pacific  Improvement  I 
Fick  v.  Chicago  &  N.  W.  R.  Co.    . 
Filer  v.  New  York  C.  R.  Co.      .     . 

Finn  v.  Western  R.  Co 

First  National  Bank  v.  Graham     . 
v.  Marietta,  etc.  R.  Co.    .     . 

Fisher  v.  Kelsey 

Fletcher  v.  Fletcher 

Flint,  etc.  R.  Co.  v.  Weir     . 

Forward  v.  Pittard 

Foster  v.  Metts 

Frank  v.  Ingalls 

Frederick   v.    Marquette,   etc.    R. 

Co 

Freeman  v.  Birch 

Friend  v.  Woods 


710 

744 

770 

707 
220 
421 
1054 
530 


429 
080 
223 
072 
995 
758 

63 
344 
242 

38 

305 

385 

278 

1047 

1060 
700 
395 


Galveston  H.   &  S.   A.   R,  Co.  v. 

Wallace 

Garden  Grove  Bank  v.  Humeston, 

etc.  R.  Co 

Geilfuss  v.  Corrigan 

Geismer  v.  Lake  Shore,  etc.  R.  Co. 

Gibbon  v.  Pay  n  ton 

Gilbert  v.  Hoffman 

Gilshannon  v.  Stony  Brook  R.  Co. 
Gisbourn  v.  Hurst n. 


054 

569 

110 
437 
452 
183 
908 
300 
958 
301 
548 
949 
516 
300 


Gleeson  v.  Virginia  Midland  R.  Co. 

Gordon  v.  Hutchinson      .... 

Grace  v.  Adams.     ...... 

Grand  Rapids,  etc.  R.Co.  v.  Huntley 

Graves  v.  Lake  Shore,  etc.  R.  Co. . 

Gray  v.  Missouri  River  Packet  Co. 

Great  Northern  Railway  v.  Shep- 
herd   338 

Green  v.  Milwaukee,  etc.  R.  Co.    .     352 

Grinnell  v.  Cook 70 

Grosvenor  v.  New  York  Central 
R.  Co 340 

Gulf  Compress  Co.  v.  Harrington       137 

Hale  v.  New  Jersey  Steam  Nav.  Co.  311 

Hall  v.  Renfro 313 

Hancock  v.  Rand 170 

Hannibal  Railroad  v.  Swift  .     .     .  342 

Harris  v.  Packwood 450 

Hart  v.  Chicago,  etc.  R.  Co.     .     .  416 

Henderson  v.  Louisville,  etc.  R.  Co.  343 

Hoar  v.  Maine  C.  R.  Co.      ...  807 


PAGE 

Hollister  v.  Nowlen 465 

Houston  &  T.  C.  R,  Co.  v.  Moore  870 

Hulett  v.  Swift 212 

Hutchinson  v.  United  States  Ex.  Co.  610 

Hyde  v.  Navigation  Co 596 

Idaho,  The 588,  690 

Illinois  Cent.  R.  Co.  v.  Green   .     .     986 

v.  Whittemore 1080 

Ingalls  v.  Bills .     929 

Jacobus  v.  St.  Paul,  etc.  R.  Co.    .  1023 

Jalie  v.  Cardinal 228 

Jefferson  vide  R.  Co.  v.  Rogers      .  1051 

Jencks  v.  Coleman 891 

Jenkins  v.  Bacon 46 

Jensen  v.  Eagle  Ore  Co 43 

Jerome  v.  Smith 1029 

Johnson  v.  Chadborn  Finance  Co.  218 

Judson  v.  Western  R.  Co.    .     .     .  477 

Kansas  City,  etc.  R.  Co.  v.  Mc- 

Gahey 339,636 

v.  Morrison 335 

v.  Riley        1072 

Keeley  v.  Boston  &  Maine  R.  Co.  1034 
Kiff  v.  Atchison,  etc.  R.  Co.  .  n.  560 
v.  Old  Colony,  etc.  R.  Co.  .  746 
Kinnick  v.  Chicago,  etc.  R.  Co.  .  423 
Kirst  v.  Milwaukee,  etc.  R.  Co.     .     800 

Kisten  v.  Hildebrand 107 

Knott  v.  Botany  Mills      ....     510 
Knowles  v.   Atlantic  &  St.    Law. 

R.  Co 58 

Krulder  v.  Ellison 766 

Lambert  v.  Nicklass    .....       93 

Lane  v .  Cotton 261 

Lewis  v.  Louisville  &  N.  R.  Co.     .     623 
v.  New  York  Sleeping  Car  Co.     345 
Liverpool   Steam   Co.    v.   Phoenix 
Ins.  Co 311,  489 

Mc  Arthur  &  Hurlbert  v.  Sears       .  812 

McAvoy  v.  Medina 20 

McEntee  v.  New  Jersey  Steamboat 

Co 678 

McFadden  v.  Missouri  Pacific  R. 

Co.    .     .     • 519 

McPadden  v.  N.  Y.  C.  R.  Co.    .     .  045 

Main,  The,  v.  Williams    ....  408 

Markham  v.  Brown 245 

Marquette,  etc.   R.    Co.   v.    Kirk- 
wood      789 

Martin,  The  D.  R 885 

Masonic    Sav.     Bank    v.    Bang's 

Adm'r 129 

Meier  v.  Pennsylvania  R.  Co.     .     .  937 

Merian  v.  Funck 823 

Merritt  v.  Claghorn 202 

Michigan  Central  R.  Co.  v.  Carrow  340 
Michigan  Southern,  etc.  R.  Co.  v. 

Shurtz 353 

Miltirnore  v.  Chicago,  etc.  R.  Co.  409 


TABLE    OF    CASES. 


XIX 


PAGE 

Missouri,  K.  &  T.  R.  Co.  v.  Harri- 

man        530 

Montgomery,  etc.  R.  Co.  v.  Culver  792 
Montrose  Tickle  Co.  v.  Dodson,  etc. 

Co 751 

Morrison  v.  Erie  R.  Co 990 

Morse  v.  Slue 402 

Moses  v.  Grainger 133 

Munn  v.  Illinois 289 

Murdock  v.  Boston,  etc.  R.  Co.     .  1067 
Muschamn    v.    Lancaster,  etc.  R. 

Co. 646 

Mynard  v.  Syracuse,  etc.  R.  Co.     n.  493 

Nashville,    etc.    R.    Co.  v.  Spray- 
berry      1042 

National     Safe    Deposit     Co.     v. 

Stead 33 

Neaffie,  The 313 

Nevin  v.  Pullman  P.  Car  Co.     .     .  877 

Newhall  v.  Central  Pacific  R.  Co.  718 

Nolton  v.  Western  R.  Co.      ...  904 
Norway   Plains    Co.   v.   Boston   & 

M.  R 016 

Nurin  v.  Georgia  R 1006 

Nutting    v.     Connecticut     R.     R. 

Co 652 

O'Brien  v.  Gilchrist 575 

Ohio,  etc.  R.  Co.  v.  Yohe      .     .     .  739 

Old  Colony  R.  Co.  v.  Tripp        .     .  894 

Orange  County  Bank  v.  Brown      .  322 

Orchard  v.  Bush 175 

Packard  v.  Earl 605 

Pennsylvania  R.  Co.  v.  American 

Oil  Works 721 

v.  Stern 680 

Pershing  v.  Chicago,  etc.  R.  Co.    .  952 

Peterson  v.  Chicago,  etc.  R.  Co.     .  663 

Philadelphia,  etc.  R.  Co.  v.  Rice    .  1069 

Phillips  v.  Rodie 833 

Pierce  v.  Milwaukee,  etc.  R.  Co.    .  307 

Pittsburg,  etc.  R.  Co.  v.  Hinds      .  981 

Pollard  v.  Vinton 588 

Potts  v.  New  York,  etc.  R.  Co.      .  837 

Powell  v.  Myers 696 

Pozzi  v.  Shipton 778 

Preston  v.  Prather 66 

Price  v.  Oswego,  etc.  R.  Co.       .     .  700 

Proprietors,  etc.  v.  Wood      .     .     .  383 

Pulliam  v.  Burlingame      ....  39 

Pullman  Palace  Car  Co.  v.  Smith    .  179 

Putnam  v.  Broadway,  etc.  R.  Co.    .  975 

Quimby  v.  Boston  &  Maine  R.  Co.  1018 

Quinton  v.  Courtney 201 

Ra°;an  v.  Aiken 376 

Railroad  Co.  v.  Fraloff     ....  329 

v.  Manufacturing  Co.      .     .     .  642 

v.  Reeves 398 

v.  Walrath 964 

Railway  Co.  v.  Stevens    ....  1010 


PAGE 

Ramsden  v.  Boston,  etc.  R.  Co.     .  967 
Reagan  v.  Farmers'  Loan  &  Trust 

Co 380 

Relyea  v.  New  Haven  Rolling  Mill 

Co 577 

Rex  v.  Ivens 165 

Ridgway    Grain    Co.  v.  Pennsyl- 
vania R.  Co 546 

Riley  v.  Home 461 

Roberts  v.  Koehler 849 

v.  Turner 320 

Robins  v.  Gray        258 

Robinson  v.  Baker 852 

v.  Hurley 121 

Rodgers  v.  Stophel 153 

St.  Joseph,  etc.  R.  Co.  v.  Wheeler  917 

St.  Losky  v.  Davidson      ....  115 

Samuel  v.  Cheney 706 

Sanborn  v.  Kimball 73 

Sargent  v.  Boston,  etc.  R.  Co.    .     .  364 

v.  Usher       82 

Sawyer  v.  Corse 270 

Sayward  v.  Stevens 809 

Scaife  v.  Tobin 826 

Schmidt  v.  Blood 136 

Scovill  v.  Griffith 430 

Sears  v.  Eastern  R.  Co 1003 

Sensenbrenner  v.  Mathews  ...  89 

Shaw  v.  Railroad  Co 685 

Shelton      v.     Merchants'      Desp. 

Transp.  Co 552 

Shoemaker  v.  Kingsbury       .     .     .  863 

Shriver  v.  Sioux  City,  etc.  R.  Co.  786 

Sibley  v.  Aldrich 206 

Singer    v.    Merchants'     Despatch 

Transp.  Co 715 

Singer  Manufacturing  Co.  v.  Miller  257 

Sinsheimer  v.  Whiteley    ....  140 
Sioux  City,  etc.  R.  Co.  v.  First  Nat. 

Bank 592 

Skinner  v.  Upshaw 833 

Sleeper  v.  Pennsylvania  R.  Co.     .  1049 

Small  v.  Robinson 88 

Smith  v.  Seward 780 

South   Staffordshire  Water  Co.  v. 

Sharman 2J 

Southcote's  Case 

Southern  Exp.  Co.  v.  Womack  .     .  403 

Sprague  v.  Missouri  Pac.  R.  Co.     .  542 

State  v.  Cincinnati,  etc.  R.  C.    .     .  372 

v.  Overton 1032 

^.Steele 248 

Steamboat  Lynx  v.  King       .     .     .  445 

Steamboat  New  World  v.  King      .  940 

Steamboat  Virginia  v.  Kraft      .     .  841 

Stearns  v.  Marsh l^8 

Steinman  v.  Wilkins ^■;'_l 

Stiles  v.  Davis '•""' 

Swan  v.  Manchester,  etc.  R.  Co.    .  1076 

Sweet  v.  Barney ^^ 

Tarbell  v.  Central  Pac.  R.  Co.  .     .  910 

Thurston  v.  Union  Pac.  R.  Co.     .  888 


XX 


TABLE   OF   CASES. 


PAGE 

Tindal  v.  Taylor 805 

Toledo,  etc.  R.  Co.  v.  Brooks    .     .  922 

Townsend  v.  N.  Y.  Cent.  R.  Co.     .  1057 

Transportation  Co.  v.  Block      .     .  322 

v.  Downer 783 

Trent  Nav.  Co.  v.  Wood  ....  383 

Vinton  v.  Middlesex  R.  Co.     .     .  889 

Waite  v.  Northeastern   R.  Co.     .  999 

Walker  v.  Staples 103 

Walpert  v.  Bohan 177 

Wamser  v.  Browning 36 

Waterbury  v.  N.  Y.  Cen.  R.  Co.  914 

Way  v.  Chicago,  etc.  R.  Co.     .     .  924 

v.  Davidson 39 

Wegener  v.  Smith 828 

Weisengen  v.  Taylor 227 


PAGE 

Wells  v.  Thomas 843 

Wernwagw.  Philadelphia,  etc.  R.Co.  711 
Western  Transp.  Co.  v.  Hoyt     .     .817 

Weyand  v.  Atchison,  etc.  R.  Co.  081 

White  v.  Phelps 123 

v.  Winnisimmet  Co 412 

Wilke  v.  Illinois  Central  R.  Co.     .  426 

Wilkins  v.  Earle 237 

Willey  v.  Allegheny  City     ...  159 

Williams  v.  Allsup 81 

Wilson  v.  Brett 56 

v.  Little        98 

Wilton  v.  Middlesex  R.  Co.     .     .  912 

Winkfield,  The 14,  288 

Wiser  v.  Chesley 61 

Witbeck  v.  Holland 606 

Woodward  v.  Semans       ....  32 

Wooster  v.  Tarr 822 


I-VI 
BAILMENTS 


CASES 


ON 


BAILMENTS   AND   CARRIERS. 


I.    ORDINARY   BAILMENTS. 
1.   RELATIONS   OF   BAILOR   AND   BAILEE. 

a.    In  general. 


SOUTHCOTE'S  CASE. 
King's  Bench.     4  Coke,  83  b.     1600. 

Southcote  brought  Detinue  against  Bennet  for  certain  goods,  and 
declared,  that  he  delivered  them  to  the  defendant  to  keep  safe ;  the 
defendant  confessed  the  delivery,  and  pleaded  in  bar  that  after  the 
delivery  one  J.  S.  stole  them  feloniously  out  of  his  possession :  the 
plaintiff  replied,  that  the  said  J.  S.  was  the  defendant's  servant  retained 
in  his  service,  and  demanded  judgment,  &c.  And  thereupon  the  de- 
fendant demurred  in  law,  and  judgment  was  given  for  the  plaintiff : 
and  the  reason  and  cause  of  their  judgment  was,  because  the  plaintiff 
delivered  the  goods  to  be  safe  kept,  and  the  defendant  had  took  it 
upon  him  by  the  acceptance  upon  such  delivery,  and  therefore  he  ought 
to  keep  them  at  his  peril,  although  in  such  case  he  should  have  noth- 
ing for  his  safe  keeping.  So  if  A.  delivers  goods  to  B.  generally  to  be 
kept  by  him,  and  B.  accepts  them  without  having  anything  for  it,  if 
the  goods  are  stole  from  him,  yet  he  shall  be  charged  in  Detinue;  for 
to  be  kept,  and  to  be  kept  safe,  is  all  one.  But  if  A.  accepts  goods  of  B. 
to  keep  them  as  he  would  keep  his  own  proper  goods,  there,  if  the 
goods  are  stolen,  he  shall  not  answer  for  them :  or  if  goods  are  pawned 
or  pledged  to  him  for  money,  and  the  goods  are  stolen,  he  shall  not 
answer  for  them,  for  there  he  doth  not  undertake  to  keep  them  but  as 
he  keeps  his  own;  for  he  has  a  property  in  them  and  not  a  custody 
only,  and  therefore  he  shall  not  be  charged  as  it  is  adjudged  in  29  Ass. 
28.     But  if  before  the  stealing  he  who  pawned  them  tendered  the 

3 


4  ORDINARY    BAILMENTS. 

money,  and  the  other  refused,  then  there  is  fault  in  him ;  and  then 
the  stealing  after  such  tender,  as  it  is  there  held,  shall  not  discharge 
him :  so  if  A.  delivers  to  B.  a  chest  locked  to  keep,  and  he  himself 
carries  away  the  key,  in  that  case  if  the  goods  are  stolen,  B.  shall  not 
be  charged,  for  A.  did  not  trust  B.  with  them,  nor  did  B.  undertake  to 
keep  them,  as  it  is  adjudged  in  8  E.  2.  Detinue  59.  So  the  doubt  which 
was  conceived  upon  sundry  differing  opinions  in  our  books,  in  29  Ass. 
28.  3  H.  7.  4.  6  H.  7.  12.  10  H.  7.  26.  of  Keble  and  Fineux,  are  well 
reconciled,  vide  Bract,  lib.  2.  fol.  62  b.  But  in  accompt  it  is  a  good  plea 
before  the  auditors  for  the  factor,  that  he  was  robbed,  as  appears  by 
the  books  in  12  (22)  E.  3.  Accompt  111.  41  E.  3.  3.  and  9  E.  4.  40.  For 
if  a  factor  (although  he  has  wages  and  salary)  does  all  that  which  he 
by  his  industry  can  do,  he  shall  be  discharged,  and  he  takes  nothing 
upon  him,  but  his  duty  is  as  a  servant  to  merchandize  the  best  that 
he  can,  and  a  servant  is  bound  to  perform  the  command  of  his  master : 
but  a  ferryman,  common  inn-keeper,  or  carrier,  who  takes  hire,  ought 
to  keep  the  goods  in  their  custody  safely  and  shall  not  be  discharged 
if  they  are  stolen  by  thieves,  vide  22  Ass.  41  Br.  Action  sur  le  Case  78. 
And  the  Court  held  the  replication  idle  and  vain,  for  rum  referi  by  whom 
the  defendant  was  robbed,  vide  33  H.  6.  (1.)  31  a.  b.  If  traitors  break 
a  prison,  it  shall  not  discharge  the  gaoler;  otherwise  of  the  King's 
enemies  of  another  kingdom ;  for  in  the  one  case  he  may  have  his 
remedy  and  recompence,  and  in  the  other  not.  Nota  reader,  it  is  good 
policy  for  him  who  takes  any  goods  to  keep,  to  take  them  in  special 
manner,  sell,  to  keep  them  as  he  keeps  his  own  goods,  or  to  keep  them 
the  best  he  can  at  the  peril  of  the  party ;  or  if  they  happen  to  be  stolen 
or  purloined,  that  he  shall  not  answer  for  them  ;  for  he  who  accepteth 
them,  ought  to  take  them  in  such  or  the  like  manner,  or  otherwise  he 
may  be  charged  by  his  general  acceptance.  So  if  goods  are  delivered 
to  one  to  be  delivered  over,  it  is  good  policy  to  provide  for  himself  in 
such  special  manner,  for  doubt  of  being  charged  by  his  general  accep- 
tance, which  implies  that  he  takes  upon  him  to  do  it. 


COGGS  v.   BERNARD. 
King's  Bench.     2  Ld.  Raym.  909.1     1703. 

[The  statement,  and  the  opinions  of  Gould,  Powys,  and  Powell,  Jus- 
tices, are  omitted.] 

Holt,  C.  J.     The  case  is  shortly  this.     This  defendant  undertakes 

to  remove  goods  from  one  cellar  to  another,  and  there  lay  them  down 

safely,  and  he  managed  them  so  negligently,  that  for  want  of  care  in 

him  some  of  the  goods  were  spoiled.     Upon  not  guilty  pleaded,  there 

1  Also  reported,  Comyns,  133  ;  1  Salk.  26  ;  3  Salk.  11 ;  Holt,  13. 


RELATIONS    OF    BAILOR    AND    BAILEE.  5 

has  been  a  verdict  for  the  plaintiff,  and  that  upon  full  evidence,  the 
cause  being  tried  before  me  at  Guildhall.  There  has  been  a  motion  in 
arrest  of  judgment,  that  the  declaration  is  insufficient,  because  the 
defendant  is  neither  laid  to  be  a  common  porter,  nor  that  he  is  to  have 
any  reward  for  his  labour.  So  that  the  defendant  is  not  chargeable 
by  his  trade,  and  a  private  person  cannot  be  charged  in  an  action 
without  a  reward. 

I  have  had  a  great  consideration  of  this  case,  and  because  some  of 
the  books  make  the  action  lie  upon  the  reward,  and  some  upon  the 
promise,  at  first  I  made  a  great  question,  whether  this  declaration  was 
good.  But  upon  consideration,  as  this  declaration  is,  I  think  the  action 
will  well  lie.  In  order  to  shew  the  grounds,  upon  which  a  man  shall 
be  charged  with  goods  put  into  his  custody,  I  must  shew  the  several 
sorts  of  bailments.  And  there  are  six  sorts  of  bailments.  The  first 
sort  of  bailment  is,  a  bare  naked  bailment  of  goods,  delivered  by  one 
man  to  another  to  keep  for  the  use  of  the  bailor ;  and  this  I  call  a 
deposition,  and  it  is  that  sort  of  bailment  which  is  mentioned  in  South- 
cote's  case.  The  second  sort  is,  when  goods  or  chattels  that  are  useful, 
are  lent  to  a  friend  gratis,  to  be  used  by  him  ;  and  this  is  called  commo- 
datum,  because  the  thing  is  to  be  restored  in  specie.  The  third  sort  is, 
when  goods  are  left  with  the  bailee  to  be  used  by  him  for  hire ;  this  is 
called  locatio  et  conductio,  and  the  lender  is  called  locator,  and  the  bor- 
rower conductor.  The  fourth  sort  is,  when  goods  or  chattels  are  deliv- 
ered to  another  as  a  pawn,  to  be  a  security  to  him  for  money  borrowed 
of  him  by  the  bailor ;  and  this  is  called  in  Latin  vadium,  and  in  English 
a  pawn  or  a  pledge.  The  fifth  sort  is  when  goods  or  chattels  are  deliv- 
ered to  be  carried,  or  something  is  to  be  done  about  them  for  a  reward 
to  be  paid  by  the  person  who  delivers  them  to  the  bailee,  who  is  to  do 
the  thing  about  them.  The  sixth  sort  is  when  there  is  a  delivery  of 
goods  or  chattels  to  somebody,  who  is  to  carry  them,  or  do  something 
about  them  gratis,  without  any  reward  for  such  his  work  or  carriage, 
which  is  this  present  case.  I  mention  these  things,  not  so  much  that 
they  are  all  of  them  so  necessary  in  order  to  maintain  the  proposition 
which  is  to  be  proved,  as  to  clear  the  reason  of  the  obligation,  which 
is  upon  persons  in  cases  of  trust. 

As  to  the  first  sort,  where  a  man  takes  goods  in  his  custody  to  keep 
for  the  use  of  the  bailor,  I  shall  consider,  for  what  things  such  a  bailee 
is  answerable.  He  is  not  answerable,  if  they  are  stole  without  any  fault 
in  him,  neither  will  a  common  neglect  make  him  chargeable,  but  he 
must  be  guilty  of  some  gross  neglect.  There  is,  I  confess,  a  great  author- 
ity against  me,  where  it  is  held,  that  a  general  delivery  will  charge  the 
bailee  to  answer  for  the  goods  if  they  are  stolen,  unless  the  goods  are 
specially  accepted,  to  keep  them  only  as  you  will  keep  your  own.  But 
my  lord  Coke  has  improved  the  case  in  his  report  of  it,  for  he  will  have 
it,  that  there  is  no  difference  between  a  special  acceptance  to  keep  safely, 
and  an  acceptance  generally  to  keep.     But  there  is  no  reason  nor  jus.- 


6  ORDINARY   BAILMENTS. 

tice  in  such  a  case  of  a  general  bailment,  and  where  the  bailee  is  not 
to  have  any  reward,  but  keeps  the  goods  merely  for  the  use  of  the  bailor, 
to  charge  him  without  some  default  in  him.  For  if  he  keeps  the  goods 
in  such  a  case  with  an  ordinary  care,  he  has  performed  the  trust  reposed 
in  him.  But  according  to  this  doctrine  the  bailee  must  answer  for  the 
wrongs  of  other  people,  which  he  is  not,  nor  cannot  be,  sufficiently  armed 
against.  If  the  law  be  so,  there  must  be  some  just  and  honest  reason 
for  it,  or  else  some  universal  settled  rule  of  law,  upon  which  it  is 
grounded;  and  therefore  it  is  incumbent  upon  them,  that  advance 
this  doctrine,  to  shew  an  undisturbed  rule  and  practice  of  the  law  accord- 
ing to  this  position.  But  to  shew  that  the  tenor  of  the  law  was  always 
otherwise,  I  shall  give  a  history  of  the  authorities  in  the  books  in  this 
matter,  and  by  them  shew,  that  there  never  was  any  such  resolution 
given  before  Southcote's  case.  The  29  Ass.  28.  is  the  first  case  in  the 
books  upon  that  learning,  and  there  the  opinion  is,  that  the  bailee  is 
not  chargeable,  if  the  goods  are  stole.  As  for  8  Edw.  2.  Fitz.  Detinue, 
59.  where  goods  were  locked  in  a  chest,  and  left  with  the  bailee,  and  the 
owner  took  away  the  key,  and  the  goods  were  stolen,  and  it  was  held 
that  the  bailee  should  not  answer  for  the  goods.  That  case  they  say 
differs,  because  the  bailor  did  not  trust  the  bailee  with  them.  But  I 
cannot  see  the  reason  of  that  difference,  nor  why  the  bailee  should 
not  be  charged  with  goods  in  a  chest,  as  well  as  with  goods  out  of  a 
chest.  For  the  bailee  has  as  little  power  over  them,  when  they  are  out 
of  a  chest,  as  to  any  benefit  he  might  have  by  them,  as  when  they  are 
in  a  chest ;  and  he  has  as  great  power  to  defend  them  in  one  case  as 
in  the  other.  The  case  of  9  Edw.  4.  40.  b.  was  but  a  debate  at  bar. 
For  Danby  was  but  a  counsel  then,  though  he  had  been  chief  justice  in 
the  beginning  of  Ed.  4.  yet  he  was  removed,  and  restored  again  upon 
the  restitution  of  Hen.  6.  as  appears  by  Dugdale's  Chronica  Series. 
So  that  what  he  said  cannot  be  taken  to  be  any  authority,  for  he  spoke 
only  for  his  client ;  and  Genney  for  his  client  said  the  contrary.  The 
case  in  3  Hen.  7.  4.  is  but  a  sudden  opinion  and  that  but  by  half  the 
court;  and  yet  that  is  the  only  ground  for  this  opinion  of  my  lord 
Coke,  which  besides  he  has  improved.  But  the  practice  has  been  al- 
ways at  Guildhall,  to  disallow  that  to  be  a  sufficient  evidence,  to  charge 
the  bailee.  And  it  was  practised  so  before  my  time,  all  chief  justice 
Pemberton's  time,  and  ever  since,  against  the  opinion  of  that  case. 
When  I  read  Southcote's  case  heretofore,  I  was  not  so  discerning  as 
my  brother  Powys  tells  us  he  was,  to  disallow  that  case  at  first,  and  came 
not  to  be  of  this  opinion,  till  I  had  well  considered  and  digested  that 
matter.  Though  I  must  confess  reason  is  strong  against  the  case  to 
charge  a  man  for  doing  such  a  friendly  act  for  his  friend,  but  so  far  is 
the  law  from  being  so  unreasonable,  that  such  a  bailee  is  the  least 
chargeable  for  neglect  of  any.  For  if  he  keeps  the  goods  bailed  to  him, 
but  as  he  keeps  his  own,  though  he  keeps  his  own  but  negligently, 
yet  he  is  not  chargeable  for  them,  for  the  keeping  them  as  he  keeps 


RELATIONS    OF    BAILOR   AND    BAILEE.  7 

his  own,  is  an  argument  of  his  honesty.  A  fortiori  he  shall  not  be 
charged,  where  they  are  stolen  without  any  neglect  in  him.  Agree- 
able to  this  is  Bracton,  lib.  3.  c.  2.  99.  b.  J.  S.  apud  quern  res  deponitur, 
re  obligatur,  et  de  ea  re,  quam  accepit,  restituenda  tenatur,  et  etiam  ad  id, 
si  quid  in  re  deposita  dolo  commiserit ;  culpae  autem  nomine  non  tenetur, 
scilicet  desidiae  vel  negligentiae,  quia  qui  negligenti  amico  rem  custodien- 
dam  tradit,  sibi  ipsi  et  propriae  fatuitati  hoc  debet  imputare.  As  suppose 
the  bailee  is  an  idle,  careless,  drunken  fellow,  and  comes  home  drunk, 
and  leaves  all  his  doors  open,  and  by  reason  thereof  the  goods  happen  to 
be  stolen  with  his  own ;  yet  he  shall  not  be  charged,  because  it  is  the 
bailor's  own  folly  to  trust  such  an  idle  fellow.  So  that  this  sort  of 
bailee  is  the  least  responsible  for  neglects,  and  under  the  least  obliga- 
tion of  any  one,  being  bound  to  no  other  care  of  the  bailed  goods,  than 
he  takes  of  his  own.  This  Bracton  I  have  cited  is,  I  confess,  an  old 
author,  but  in  this  his  doctrine  is  agreeable  to  reason,  and  to  what  the 
law  is  in  other  countries.  The  civil  law  is  so,  as  you  have  it  in  Justin- 
ian's Inst.  lib.  3.  tit.  15.  There  the  law  goes  farther,  for  there  it  is 
said,  ex  eo  solo  tenetur,  si  quid  dolo  commiserit:  culpae  autem  nomine, 
id  est,  desidiae  ac  negligentiae,  non  tenetur.  Itaque  securus  est  qui  parum 
delig enter  custoditam  rem  furto  amiserit,  quia  qui  negligenti  amico  rem 
custodiendam  tradit  non  ei,  sed  suae  facilitati  id  imputare  debet.  So 
that  a  bailee  is  not  chargeable  without  an  apparent  gross  neglect. 
And  if  there  is  such  a  gross  neglect,  it  is  looked  upon  as  an  evidence  of 
fraud.  Nay,  suppose  the  bailee  undertakes  safely  and  securely  to  keep 
the  goods,  in  express  words,  yet  even  that  won't  charge  him  with  all 
sorts  of  neglects.  For  if  such  a  promise  were  put  into  writing,  it  would 
not  charge  so  far,  even  then.  Hob.  34.  a  covenant,  that  the  covenantee 
shall  have,  occupy  and  enjoy  certain  lands,  does  not  bind  against  the 
acts  of  wrong  doers.  3  Cro.  214.  ace.  2  Cro.  425.  ace.  upon  a  promise 
for  quiet  enjoyment.  And  if  a  promise  will  not  charge  a  man  against 
wrong  doers,  when  put  in  writing,  it  is  hard  it  should  do  it  more  so, 
when  spoken.  Doct.  &  Stud.  130.  is  in  point,  that  though  a  bailee  do 
promise  to  re-deliver  goods  safely,  yet  if  he  have  nothing  for  the  keeping 
of  them,  he  will  not  be  answerable  for  the  acts  of  a  wrong  doer.  So 
that  there  is  neither  sufficient  reason  nor  authority  to  support  the 
opinion  in  Southcote's  case ;  if  the  bailee  be  guilty  of  gross  negligence, 
he  will  be  chargeable,  but  not  for  any  ordinary  neglect.  As  to  the 
second  sort  of  bailment,  viz.  commodatum  or  lending  gratis,  the  bor- 
rower is  bound  to  the  strictest  care  and  diligence,  to  keep  the  goods, 
so  as  to  restore  them  back  again  to  the  lender,  because  the  bailee  has 
a  benefit  by  the  use  of  them,  so  as  if  the  bailee  be  guilty  of  the  least 
neglect,  he  will  be  answerable  ;  as  if  a  man  should  lend  another  a  horse, 
to  go  Westward,  or  for  a  month ;  if  the  bailee  go  Northward  or  keep 
the  horse  above  a  month  ;  if  any  accident  happen  to  the  horse  in  the 
Northern  journey,  or  after  the  expiration  of  the  month,  the  bailee  will 
be  chargeable ;   because  he  has  made  use  of  the  horse  contrary  to  the 


8  ORDINARY   BAILMENTS. 

trust  he  was  lent  to  him  under,  and  it  may  be  if  the  horse  had  been  used 
no  otherwise  than  he  was  lent,  that  accident  would  not  have  befallen 
him.  This  is  mentioned  in  Bracton  ubi  supra:  his  words  are,  is  autem 
cut  res  aliqua  utenda  datur,  re  obligatur,  quae  commodata  est,  sed  magna 
differentia  est  inter  mutuum  et  commodatum;  quia  is  qui  rem  mutuant 
accepit,  ad  ipsam  restituendam  tenet ur,  vel  ejus  pretium,  si  forte  incendio, 
ruina,  naufragio,  aid  latronum  vel  bostium  ineursu,  consumta  fuerit,  vel 
deperdita,  sublracta  vel  ablata.  Et  qui  rem  utendam  accepit,  non  sufficit 
ad  rei  custodiam,  quod  talem  diligentiam  adhibeat,  qualem  suis  rebus 
propriis  adhibcrc  solet,  si  alius  earn  diligentius  potuit  custodire;  ad  vim 
autem  majorem,  vel  casus  fort  u  it  us  non  tenet  ur  qui*,  nisi  culpa  sua  inter- 
venerit.  Ut  si  run  sibi  commodatum  domi,  secum  detulerit  cum  peregre 
profectus  fuerit,  et  illam  ineursu  bostium  vel  praedonum,  vel  naufragio 
amiserit  non  est  dubium  quin  ad  rei  restitutionem  teneatw.  I  cite  this 
author,  though  I  confess  he  is  an  old  one,  because  his  opinion  is  reason- 
able,- and  very  much  to  my  present  purpose,  and  there  is  no  authority 
in  the  law  to  the  contrary.  But  if  the  bail(  e  put  this  horse  in  his  stable, 
and  he  were  stolen  from  thence,  the  bailee  shall  not  be  answerable  for 
him.  But  if  he  or  his  servant  leave  the  house  or  stable  doors  open, 
and  the  thieves  take  the  opportunity  of  that,  and  steal  the  horse,  he 
will  be  chargeable ;  because  the  neglect  gave  the  thieves  the  occasion 
to  steal  the  horse.  Bracton  says,  the  bailee  must  use  the  utmost  care, 
but  yet  he  shall  not  be  chargeable,  where  there  is  such  a  force  as  he 
cannot  resist. 

As  to  the  third  sort  of  bailment,  scilicet  locatio  or  lending  for  hire,  in 
this  case  the  bailee  is  also  bound  to  take  the  utmost  care  and  to  return 
the  goods,  when  the  time  of  the  hiring  is  expired.  And  here  again  I 
must  recur  to  my  old  author,  fol.  62.  b.  Qui  pro  usu  vestimentorum  auri 
vel  argenti,  vel  alterius  ornamenti,  vel  jumenti,  mercedem  dederit  vel  promi- 
serit,  talis  ab  eo  desidcratur  custodia;  qualem  deligentissimus  paterfami- 
lias suis  rebus  adhibet,  quam  si  praestiterit,  et  rem  aliquo  casu  amiserit, 
ad  rem  restituendam  non  tent  bifur.  Nee  sufficit  aliquem  talem  diligentiam 
adhibere,  qualem  suis  rebus  propriis  adhiberet,  nisi  talem  adhibuerit,  de 
qua  superius  dictum  est.  From  whence  it  appears,  that  if  goods  are 
let  out  for  a  reward,  the  hirer  is  bound  to  the  utmost  diligence,  such  as 
the  most  diligent  father  of  a  family  uses ;  and  if  he  uses  that,  he  shall 
be  discharged.  But  every  man,  how  diligent  soever  he  be,  being  liable 
to  the  accident  of  robbers,  though  a  diligent  .man  is  not  so  liable  as  a 
careless  man,  the  bailee  shall  not  be  answerable  in  this  case,  if  the  goods 
are  stolen. 

As  to  the  fourth  sort  of  bailment,  viz.  vadium  or  a  pawn,  in  this  I 
shall  consider  two  things ;  first,  what  property  the  pawnee  has  in  the 
pawn  or  pledge,  and  secondly  for  what  neglects  he  shall  make  satisfac- 
tion. As  to  the  first,  he  has  a  special  property,  for  the  pawn  is  a  secur- 
ing to  the  pawnee,  that  he  shall  be  repaid  his  debt,  and  to  compel  the 
pawner  to  pay  him.     But  if  the  pawn  be  such  as  it  will  be  the  worse 


RELATIONS    OF    BAILOR   AND   BAILEE.  9 

for  using,  the  pawnee  cannot  use  it,  as  cloaths,  &c.,  but  if  it  be  such, 
as  will  be  never  the  worse,  as  if  jewels  for  the  purpose  were  pawned  to 
a  lady,  she  might  use  them.     But  then  she  must  do  it  at  her  peril,  for 
whereas,  if  she  keeps  them  locked  up  in  her  cabinet,  if  her  cabinet 
should  be  broken  open,  and  the  jewels  taken  from  thence,  she  would  be 
excused ;    if  she  wears  them  abroad,  and  is  there  robbed  of  them,  she 
will  be  answerable.     And  the  reason  is,  because  the  pawn  is  in  the 
nature  of  a  deposit,  and  as  such  is  not  liable  to  be  used.     And  to  this 
effect  is  Ow.  123.     But  if  the  pawn  be  of  such  a  nature,  as  the  pawnee  is 
at  any  charge  about  the  thing  pawned,  to  maintain  it,  as  a  horse,  cow, 
&c.  then  the  pawnee  may  use  the  horse  in  a  reasonable  manner,  or  milk 
the  cow,  &c.  in  recompense  for  the  meat.     As  to  the  second  point  in 
Bracton  99  b.  gives  you  the  answer.     Creditor,  qui  pignus  accepit,  re 
obligatur,  et  ad  Mam  restituendam  tenetur;  et  cum  hujusmodi  res  in  pignus 
data  sit  utriusque  gratia,  scilicet  debitoris,  quo  magis  ei  pecunia  crederetur, 
et  creditoris  quo  magis  ei  in  tito  sit  creditum,  sufficit  ad  ejus  rei  custodiam 
diligentiam  exactam  ad  Inhere,  quam  si  praestiterit,  et  rem  casu  amiserit, 
securus  esse  possit,  nee  impedietur  creditum  petere.     In  effect,  if  a  creditor 
takes  a  pawn,  he  is  bound  to  restore  it  upon  the  payment  of  the  debt ; 
but  yet  it  is  sufficient,  if  the  pawnee  use  true  diligence,  and  he  will  be 
indemnified  in  so  doing,  and  notwithstanding  the  loss,  yet  he  shall 
resort  to  the  pawnor  for  his  debt.     Agreeable  to  this  is  29  Ass.  28.  and 
Southcote's  case  is.     But  indeed  the  reason  given  in  Southcote's  case 
is,  because   the  pawnee  has   a  special   property  in   the  pawn.      But 
that  is  not  the  reason  of  the  case ;  and  there  is  another  reason  given  for 
it  in  the  book  of  Assize,  which  is  indeed  the  true  reason  of  all  these 
cases,  that  the  law  requires  nothing  extraordinary  of  the  pawnee,  but 
only  that  he  shall  use  an  ordinary  care  for  restoring  the  goods.     But 
indeed  if  the  money  for  which  the  goods  were  pawned,  be  tendered  to 
the  pawnee  before  they  are  lost,  then  the  pawnee  shall  be  answerable 
for  them  ;  because  the  pawnee,  by  detaining  them  after  the  tender  of  the 
money,  is  a  wrong  doer,  and  it  is  a  wrongful  detainer  of  the  goods,  and 
the  special  property  of  the  pawnee  is  determined.     And  a  man  that 
keeps  goods  by  wrong,  must  be  answerable  for  them  at  all  events,  for 
the  detaining  of  them  by  him,  is  the  reason  of  the  loss.     Upon  the  same 
difference  as  the  law  is  in  relation  to  pawns,  it  will  be  found  to  stand  in 
relation  to  goods  found. 

As  to  the  fifth  sort  of  bailment,  viz.  a  delivery  to  carry  or  otherwise 
manage,  for  a  reward  to  be  paid  to  the  bailee,  those  cases  are  of  two  sorts  ; 
either  a  delivery  to  one  that  exercises  a  public  employment,  or  a  delivery 
to  a  private  person.  First  if  it  be  to  a  person  of  the  first  sort,  and  he 
is  to  have  a  reward,  he  is  bound  to  answer  for  the  goods  at  all  events. 
And  this  is  the  case  of  the  common  carrier,  common  hoyman,  master 
of  a  ship,  &c.  which  case  of  a  master  of  a  ship  was  first  adjudged  26  Car. 
2.  in  the  case  of  Mors  v.  Slew.  Raym.  220.  1  Vent.  190.  238.  The  law 
charges  this  person  thus  intrusted  to  carry  goods,  against  all  events 


10  ORDINARY   BAILMENTS. 

but  acts  of  God,  and  of  the  enemies  of  the  king.  For  though  the  force 
be  never  so  great,  as  if  an  irresistible  multitude  of  people  should  rob 
him,  nevertheless  he  is  chargeable.  And  this  is  a  politick  establish- 
ment, contrived  by  the  policy  of  the  law,  for  the  safety  of  all  persons, 
the  necessity  of  whose  affairs  oblige  them  to  trust  these  sorts  of  persons, 
that  they  may  be  safe  in  their  ways  of  dealing ;  for  else  these  carriers 
might  have  an  opportunity  of  undoing  all  persons  that  had  any  deal- 
ings with  them,  by  combining  with  thieves,  &e.  and  yet  doing  it  in  such 
a  clandestine  manner,  as  would  not  be  possible  to  be  discovered.  And 
this  is  the  reason  the  law  is  founded  upon  in  that  point.  The  second 
sort  are  bailies,  factors  and  such  like.  And  though  a  bailie  is  to  have  a 
reward  for  his  management,  yet  he  is  only  to  do  the  best  he  can.  And 
if  he  be  robbed,  &c.  it  is  a  good  account.  And  the  reason  of  his  being 
a  servant  is  not  the  thing ;  for  he  is  at  a  distance  from  his  master,  and 
acts  at  discretion,  receiving  rents  and  selling  corn,  &c.  And  yet  if  he 
receives  his  master's  money,  and  keeps  it  locked  up  with  reasonable 
care,  he  shall  not  be  answerable  for  it,  though  it  be  stolen.  But  yet 
this  servant  is  not  a  domestic  servant,  nor  under  his  master's  immediate 
care.  But  the  true  reason  of  the  case  is,  it  would  be  unreasonable  to 
charge  him  with  a  trust,  farther  than  the  nature  of  the  thing  puts  it 
in  his  power  to  perforin  it.  But  it  is  allowed  in  the  other  cases,  by  rea- 
son of  the  necessity  of  the  thing.     The  same  law  of  a  factor. 

As  to  the  sixth  sort  of  bailment,  it  is  to  be  taken,  that  the  bailee  is 
to  have  no  reward  for  his  pains,  but  yet  that  by  his  ill  management  the 
goods  are  spoiled.  Secondly,  it  is  to  be  understood,  that  there  was  a 
neglect  in  the  management.  But  thirdly,  it'  it  had  appeared  that  the 
mischief  happened  by  any  person  that  met  the  carl  in  the  way,  the  bailee 
had  not  been  chargeable.  As  if  a  drunken  man  had  come  by  in  the 
streets,  and  had  pierced  the  cask  of  brandy  ;  in  this  case  the  defendant 
had  not  been  answerable  for  it,  because  he  was  to  have  nothing  for  his 
pains.  Then  the  bailee  having  undertaken  to  manage  the  goods,  and 
having  managed  them  ill,  and  so  by  his  neglect  a  damage  has  happened 
to  the  bailor,  which  is  the  case  in  question,  what  will  you  call  this  ? 
In  Bracton,  lib.  3.  100,  it  is  called  mandatum.  It  is  an  obligation,  which 
arises  ex  mandate.  It  is  what  we  call  in  English  an  acting  by  commis- 
sion. And  if  a  man  acts  by  commission  for  another  gratis,  and  in  the 
executing  his  commission  behaves  himself  negligently,  he  is  answerable. 
Vinnius  in  his  commentaries  upon  Justinian,  lib.  3.  tit.  27.  684.  defines 
mandatum  to  be  contractus  quo  aliquid  gratuito  gerendum  committitur 
ct  accipitur.  This  undertaking  obliges  the  undertaker  to  a  diligent 
management.  Bracton  ubi  supra  says,  contrabitur  etiam  obligatio  non 
solum  scripto  ct  verbis,  sed  ct  consensu,  sicut  in  contractibus  bonac  fidei; 
ut  in  emptionibus,  venditionibw,  location  il> us,  conductionibus,  societati- 
bus,  et  mandatis.  I  don't  find  this  word  in  any  other  author  of  our  law, 
besides  in  this  place  in  Bracton,  which  is  a  full  authority,  if  it  be  not 
thought  too  old.     But  it  is  supported  by  good  reason  and  authority. 


RELATIONS    OF    BAILOR    AND    BAILEE.  11 

The  reasons  are,  first,  because  in  the  case,  a  neglect  is  a  deceit  to  the 
bailor.  For  when  he  intrusts  the  bailee  upon  his  undertaking  to  be 
careful,  he  has  put  a  fraud  upon  the  plaintiff  by  being  negligent,  his 
pretence  of  care  being  the  persuasion  that  induced  the  plaintiff  to  trust 
him.  And  a  breach  of  a  trust  undertaken  voluntarily  will  be  a  good 
ground  for  an  action,  1  Roll.  Abr.  10.  2  Hen.  7.  11.  a  strong  case  to  this 
matter.  There  the  case  was  an  action  against  a  man,  who  had  under- 
taken to  keep  an  hundred  sheep,  for  letting  them  be  drowned  by  his 
default.  And  there  the  reason  of  the  judgment  is  given,  because  when 
the  party  has  taken  upon  him  to  keep  the  sheep,  and  after  suffers  them 
to  perish  in  his  default ;  in  as  much  as  he  has  taken  and  executed  his 
bargain,  and  has  them  in  his  custody,  if  after  he  does  not  look  to  them, 
an  action  lies.  For  here  is  his  own  act,  viz.  his  agreement  and  promise, 
and  that  after  broke  of  his  side,  that  shall  give  a  sufficient  cause  of 
action. 

But  secondly  it  is  objected,  that  there  is  no  consideration  to  ground 
this  promise  upon,  and  therefore  the  undertaking  is  but  nudum  pactum. 
But  to  this  I  answer,  that  the  owner's  trusting  him  with  the  goods  is  a 
sufficient  consideration  to  oblige  him  to  a  careful  management.  Indeed 
if  the  agreement  had  been  executory,  to  carry  these  brandies  from  the 
one  place  to  the  other  such  a  day,  the  defendant  had  not  been  bound 
to  carry  them.  But  this  is  a  different  case,  for  assumpsit  does  not  only 
signify  a  future  agreement,  but  in  such  a  case  as  this,  it  signifies  an 
actual  entry  upon  the  thing,  and  taking  the  trust  upon  himself.  And 
if  a  man  will  do  that,  and  miscarries  in  the  performance  of  his  trust, 
an  action  will  lie  against  him  for  that,  though  nobody  could  have 
compelled  him  to  do  the  thing.  The  19  Hen.  6.  49.  and  the  other  cases 
cited  by  my  brothers,  shew  that  this  is  the  difference.  But  in  the  11 
Hen.  4.  33.  this  difference  is  clearly  put,  and  that  is  the  only  case  con- 
cerning this  matter,  which  has  not  been  cited  by  my  brothers.  There 
the  action  was  brought  against  a  carpenter,  for  that  he  had  undertaken 
to  build  the  plaintiff  a  house  within  such  a  time,  and  had  not  done  it, 
and  it  was  adjudged  the  action  would  not  lie.  But  there  the  question 
was  put  to  the  court,  what  if  he  had  built  the  house  unskilfully,  and  it 
is  agreed  in  that  case  an  action  would  have  lain.  There  has  been  a 
question  made,  if  I  deliver  goods  to  A.  and  in  consideration  thereof  he 
promise  to  redeliver  them,  if  an  action  will  lie  for  not  redelivering  them  ; 
and  in  Yelv.  4.  judgment  was  given  that  the  action  would  lie.  But 
that  judgment  was  afterwards  reversed,  and  according  to  that  reversal, 
there  was  judgment  afterwards  entered  for  the  defendant  in  the  like 
case.  Yelv.  128.  But  those  cases  were  grumbled  at,  and  the  reversal 
of  that  judgment  in  Yelv.  4.  was  said  by  the  judges  to  be  a  bad  resolu- 
tion, and  the  contrary  to  that  reversal  was  afterwards  most  solemnly 
adjudged  in  2  Cro.  667.  Tr.  21  Jac.  1.  in  the  king's  bench,  and  that 
judgment  affirmed  upon  a  writ  of  error.  And  yet  there  is  no  benefit 
to  the  defendant,  nor  no  consideration  in  that  case,  but  the  having  the 


12  ORDINARY    BAILMENTS. 

money  in  his  possession,  and  being  trusted  with  it,  and  yet  that  was  held 
to  be  a  good  consideration.  And  so  a  bare  being  trusted  with  another 
man's  goods,  must  be  taken  to  be  a  sufficient  consideration,  if  the 
bailee  once  enter  upon  the  trust,  and  take  the  goods  into  his  possession. 
The  declaration  in  the  case  of  Mors  v.  Slew  was  drawn  by  the  greatest 
drawer  in  England  in  that  time,  and  in  that  declaration,  as  it  was 
always  in  all  such  cases,  it  was  thought  most  prudent  to  put  in,  that  a 
reward  was  to  be  paid  for  the  carriage.  And  so  it  has  been  usual  to 
put  it  in  the  writ,  where  the  suit  is  by  original.  I  have  said  thus  much 
in  this  case,  because  it  is  of  great  consequence,  that  the  law  should  be 
settled  in  this  point,  but  I  don't  know  whether  I  may  have  settled  it, 
or  may  not  rather  have  unsettled  it.  But  however  that  happen,  I  have 
stirred  these  points,  which  wiser  heads  in  time  may  settle.  And  judg- 
ment was  given  for  the  plaintiff. 


BREWSTER  v.   WARNER. 
136  Mass.  57  ;  49  Am.  R.  5.     1883. 

Tort.  Trial  in  the  Superior  ( )ourt,  without  a  jury,  before  Blodgett, 
J.,  who  allowed  a  bill  of  exceptions,  in  substance  as  follows  :  — 

The  plaintiff,  on  September  L5,  1881,  hired  a  horse  and  carriage  from 
the  livery  stable  of  one  Foster  in  Boston  to  drive  to  Beacon  Park  and 
return.  Just  before  reaching  the  Park  gate,  a  servant  of  the  defendants, 
who  was  driving  a  pair  of  horses  hitched  to  a  hack,  carelessly,  as  it  was 
alleged,  drove  against  the  carriage  in  which  the  plaintiff  was  driving, 
and  injured  it.  This  action  was  brought  to  recover  the  damages  so 
sustained. 

Foster  was  the  owner  of  the  carriage  injured.  The  plaintiff  told 
Foster  to  send  the  carriage  to  a  repair  shop  and  have  it  repaired,  and  he 
would  pay  the  bill.  The  carriage  was  repaired,  and  the  bill  for  repairs 
was  made  to  the  plaintiff,  and  presented  to  him  for  payment ;  but  he 
had  not  paid  it  at  the  time  of  trial. 

This  was  all  the  evidence  as  to  the  ownership,  use,  and  repairs  of  the 
carriage.  The  defendants  requested  the  judge  to  rule  that,  upon  this 
evidence,  the  plaintiff  could  not  recover,  regardless  of  the  question  of 
negligence.  But  the  judge  ruled  otherwise,  and  found  for  the  plaintiff  ; 
and  the  defendants  alleged  exceptions. 

Holmes,  J.  The  modern  cases  follow  the  ancient  rule,  that  a  bailee 
can  recover  against  a  stranger  for  taking  chattels  from  his  possession. 
Shaw  v.  Kaler,  106  Mass.  448;  Swire  v.  Leach,  18  C.  B.  (N.  S.)  479. 
See  Year  Book,  48  Edw.  Ill,  20,  pi.  8;  20  H.  VII,  5,  pi.  15;  2  Roll. 
Abr.  569,  Trespass,  P.  pi.  5 ;  Nicolls  v.  Bastard,  2  Cr.,  M.  &  R.  659,  660. 
And  as  the  bailee  is  no  longer  answerable  to  his  bailor  for  the  loss  of 


RELATIONS    OF    BAILOR   AND    BAILEE.  13 

goods  without  his  fault,  his  right  to  recover  must  stand  upon  his  pos- 
session, in  these  days  at  least,  if  it  has  not  always  done  so.  But  pos- 
session is  as  muoh  protected  against  one  form  of  trespass  as  another, 
and  will  support  an  action  for  damage  to  property,  as  well  as  one  for 
wrongfully  taking  or  destroying  it.  No  distinction  has  been  recognised 
by  the  decisions.     Rooth  v.  Wilson,  1  B.  &  Aid.  59;    Croft  v.  Alison, 

4  B.  &  Aid.  590;  Johnson  v.  Holyoke,  105  Mass.  80.  The  ruling 
requested  was  obviously  wrong,  as  it  denied  all  right  of  action  to  the 
plaintiff,  and  was  not  confined  to  the  quantum  of  damages. 

Even  if  the  question  before  us  were  whether  the  plaintiff  could 
recover  full  damages,  his  right  to  do  so  could  not  be  denied  as  matter 
of  law.  A  distinction  might  have  been  attempted,  to  be  sure,  under 
the  early  common  law.  For,  although  the  bailee's  right  was  undoubted 
to  recover  full  damages  for  goods  wrongfully  taken  from  him,  this  was 
always  accounted  for  by  his  equally  undoubted  responsibility  for  their 
loss  to  his  bailor,  and  there  is  no  satisfactory  evidence  of  any  such  strict 
responsibility  for  damage  to  goods  which  the  bailee  was  able  to  return 
in  specie. 

But  if  this  reasoning  would  ever  have  been  correct,  which  is  not 
clear,  it  can  no  longer  apply  when  the  responsibility  of  bailees  is  the 
same  for  damage  to  goods  as  for  their  loss,  and  when  the  ground  of  their 
recovery  for  either  is  simply  their  possession.  Any  principle  that  per- 
mits a  bailee  to  recover  full  damages  in  the  one  case,  must  give  him  the 
same  right  in  the  other.  But  full  damages  have  been  allowed  for  tak- 
ing goods,  in  many  modern  cases,  although  the  former  responsibility 
over  for  the  goods  has  disappeared,  and  has  been  converted  by  misinter- 
pretation into  the  now  established  responsibility  for  the  proceeds  of  the 
action  beyond  the  amount  of  the  bailee's  interest.     Lyle  v.  Barker, 

5  Binn.  457;  7  Cowen,  681,  n.  (a);  White  v.  Webb,  15  Conn.  302; 
Ullman  v.  Barnard,  7  Gray,  554 ;  Adams  v.  O'Connor,  100  Mass.  515, 
518  ;  Swire  v.  Leach,  18  C.  B.  (N.  S.)  492.  The  latter  doctrine  has  been 
extended  to  insurance  by  bailees.  De  Forest  v.  Fulton  Ins.  Co.,  1  Hall, 
84,  91,  110,  116,  132;  Crompton,  J.,  in  Waters  v.  Monarch  Ins.  Co., 
25  L.  J.  (N.  S.)  Q.  B.  102,  106. 

If  the  bailee's  responsibility  over  in  this  modern  form  is  not  sufficient 
to  make  it  safe  in  all  cases  to  recognise  his  right  to  recover  full  damages, 
even  where  it  was  formerly  undoubted,  at  least  it  applies  as  well  to  re- 
coveries for  harm  done  to  property  as  it  does  to  those  for  taking. 
Rindge  v.  Coleraine,  11  Gray,  157,  162.  And  if  full  damages  are  ever 
to  be  allowed,  as  it  is  settled  that  they  may  be,  they  should  be  recovered 
in  the  present  case,  where  the  plaintiff  appears  to  have  made  himself 
debtor  for  the  necessary  repairs  with  the  bailor's  assent.  Johnson  v. 
Holyoke,  ubi  supra.  It  is  not  necessary  to  consider  what  steps  might 
be  taken  if  the  bailor  should  seek  to  intervene  to  protect  his  interest. 

Exceptions  overruled. 


14  ORDINARY    BAILMENTS. 

THE  WINKFIELD. 

Court  of  Appeal.     [1902]  Prob.  Div.  42 ;   85  L.  T.  R.  668.     1901. 

Collins,  M.  R.  This  is  an  appeal  from  the  order  of  Sir  Francis 
Jeune  dismissing  a  motion  made  on  behalf  of  the  Postmaster-General 
in  the  case  of  The  Winkfield. 

The  question  arises  out  of  collision  which  occurred  on  April  5,  1900, 
between  the  steamship  "Mexican"  and  the  steamship  "Winkfield," 
and  which  resulted  in  the  loss  of  the  former  with  a  portion  of  the  mails 
which  she  was  carrying  at  the  time.  » 

The  owners  of  the  "Winkfield"  under  a  decree  limiting  liability  to 
32,514/.  17s.  lOd.  paid  that  amount  into  court,  and  the  claim  in  ques- 
tion was  one  by  the  Postmaster-General  on  behalf  of  himself  and  the 
Postmasters-General  of  Cape  Colony  and  Natal  to  recover  out  of  that 
sum  the  value  of  letters,  parcels,  &c,  in  his  custody  as  bailee  and  lost 
on  board  the  "Mexican." 

The  case  was  dealt  with  by  all  parties  in  the  court  below  as  a  claim  by 
a  bailee  who  was  under  no  liability  to  his  bailor  for  the  loss  in  question, 
as  to  which  it  was  admitted  that  the  authority  of  Claridge  v.  South 
Staffordshire  Tramway  Co.,  [1892]  1  Q.  B.  422,  was  conclusive,  and 
the  President  accordingly,  without  argument  and  in  deference  to  that 
authority,  dismissed  the  claim.     The  Postmaster-General  now  appeals. 

The  question  for  decision,  therefore,  is  whether  Claridge's  Case  was 
well  decided.  I  emphasise  this  because  it  disposes  of  a  point  which 
was  faintly  suggested  by  the  respondents,  and  which,  if  good,  would 
distinguish  Claridge's  Case,  namely,  that  the  applicant  was  not  himself 
in  actual  occupation  of  the  things  bailed  at  the  time  of  the  loss.  This 
point  was  not  taken  below,  and  having  regard  to  the  course  followed  by 
all  parties  on  the  hearing  of  the  motion,  I  think  it  is  not  open  to  the 
respondents  to  make  it  now,  and  I  therefore  deal  with  the  case  upon 
the  footing  upon  which  it  was  dealt  with  on  the  motion,  namely,  that 
it  is  covered  by  Claridge's  Case.  I  assume,  therefore,  that  the  subject- 
matter  of  the  bailment  was  in  the  custody  of  the  Postmaster-General 
as  bailee  at  the  time  of  the  accident.  For  the  reasons  which  I  am 
about  to  state  I  am  of  opinion  that  Claridge's  Case  was  wrongly  decided 
and  that  the  law  is  that  in  an  action  against  a  stranger  for  loss  of  goods 
caused  by  his  negligence,  the  bailee  in  possession  can  recover  the  value 
of  the  goods,  although  he  would  have  had  a  good  answer  to  an  action 
by  the  bailor  for  damages  for  the  loss  of  the  thing  bailed. 

It  seems  to  me  that  the  position,  that  possession  is  good  against  a 
wrongdoer  and  that  the  latter  cannot  set  up  the  jus  tertii  unless  he 
claims  under  it,  is  well  established  in  our  law,  and  really  concludes  this 
case  against  the  respondents.  As  I  shall  shew  presently,  a  long  series 
of  authorities  establishes  this  in  actions  of  trover  and  trespass  at  the 


RELATIONS    OF    BAILOR   AND    BAILEE.  15 

suit  of  a  possessor.  And  the  principle  being  the  same,  it  follows  that 
he  can  equally  recover  the  whole  value  of  the  goods  in  an  action  on  the 
case  for  their  loss  through  the  tortious  conduct  of  the  defendant.  I 
think  it  involves  this  also,  that  the  wrongdoer  who  is  not  defending 
under  the  title  of  the  bailor  is  quite  unconcerned  with  what  the  rights 
are  between  the  bailor  and  bailee,  and  must  treat  the  possessor  as  the 
owner  of  the  goods  for  all  purposes  quite  irrespective  of  the  rights  and 
obligations  as  between  him  and  the  bailor. 

I  think  this  position  is  well  established  in  our  law,  though  it  may  be 
that  reasons  for  its  existence  have  been  given  in  some  of  the  cases  which 
are  not  quite  satisfactory.  I  think  also  that  the  obligation  of  the  bailee 
to  the  bailor  to  account  for  what  he  has  received  in  respect  of  the  de- 
struction or  conversion  of  the  thing  bailed  has  been  admitted  so  often 
in  decided  cases  that  it  cannot  now  be  questioned ;  and,  further,  I 
think  it  can  be  shewn  that  the  right  of  the  bailee  to  recover  cannot  be 
rested  on  the  ground  suggested  in  some  of  the  cases,  namely,  that  he 
was  liable  over  to  the  bailor  for  the  loss  of  the  goods  converted  or 
destroyed.  It  cannot  be  denied  that  since  the  case  of  Armory  v.  Dela- 
mirie,  1  Stra.  504  [20],  not  to  mention  earlier  cases  from  the  Year 
Books  onward,  a  mere  finder  may  recover  against  a  wrongdoer  the  full 
value  of  the  thing  converted.  That  decision  involves  the  principle 
that  as  betwreen  possessor  and  wrongdoer  the  presumption  of  law  is, 
in  the  words  of  Lord  Campbell  in  Jeffries  v.  Great  Western  Ry.  Co., 
5  E.  &  B.,  802,  at  p.  806,  "that  the  person  who  has  possession  has  the 
property."  In  the  same  case  he  says,  5  E.  &  B.,  802,  at  p.  805  :  "  I  am 
of  opinion  that  the  law  is  that  a  person  possessed  of  goods  as  his  prop- 
erty has  a  good  title  as  against  every  stranger,  and  that  one  who  takes 
them  from  him,  having  no  title  in  himself,  is  a  wrongdoer,  and  cannot 
defend  himself  by  shewing  that  there  was  title  in  some  third  person,  for 
against  a  wrongdoer  possession  is  title.  The  law  is  so  stated  by  the  very 
learned  annotator  in  his  note  to  Wilbraham  v.  Snow."  2  Wms.  Saund. 
47  f.  Therefore  it  is  not  open  to  the  defendant,  being  a  wrongdoer, 
to  inquire  into  the  nature  or  limitation  of  the  possessor's  right,  and 
unless  it  is  competent  for  him  to  do  so  the  question  of  his  relation  to, 
or  liability  towards,  the  true  owner  cannot  come  into  the  discussion  at 
all ;  and,  therefore,  as  between  those  two  parties  full  damages  have  to 
be  paid  without  any  further  inquiry.  The  extent  of  the  liability  of  the 
finder  to  the  true  owner  not  being  relevant  to  the  discussion  between 
him  and  the  wrongdoer,  the  facts  which  would  ascertain  it  would  not 
have  been  admissible  in  evidence,  and  therefore  the  right  of  the  finder 
to  recover  full  damages  cannot  be  made  to  depend  upon  the  extent  of 
his  liability  over  to  the  true  owner.  To  hold  otherwise  would,  it  seems 
to  me,  be  in  effect  to  permit  a  wrongdoer  to  set  up  a  jus  tertii  under 
which  he  cannot  claim.  But,  if  this  be  the  fact  in  the  case  of  a  finder, 
why  should  it  not  be  equally  the  fact  in  the  case  of  a  bailee  ?  Why,  as 
against  a  wrongdoer,  should  the  nature  of  the  plaintiff's  interest  in  the 


16  ORDINARY    BAILMENTS. 

thing  converted  be  any  more  relevant  to  the  inquiry,  and  therefore 
admissible  in  evidence,  than  in  the  case  of  a  finder  ?  It  seems  to  me 
that  neither  in  one  case  nor  the  other  ought  it  to  be  competent  for  the 
defendant  to  go  into  evidence  on  that  matter. 

I  think  this  view  is  borne  out  by  authority ;  for  instance,  in  Burton 
v.  Hughes,  2  Bing.  173 ;  27  R.  R.  578,  the  plaintiff,  who  had  borrowed 
furniture,  and  was  therefore  bailee,  was  held  to  be  entitled  to  sue  in 
trover  wrongdoers  who  had  seized  it  without  giving  in  evidence  the 
written  agreement  under  which  he  held  it.  The  point  made  for  the 
defendant  was  that  "  the  qualified  interest  having  been  obtained  under 
a  written  agreement  could  not  be  proved  except  by  the  production  of 
that  agreement  duly  stamped."  The  argument  on  the  other  side  was 
"that  the  existence  of  some  kind  of  interest  having  been  established 
the  precise  nature  of  it  or  the  terms  upon  which  it  was  acquired  were 
immaterial  to  the  support  of  this  action."  Best,  C.  J.,  in  delivering 
judgment  says  :  "  If  this  had  been  a  case  between  Kitchen  and  the  plain- 
tiff the  agreement  ought  to  have  been  produced,  because  that  alone 
could  decide  the  respective  rights  of  those  two  parties ;  but  it  appears 
that  Kitchen  was  to  supply  the  plaintiff  with  furniture,  and  the  question 
is  whether,  after  he  had  obtained  it,  he  had  a  sufficient  interest  to 
maintain  this  action.  The  case  which  has  been  referred  to  —  Sutton 
v.  Buck,  2  Taunt.  302  ;  11  R.  R.  585  —  confirms  what  I  had  esteemed  to 
be  the  law  upon  the  subject,  namely,  that  a  simple  bailee  has  a  suffi- 
cient interest  to  sue  in  trover."  By  holding,  therefore,  that  the  agree- 
ment defining  the  conditions  of  the  plaintiffs'  interest  was  immaterial 
the  Court  in  effect  decided  that  the  right  of  the  bailee,  in  possession, 
to  sue  could  not  depend  upon  the  fact  or  extent  of  his  liability  over  to 
the  bailor,  since  the  plaintiff  was  allowed  to  keep  his  verdict  in  trover, 
the  agreement  defining  his  interest  and  liability  being  excluded  from 
the  discussion.  In  Sutton  v.  Buck,  on  the  authority  of  which  this  case 
was  decided,  it  was  held  that  possession  under  a  general  bailment  is 
sufficient  title  for  the  plaintiff  in  trover.  The  plaintiff  had  taken  pos- 
session of  a  stranded  ship  under  a  transfer  void  for  non-compliance 
with  the  Register  Acts,  and  he  sued  the  defendant  in  trover  for  por- 
tions of  the  timber,  wood  and  materials  of  which  the  defendant  had 
wrongfully  taken  possession.  Sir  James  Mansfield,  C.  J.,  had  non- 
suited the  plaintiff,  on  the  ground  that  the  transfer  was  defective  with- 
out registration.  On  motion  the  non-suit  was  set  aside,  Sir  James 
Mansfield  being  a  member  of  the  Court,  and  a  new  trial  ordered  on  the 
ground  that  the  plaintiff  had  sufficient  possession  to  maintain  the  action 
against  the  wrongdoer.  It  is  true  that  Chambre,  J.,  reserved  his  opinion 
as  to  the  measure  of  damages,  but  on  the  new  trial  the  plaintiff  recovered 
a  verdict  apparently  for  the  full  value  of  the  things  converted,  and  on 
further  motion  for  a  new  trial  the  only  point  argued  was  that  the  defend- 
ant was  justified  as  lord  of  the  manor  in  doing  what  he  did  —  a  con- 
tention which  was  rejected  by  the  Court. 


RELATIONS    OF    BAILOR   AND   BAILEE.  17 

In  Swire  v.  Leach,  18  C.  B.  (N.  S.)  479,  a  pawnbroker,  whose  landlord 
had  wrongfully  taken  in  distress  pledges  in  the  custody  of  the  pawn- 
broker, was  held  entitled  to  recover  in  an  action  against  the  landlord 
for  conversion  the  full  value  of  the  pledges.  This  case  was  decided 
by  a  strong  Court,  consisting  of  Erie,  C.  J.,  Williams  and  Keating,  JJ., 
and  has  never,  so  far  as  I  know,  been  questioned  since.  The  duty  of 
the  bailee  to  account  to  the  bailor  was  recognised  as  well  established. 
See  also  Turner  v.  Hardcastle,  11  C.  B.  (N.  S.)  683,  a  considered  judg- 
ment of  the  Court  of  Common  Pleas,  which  included  Willes,  J.,  who 
had  not  been  a  party  to  Swire  v.  Leach,  and  where  the  bailee's  right  to 
recover  full  damages  and  his  obligation  to  account  to  the  bailor  is  again 
affirmed. 

The  ground  of  the  decision  in  Claridge's  Case  [1892]  1  Q.  B.  422,  was 
that  the  plaintiff  in  that  case,  being  under  no  liability  to  his  bailor, 
could  recover  no  damages,  and  though  for  the  reasons  I  have  already 
given  I  think  this  position  is  untenable,  it  is  necessary  to  follow  it  out  a 
little  further.  There  is  no  doubt  that  the  reason  given  in  Heydon  and 
Smith's  Case,  13  Rep.  69  —  and  itself  draws  from  the  Year  Books  —  has 
been  repeated  in  many  subsequent  cases.  The  words  are  these : 
"Clearly,  the  bailee,  or  he  who  hath  a  special  property,  shall  have  a 
general  action  of  trespass  against  a  stranger,  and  shall  recover  all  in 
damages  because  that  he  is  chargeable  over." 

It  is  now  well  established  that  the  bailee  is  accountable,  as  stated  in 
the  passage  cited  and  repeated  in  many  subsequent  cases.  But  whether 
the  obligation  to  account  was  a  condition  of  his  right  to  sue,  or  only 
an  incident  arising  "upon  his  recovery  of  damages,  is  a  very  different 
question,  though  it  was  easy  to  confound  one  view  with  the  other. 

Holmes,  C.  J.,  in  his  admirable  lectures  on  the  Common  Law,  in  the 
chapter  devoted  to  bailments,  traces  the  origin  of  the  bailee's  right  to 
sue  and  recover  the  whole  value  of  chattels  converted,  and  arrives  at 
the  clear  conclusion  that  the  bailee's  obligation  to  account  arose  from 
the  fact  that  he  was  originally  the  only  person  who  could  sue,  though 
afterwards  by  an  extension,  not  perhaps  quite  logical,  the  right  to  sue 
was  conceded  to  the  bailor  also.  He  says  at  p.  167  :  "  At  first  the  bailee 
was  answerable  to  the  owner  because  he  was  the  only  person  who  could 
sue;  now  it  was  said  he  could  sue  because  he  was  answerable  to  the 
owner."  And  again  at  p.  170:  "The  inverted  explanation  of  Beau- 
manoir  will  be  remembered,  that  the  bailee  could  sue  because  he  was 
answerable  over,  in  place  of  the  original  rule  that  he  was  answerable 
over  so  strictly  because  only  he  could  sue."  This  inversion,  as  he 
points  out,  is  traceable  through  the  Year  Books,  and  has  survived  into 
modern  times,  though,  as  he  shews,  it  has  not  been  acted  upon.  Pol- 
lock and  Maitland's  "History  of  English  Law,"  vol.  2,  p.  170,  puts  the 
position  thus  :  "  Perhaps  we  come  nearest  to  historical  truth  if  we 
say  that  between  the  two  old  rules  there  was  no  logical  priority.  The 
bailee  had  the  action  because  he  was  liable,  and  was  liable  because  he 


18  ORDINARY   BAILMENTS. 

had  the  action."  It  may  be  that  in  early  times  the  obligation  of  the 
bailee  to  the  bailor  was  absolute,  that  is  to  say,  he  was  an  insurer.  But 
long  after  the  decision  of  Coggs  v.  Bernard  (1704),  2  Ld.  Raym.  909  [4], 
which  classified  the  obligations  of  bailees,  the  bailee  has,  nevertheless, 
been  allowed  to  recover  full  damages  against  a  wrongdoer,  where  the 
facts  would  have  afforded  a  complete  answer  for  him  against  his  bailor, 
The  cases  above  cited  are  instances  of  this.  In  each  of  them  the  bailee 
would  have  had  a  good  answer  to  an  action  by  his  bailor  ;  for  in  none  of 
them  was  it  suggested  that  the  act  of  the  wrongdoer  was  traceable  to 
negligence  on  the  part  of  the  bailee.  I  think,  therefore,  that  the  state- 
ment drawn,  as  I  have  said,  from  the  Year  Books  may  be  explained, 
as  Holmes,  C.  J.,  explains  it,  but  whether  that  be  the  true  view  of  it 
or  not,  it  is  clear  that  it  has  not  been  treated  as  law  in  our  Courts. 
Upon  this,  before  the  decision  in  Claridge's  Case,  [1892]  1  Q.  B.  422, 
there  was  a  strong  body  of  opinion  in  text-books,  English  and  American, 
in  favour  of  the  bailee's  unqualified  right  to  sue  the  wrongdoer :  see 
Mayne  on  Damages,  4th  ed.,  p.  381,  and  cases  there  cited;  Sedgwick 
on  Damages,  7th  ed.,  Vol.  1,  p.  61,  n.  (a) ;  Story  on  Bailments,  9th  ed., 
s.  352;  Kent's  Commentaries,  12th  ed.,  vol.  2,  p.  508,  n.  (c) ;  Pollock 
on  Torts,  6th  ed.,  pp.  354,  355;  Addison  on  Torts,  7th  ed.,  p.  523; 
and  as  I  have  already  pointed  out,  Williams,  J.,  the  editor  of  Williams' 
Saunders,  was  a  party  to  the  decision  of  Swire  v.  Leach,  18  C.  B.  (N.  S.) 
479.  (See  also  Mr.  Justice  Wright  in  "  Pollock  and  Wright  on  Pos- 
session," p.  166.)  The  bailee's  right  to  recover  has  been  affirmed  in 
several  American  cases  entirely  without  reference  to  the  extent  of  the 
bailee's  liability  to  the  bailor  for  the  tort,  though  his  obligation  to  account 
is  admitted  —  see  them  referred  to  in  the  passages  cited,  and  in  particu- 
lar see  Ullman  v.  Barnard,  (1856)  73  Mass.  Rep.  554  ;  Parish  v.  Wheeler, 
(1860)  22  New  York  Rep.  494;  White  r.  Webb,  15  Conn.  Rep.  302. 
The  case  of  Rooth  v.  Wilson,  1  B.  &  A.  59,  is  a  clear  authority  that  the 
right  of  the  bailee  in  possession  to  recover  against  a  wrongdoer  is  the 
same  in  an  action  on  the  case  as  in  an  action  of  trover,  if  indeed  author- 
ity were  required  for  what  seems  obvious  in  point  of  principle.  There 
the  gratuitous  bailee  of  a  horse  was  held  entitled  to  recover  the  full 
value  of  the  horse  in  an  action  on  the  case  against  a  defendant  by  whose 
negligence  the  horse  fell  and  was  killed.  The  case  was  decided  by  Lord 
Ellenborough,  C.  J.,  Bayley,  Abbott,  and  Holroyd,  JJ.  The  three 
latter  seem  to  me  to  put  it  wholly  on  the  ground  that  the  plaintiff  was 
in  possession  and  the  defendant  a  wrongdoer.  Abbott,  J.,  says  shortly  : 
"I  think  that  the  same  possession  which  would  enable  the  plaintiff 
to  maintain  trespass  would  enable  him  to  maintain  this  action";  and 
Bayley,  J.,  points  out  that  case  is  a  possessory  action.  But  Lord 
Ellenborough  undoubtedly  rests  his  judgment  on  the  view  that  the 
plaintiff  would  himself  have  been  responsible  in  damages  to  his  bailor 
to  a  commensurate  amount.  This,  no  doubt,  was  his  personal  view, 
but  it  was  not  the  decision  of  the  Court,  and,  as  I  have  pointed  out,  it 


RELATIONS    OF   BAILOR   AND    BAILEE.  19 

has  certainly  not  been  acted  upon  in  subsequent  cases.  Therefore, 
as  I  said  at  the  outset,  and  as  I  think  I  have  now  shewn  by  authority, 
the  root  principle  of  the  whole  discussion  is  that,  as  against  a  wrong- 
doer, possession  is  title.  The  chattel  that  has  been  converted  or  dam- 
aged is  deemed  to  be  the  chattel  of  the  possessor  and  of  no  other,  and 
therefore  its  loss  or  deterioration  is  his  loss,  and  to  him,  if  he  demands 
it,  it  must  be  recouped.  His  obligation  to  account  to  the  bailor  is  really 
not  ad  rem  in  the  discussion.  It  only  comes  in  after  he  has  carried  his 
legal  position  to  its  logical  consequence  against  a  wrongdoer,  and  serves 
to  soothe  a  mind  disconcerted  by  the  notion  that  a  person  who  is  not 
himself  the  complete  owner  should  be  entitled  to  receive  back  the  full 
value  of  the  chattel  converted  or  destroyed.  There  is  no  inconsistency 
between  the  two  positions ;  the  one  is  the  complement  of  the  other. 
As  between  bailee  and  stranger  possession  gives  title  —  that  is,  not  a 
limited  interest,  but  absolute  and  complete  ownership,  and  he  is  entitled 
to  receive  back  a  complete  equivalent  for  the  whole  loss  or  deteriora- 
tion of  the  thing  itself.  As  between  bailor  and  bailee  the  real  interests 
of  each  must  be  inquired  into,  and,  as  the  bailee  has  to  account  for  the 
thing  bailed,  so  he  must  account  for  that  which  has  become  its  equivalent 
and  now  represents  it.  What  he  has  received  above  his  own  interest 
he  has  received  to  the  use  of  his  bailor.  The  wrongdoer,  having  once 
paid  full  damages  to  the  bailee,  has  an  answer  to  any  action  by  the  bailor. 
See  Com.  Dig.  Trespass  B.  4,  citing  Roll.  551,  1,  31,  569,  1,  22,  Story  on 
Bailments,  9th  ed.,  s.  352,  and  the  numerous  authorities  there  cited. 

The  liability  by  the  bailee  to  account  is  also  well  established  —  see 
the  passage  from  Lord  Coke,  and  the  cases  cited  in  the  earlier  part  of 
this  judgment  —  and  therefore  it  seems  to  me  that  there  is  no  such  pre- 
ponderance of  convenience  in  favour  of  limiting  the  right  of  the  bailee 
as  to  make  it  desirable,  much  less  obligatory,  upon  us  to  modify  the 
law  as  it  rested  upon  the  authorities  antecedent  to  Claridge's  Case, 
[1892]  1  Q.  B.  422.  I  am  aware  that  in  two  able  text-books,  Beven's 
Negligence  in  Law  and  Clerk  and  Lindsell  on  Torts,  the  decision  in 
Claridge's  Case  is  approved,  though  it  is  there  pointed  out  that  the 
authorities  bearing  the  other  way  were  not  fully  considered.  The  rea- 
sons, however,  which  they  give  for  their  opinions  seem  to  be  largely 
based  upon  the  supposed  inconvenience  of  the  opposite  view ;  nor  are 
the  arguments  by  which  they  distinguish  the  position  of  bailees  from 
that  of  other  possessors  to  my  mind  satisfactory.  Claridge's  Case  was 
treated  as  open  to  question  by  the  late  Master  of  the  Rolls  in  Meux  v. 
Great  Eastern  Ry.  Co.,  [1895]  2  Q.  B.  387,  and,  with  the  greatest  defer- 
ence to  the  eminent  judges  who  decided  it,  it  seems  to  me  that  it  cannot 
be  supported.  It  seems  to  have  been  argued  before  them  upon  very 
scanty  materials.  Before  us  the  whole  subject  has  been  elaborately  dis- 
cussed, and  all,  or  nearly  all,  the  authorities  brought  before  us  in  his- 
torical sequence. 

Appeal  allowed. 


20  ORDINARY   BAILMENTS. 

b.    Lost  Chattels. 

ARMORY  v.   DELAMIRIE. 

King's  Bench.     Coram  Pratt,  C.  J.     1  Strange,  505.     1722. 

The  plaintiff  being  a  chimney  sweeper's  boy  found  a  jewel  and 
carried  it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know  what 
it  was,  and  delivered  it  into  the  hands  of  the  apprentice,  who  under 
pretence  of  weighing  it,  took  out  the  stones,  and  calling  to  the  master 
to  let  him  know  it  came  to  three  halfpence,  the  master  offered  the  boy 
the  money,  who  refused  to  take  it,  and  insisted  to  have  the  thing  again  ; 
whereupon  the  apprentice  delivered  him  back  the  socket  without  the 
stones.    And  now  in  trover  against  the  master  these  points  were  ruled  :  — 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding 
acquire  an  absolute  property  or  ownership,  yet  he  has  such  a  property 
as  will  enable  him  to  keep  it  against  all  but  the  rightful  owner,  and  con- 
sequently may  maintain  trover. 

2.  That  the  action  will  lay  against  the  master,  who  gives  a  credit  to 
his  apprentice,  and  is  answerable  for  his  neglect. 

3.  As  to  the  value  of  the  jewel  several  of  the  trade  were  examined 
to  prove  what  a  jewel  of  the  finest  water  that  would  fit  the  socket  would 
be  worth ;  and  the  Chief  Justice  directed  the  jury,  that  unless  the 
defendant  did  produce  the  jewel,  and  shew  it  not  to  be  of  the  finest 
water,  they  should  presume  the  strongest  against  him,  and  make  the 
value  of  the  best  jewel  the  measure  of  their  damages  :  which  they  ac- 
cordingly did. 


McAVOY  v.   MEDINA. 

11  Allen  (Mass.),  548;   87  Am.  Dec,  733.     1866. 

At  the  trial  ...  it  appeared  that  the  defendant  was  a  barber, 
and  the  plaintiff,  being  a  customer  in  the  defendant's  shop,  saw  and 
took  up  a  pocket-book  which  was  lying  upon  a  table  there,  and  said  : 
"See  what  I  have  found."  The  defendant  came  to  the  table  and 
asked  where  he  found  it.  The  plaintiff  laid  it  back  in  the  same  place 
and  said,  "I  found  it  right  there."  The  defendant  then  took  it  and 
counted  the  money,  and  the  plaintiff  told  him  to  keep  it,  and  if  the 
owner  should  come  to  give  it  to  him ;  and  otherwise  to  advertise  it ; 
which  the  defendant  promised  to  do.  Subsequently  the  plaintiff  made 
three  demands  for  the  money  and  the  defendant  never  claimed  to  hold 
the  same  until  the  last  demand.  It  was  agreed  that  the  pocket-book 
was  placed  upon  the  table  by  a  transient  customer  of  the  defendant,  and 


RELATIONS   OF    BAILOR   AND    BAILEE.  21 

accidentally  left  there,  and  was  first  seen  and  taken  up  by  the  plaintiff, 
and  that  the  owner  had  not  been  found. 

[Judgment  for  defendant.     Plaintiff  alleged  exceptions.] 

Dewey,  J.  It  seems  to  be  the  settled  law  that  the  finder  of  lost  prop- 
erty has  a  valid  claim  to  the  same  against  all  the  world  except  the  true 
owner,  and  generally  that  the  place  in  which  it  is  found  creates  no 
exception  to  this  rule.  2  Parsons  on  Contr.,  97 ;  Bridges  v.  Hawkes- 
worth,  7  Eng.  Law  &  Eq.  R.  424. 

But  this  property  is  not,  under  the  circumstances,  to  be  treated  as 
lost  property  in  that  sense  in  which  a  finder  has  a  valid  claim  to  hold 
the  same  until  called  for  by  the  true  owner.  This  property  was  volun- 
tarily placed  upon  a  table  in  the  defendant's  shop  by  a  customer  of 
his,  who  accidentally  left  the  same  there  and  has  never  called  for  it. 
The  plaintiff  also  came  there  as  a  customer,  and  first  saw  the  same  and 
took  it  up  from  the  table.  The  plaintiff  did  not  by  this  acquire  the 
right  to  take  the  property  from  the  shop,  but  it  was  rather  the  duty  of 
the  defendant,  when  the  fact  became  thus  known  to  him,  to  use  reason- 
able care  for  the  safe-keeping  of  the  same  until  the  owner  should  call 
for  it.  In  the  case  of  Bridges  v.  Hawkesworth,  the  property,  although 
found  in  a  shop,  was  found  on  the  floor  of  the  same,  and  had  not  been 
placed  there  voluntarily  by  the  owner,  and  the  court  held  that  the 
finder  was  entitled  to  the  possession  of  the  same,  except  as  to  the 
owner.  But  the  present  case  more  resembles  that  of  Lawrence  v.  State, 
1  Humph  (Tenn.)  228  [34  Am.  Dec.  644],  and  is  indeed  very  similar  in 
its  facts.  The  court  there  take  a  distinction  between  the  case  of 
property  thus  placed  by  the  owner  and  neglected  to  be  removed,  and 
property  lost.  It  was  there  held  that  "  to  place  a  pocket-book  upon  a 
table  and  to  forget  to  take  it  away  is  not  to  lose  it,  in  the  sense  in  which 
the  authorities  referred  to  speak  of  lost  property." 

We  accept  this  as  the  better  rule,  and  especially  as  one  better  adapted 
to  secure  the  rights  of  the  true  owner.  In  view  of  the  facts  of  this  case, 
the  plaintiff  acquired  no  original  right  to  the  property,  and  the  defend- 
ant's subsequent  acts  in  receiving  and  holding  the  property  in  the 
manner  he  did  does  not  create  any. 

Exceptions  overruled. 


DURFEE   v.   JONES. 
11  R.  I.  588;   23  Am.  R.  528.     1877. 

Assumpsit,  heard  by  the  court,  jury  trial  being  waived. 

Durfee,  C.  J.  The  facts  in  this  case  are  briefly  these :  In  April, 
1874,  the  plaintiff  bought  an  old  safe,  and  soon  afterward  instructed 
his  agent  to  sell  it  again.     The  agent  offered  to  sell  it  to  the  defendant 


22  ORDINARY   BAILMENTS. 

for  ten  dollars,  but  the  defendant  refused  to  buy  it.  The  agent  then 
left  it  with  the  defendant,  who  was  a  blacksmith,  at  his  shop  for  sale 
for  ten  dollars,  authorising  him  to  keep  his  books  in  it  until  it  was  sold 
or  reclaimed.  The  safe  was  old-fashioned,  of  sheet  iron,  about  three 
feet  square,  having  a  few  pigeon-holes  and  a  place  for  books,  and  back 
of  the  place  for  books  a  large  crack  in  the  lining.  The  defendant,  shortly 
after  the  safe  was  left,  upon  examining  it,  found  secreted  between  the 
sheet-iron  exterior  and  the  wooden  lining  a  roll  of  bills  amounting  to 
$165,  of  the  denomination  of  the  national  bank  bills  which  have  been 
current  for  the  last  ten  or  twelve  years.  Neither  the  plaintiff  nor  the 
defendant  knew  the  money  was  there  before  it  was  found.  The  owner 
of  the  money  is  still  unknown.  The  defendant  informed  the  plaintiff's 
agent  that  he  had  found  it,  and  offered  it  to  him  for  the  plaintiff ;  but 
the  agent  declined  it,  stating  that  it  did  not  belong  to  either  himself  or 
the  plaintiff,  and  advised  the  defendant  to  deposit  it  where  it  would 
draw  interest  until  the  rightful  owner  appeared.  The  plaintiff  was 
then  out  of  the  city.  Upon  his  return,  being  informed  of  the  finding 
he  immediately  called  on  the  defendant  and  asked  for  the  money,  but 
the  defendant  refused  to  give  it  to  him.  He  then,  after  taking  advice, 
demanded  the  return  of  the  safe  and  its  contents,  precisely  as  they 
existed  when  placed  in  the  defendant's  hands.  The  defendant  promptly 
gave  up  the  safe,  but  retained  the  money.  The  plaintiff  brings  this 
action  to  recover  it  or  its  equivalent. 

The  plaintiff  does  not  claim  that  he  acquired,  by  purchasing  the 
safe,  any  right  to  the  money  in  the  safe  as  against  the  owner ;  for  he 
bought  the  safe  alone,  not  the  safe  and  its  contents.  See  Merry  v. 
Green,  7  M.  &  W.  623.  But  he  claims  that  as  between  himself  and 
the  defendant  his  is  the  better  right.  The  defendant,  however,  has  the 
possession,  and  therefore,  it  is  for  the  plaintiff,  in  order  to  succeed  in 
his  action,  to  prove  his  better  right. 

The  plaintiff  claims  that  he  is  entitled  to  have  the  money  by  the 
right  of  prior  possession.  But  the  plaintiff  never  had  any  possession 
of  the  money,  except  unwittingly,  by  having  possession  of  the  safe 
which  contained  it.  Such  possession,  if  possession  it  can  be  called, 
does  not  of  itself  confer  a  right.  The  case  at  bar  is  in  this  view  like 
Bridges  v.  Hawkesworth,  15  Jur.  1079;  21  L.  J.  Q.  II.  75,  A.  1).  1851  ; 
7  Eng.  L.  &.  Eq.  424.  In  that  case,  the  plaintiff,  while  in  the  defend- 
ant's shop  on  business,  picked  up  from  the  floor  a  parcel  containing 
bank  notes.  He  gave  them  to  the  defendant  for  the  owner  if  he  could 
be  found.  The  owner  could  not  be  found,  and  it  was  held  that  the  plain- 
tiff as  finder  was  entitled  to  them,  as  against  the  defendant  as  owner 
of  the  shop  in  which  they  were  found.  "The  notes,"  said  the  court, 
"  never  were  in  the  custody  of  the  defendant  nor  within  the  protection 
of  his  house  before  they  were  found,  as  they  would  have  been  if  they 
had  been  intentionally  deposited  there."  The  same  in  effect  may  be 
said  of  the  notes  in  the  case  at  bar,  for  though  they  were  originally 


RELATIONS-  OF    BAILOR   AND    BAILEE.  23 

deposited  in  the  safe  by  design,  they  were  not  so  deposited  in  the  safe 
after  it  became  the  plaintiff's  safe,  so  as  to  be  in  the  protection  of  the 
safe  as  his  safe,  or  so  as  to  affect  him  with  any  responsibility  for  them. 
The  case  at  bar  is  also  in  this  respect  like  Tatum  v.  Sharpless,  6  Phila. 
18.  There  it  was  held,  that  a  conductor  who  had  found  money  which 
had  been  lost  in  a  railroad  car  was  entitled  to  it  as  against  the  railroad 
company. 

The  plaintiff  also  claims  that  the  money  was  not  lost  but  designedly 
left  where  it  was  found,  and  that,  therefore,  as  owner  of  the  safe,  he  is 
entitled  to  its  custody.  He  refers  to  cases  in  which  it  has  been  held 
that  money  or  other  property  voluntarily  laid  down  and  forgotten  is 
not  in  legal  contemplation  lost,  and  that  of  such  money  or  property  the 
owner  of  the  shop  or  place  where  it  is  left  is  the  proper  custodian  rather 
than  the  person  who  happens  to  discover  it  first.  State  v.  McCann, 
19  Mo.  249;  Lawrence  v.  The  State,  1  Humph.  228;  McAvoyu. 
Medina,  11  Allen,  549  [20].  It  may  be  questioned  whether  this  distinc- 
tion has  not  been  pushed  to  an  extreme.  See  Kincaid  v.  Eaton,  98  Mass. 
139.  But,  however  that  may  be,  we  think  the  money  here,  though 
designedly  left  in  the  safe,  was  probably  not  designedly  put  in  the 
crevice  or  interspace  where  it  was  found,  but  that,  being  left  in  the 
safe,  it  probably  slipped  or  was  accidentally  shoved  into  the  place  where 
it  was  found  without  the  knowledge  of  the  owner,  and  so  was  lost,  in 
the  stricter  sense  of  the  word.  The  money  was  not  simply  deposited 
and  forgotten,  but  deposited  and  lost  by  reason  of  a  defect  or  insecurity 
in  the  place  of  deposit. 

The  plaintiff  claims  that  the  finding  was  a  wrongful  act  on  the  part 
of  the  defendant,  and  that  therefore  he  is  entitled  to  recover  the  money 
or  to  have  it  replaced.  We  do  not  so  regard  it.  The  safe  was  left  with 
the  defendant  for  sale.  As  seller  he  would  properly  examine  it  under 
an  implied  permission  to  do  so,  to  qualify  him  the  better  to  act  as  seller. 
Also  under  the  permission  to  use  it  for  his  books,  he  would  have  the 
right  to  inspect  it  to  see  if  it  was  a  fit  depository.  And  finally,  as  a 
possible  purchaser,  he  might  examine  it,  for  though  he  had  once  declined 
to  purchase,  he  might,  on  closer  examination,  change  his  mind.  And 
the  defendant,  having  found  in  the  safe  something  which  did  not  be- 
long there,  might,  we  think,  properly  remove  it.  He  certainly  would 
not  be  expected  either  to  sell  the  safe  to  another,  or  to  buy  it  himself 
without  first  removing  it.  It  is  not  pretended  that  he  used  any  vio- 
lence or  did  any  harm  to  the  safe.  And  it  is  evident  that  the  idea  that 
any  trespass  or  tort  had  been  committed  did  not  even  occur  to  the  plain- 
tiff's agent  when  he  was  first  informed  of  the  finding. 

The  general  rule  undoubtedly  is,  that  the  finder  of  lost  property  is 
entitled  to  it  as  against  all  the  world  except  the  real  owner,  and  that 
ordinarily  the  place  where  it  is  found  does  not  make  any  difference. 
We  cannot  find  anything  in  the  circumstances  of  the  case  at  bar  to  take 
it  out  of  this  rule.  We  give  the  defendant  judgment  for  costs. 


24  ORDINARY   BAILMENTS. 

DANIELSON  v.   ROBERTS. 

44  Oreg.  108 ;  74  Pae.  R.  913 ;  102  Am.  St.  R.  G27  ;  05  L.  R.  A.  .  2  /4. 

Bean,  J.  This  is  an  action  of  trover  to  recover  for  the  alleged 
conversion  of  money.  The  plaintiffs  aver,  in  substance,  that  in  March, 
1894,  while  engaged  at  the  request  of  the  defendants  in  cleaning  out  and 
removing  the  loose  dirt  and  debris  from  an  old  building  situated  on 
premises  occupied  by  the  defendants,  they  discovered  a  tin  ves 
rusty  and  worn  with  age,  which  contained  the  sum  of  seven  thousand 
dollars  in  gold  coin  of  the  United  States ;  that  the  defendants  wrong- 
fully took  and  received  the  money  from  the  plaintiffs,  and  have  ever 
since  wrongfully  and  unlawfully  detained  the  same,  to  their  damage 
in  the  sum  of  seven  thousand  dollars ;  that  the  building  in  which  the 
money  was  found  had  stood  on  the  premises  for  more  than  forty  years, 
and  during  that  time  had  been  in  the  possession  and  control  of  many 
owners  and  tenants ;  that  the  dirt  and  debris  which  the  plaintiffs  were 
engaged  in  cleaning  out  and  removing  at  the  time  the  money  was  dis- 
covered had  been  undisturbed  for  many  years  ;  that  the  vessel  which 
contained  the  money  was  so  worn  and  destroyed  by  time  and  the  ele- 
ments that  it  was  difficult  to  ascertain  from  an  inspection  of  it  what 
kind  of  a  vessel  it  had  been,  and  plaintiffs  could  hardly  hold  it  together 
until  it  and  its  contents  were  taken  by  the  defendants ;  that  the  owner 
of  the  vessel  and  the  money  contained  therein  "lias  long  since  died, 
and  the  said  vessel  and  the  said  sum  of  seven  thousand  dollars  contained 
therein  were  prior  to  said  time  lost,  and  their  whereabouts  unknown  to 
any  person  or  persons  whatever";  that  plaintiffs  are  the  discoverers 
of  the  money  and  are  now,  and  ever  since  the  —  day  of  March,  L894, 
have  been,  the  owners  thereof,  and  entitled  to  its  immediate  possession  ; 
that  defendants  wrongfully  and  unlawfully  fail,  neglect,  and  refuse  to 
repay  the  same  to  the  plaintiffs,  etc.  The  answer  denies  all  the  material 
allegations  of  the  complaint,  except  the  discovery  by  the  plaintiffs  of 
the  treasure,  and  that  they  were  working  for  the  defendants  at  the 
time,  and  alleges  affirmatively  th.it  the  money  discovered  did  not 
exceed  the  sum  of  one  thousand  dollars,  and  was  the  property  of  one 
of  the  defendants,  who  had  voluntarily  deposited  it  in  the  place  where 
discovered  for  safekeeping;  and  at  no  time  had  abandoned  or  lost  it. 
The  reply  denies  the  material  allegations  of  the  answer.  Upon  the 
issues  joined  the  cause  came  on  for  trial  before  a  jury.  After  the  plain- 
tiffs' testimony  was  all  in,  the  defendants  moved  for  and  were  allowed 
a  nonsuit.     [Recital  of  the  evidence  in  detail  omitted.] 

The  motion  for  nonsuit  was  sustained  on  the  ground,  as  we  under- 
stand it,  that  the  evidence  for  the  plaint itt's  shewed  that  the  money 
in  question  had  been  intentionally  deposited  by  some  one  where  found, 
and  therefore  the  plaintiffs  could  not  invoke  the  rule  that  the  finder  of 
lost  property  is  entitled  to  its  possession  against  all  the  world  except 


RELATIONS-  OF   BAILOR   AND   BAILEE.  25 

its  true  owner.  Ever  since  the  early  case  of  Armory  v.  Delamirie,  1 
Strange,  504  [20]  where  it  was  held  that  the  finder  of  a  jewel  might 
maintain  trover  for  the  conversion  thereof  by  a  wrongdoer,  the  right 
of  the  finder  of  lost  property  to  retain  it  against  all  persons  except  the 
true  owner  has  been  recognised.  In  that  case  a  chimney  sweeper's 
boy  found  a  jewel,  and  carried  it  to  a  goldsmith  to  ascertain  what  it 
was.  The  goldsmith  refused  to  return  it,  and  it  was  held  that  the  boy 
might  maintain  trover  on  the  ground  that  by  the  finding  he  had  acquired 
such  a  property  in  the  jewel  as  would  entitle  him  to  keep  it  against  all 
persons  but  the  rightful  owner.  This  case  has  been  uniformly  followed 
in  England  and  America,  and  the  law  upon  this  point  is  well  settled : 
Sovern  v.  Yoran,  16  Or.  269  (8  Am.  St.  Rep.  293,  20  Pac.  100) ;  19  Am. 
&  Eng.  Ency.  of  Law  (2  ed.),  579.  But  it  is  argued  that  property 
is  lost  in  the  legal  sense  of  that  word  only  when  the  possession  has 
been  casually  and  involuntarily  parted  with,  and  not  when  the  owner 
purposely  and  voluntarily  places  or  deposits  it  in  a  certain  place  for 
safekeeping,  although  he  may  thereafter  forget  it,  and  leave  it  where 
deposited,  or  may  die  without  disclosing  to  any  one  the  place  of  deposit. 
This  seems  to  have  been  the  view  taken  by  Mr.  Justice  Lord  in  Sovern 
v.  Yoran,  where  money  was  found  hidden  under  the  floor  of  a  barn.  It 
had  evidently,  as  in  this  case,  been  deposited  there  by  some  one,  and 
the  question  for  decision  was  whether  the  defendant,  who  had  treated 
the  money  as  lost  property,  and  disposed  of  it  as  provided  in  the  statute, 
was  guilty  of  a  conversion,  and  liable  to  the  true  owner  therefor.  It  is 
said  in  the  opinion  that  until  the  owner  was  discovered,  the  money 
was  in  the  nature  of  treasure  trove,  and  could  not  be  treated  as  lost 
property,  within  the  meaning  of  the  statute.  At  common  law  a  dis- 
tinction was  made  between  lost  property  and  treasure  trove.  Lost 
property  was  such  as  was  found  on  the  surface  of  the  earth,  and  with 
which  the  owner  had  involuntarily  parted.  The  presumption  arising 
from  the  place  of  finding  was  that  the  owner  had  intended  to  abandon 
his  property,  and  that  it  had  gone  back  to  the  original  stock,  and 
therefore  belonged  to  the  finder  or  first  taker  until  the  owner  appeared 
and  shewed  that  its  losing  was  accidental,  or  without  an  intention 
to  abandon  the  property.  Treasure  trove,  on  the  other  hand,  was 
money  or  coin  found  hidden  or  secreted  in  the  earth  or  other  private 
place,  the  owner  being  unknown.  It  originally  belonged  to  the  finder 
if  the  owner  was  not  discovered  ;  but  Blackstone  says  it  was  afterward 
judged  expedient,  for  the  purposes  of  State,  and  particularly  for  the 
coinage,  that  it  should  go  to  the  king ;  and  so  the  rule  was  promulgated 
that  property  found  on  the  surface  of  the  earth  belonged  to  the  finder 
until  the  owner  appeared,  but  that  found  hidden  in  the  earth  belonged 
to  the  king :   1  Bl.  Com.  295. 

In  this  country  the  law  relating  to  treasure  trove  has  generally  been 
merged  into  the  law  of  the  finder  of  lost  property,  and  it  is  said  that 
the  question  as  to  whether  the  English  law  of  treasure  trove  obtains 


26  ORDINARY    BAILMENTS. 

in  any  State  has  never  been  decided  in  America :  2  Kent,  357 ;  26  Am. 
Eng.  Ency.  of  Law  (1  ed.),  538.  But  at  the  present  stage  of  the  con- 
troversy it  is  immaterial  whether  the  money  discovered  by  plaintiffs 
was  technically  lost  property  or  treasure  trove,  or  if  treasure  trove, 
whether  it  belongs  to  the  State  or  to  the  finder,  or  should  be  disposed 
of  as  lost  property  if  no  owner  is  discovered.  In  either  event  the  plain- 
tiffs are  entitled  to  the  possession  of  the  money  as  against  the  defend- 
ants, unless  the  latter  can  shew  a  better  title.  The  reason  of  the  rule 
giving  the  finder  of  lost  property  the  right  to  retain  it  against  all  persons 
except  the  true  owner  applies  with  equal  force  and  reason  to  money 
found  hidden  or  secreted  in  the  earth  as  to  property  found  on  the  sur- 
face. It  is  thus  stated  in  Armory  v.  Delamirie,  1  Smith's  Lead.  Cas., 
pt.  1, 475  [20] :  "  Everyone  on  whom  the  possession  of  chattels  personal  is 
cast  by  the  law,  by  the  act  of  the  parties,  or  through  the  force  of  cir- 
cumstances is  charged  with  the  duty  of  taking  reasonable  care,  and 
answerable  if  he  does  not  to  the  owner,  and  may  consequentially  recover 
for  any  wrongful  act  by  which  the  property  is  impaired,  in  the  capacity 
of  trustee,  if  in  no  other  character."  The  money  for  which  this  action 
is  brought  came  lawfully  into  the  possession  of  the  plaintiffs.  The 
circumstances  under  which  it  was  discovered,  the  condition  of  the  vessel 
in  which  it  was  contained,  and  the  place  of  deposit,  as  shown  by  the 
plaintiffs'  testimony,  all  tend  with  more  or  less  force  to  indicate  that 
it  had  been  buried  for  some  considerable  time,  and  that  the  owner  was 
probably  dead  or  unknown.  The  plaintiffs,  having  thus  come  into 
its  possession,  were  charged  with  the  duty  of  holding  it  for  the  true 
owner,  if  he  could  be  ascertained,  and,  if  not,  of  making  such  disposition 
thereof  as  the  law  required.  The  possession  of  the  money  was  cast 
upon  them  by  the  force  of  circumstances.  They  were  consequently 
under  the  obligation  of  taking  reasonable  care  of  it  until  it  could  be 
returned  to  the  true  owner  or  otherwise  disposed  of,  and  they  may 
therefore  maintain  such  actions  or  proceedings  as  may  be  necessary  to 
enable  them  to  retain  or  recover  its  possession.  The  fact  that  the  money 
was  found  on  the  premises  of  the  defendants,  or  that  the  plaintiffs  were 
in  their  service  at  the  time,  can  in  no  way  affect  the  plaintiffs'  right  to 
possession,  or  their  duty  in  reference  to  the  lost  treasure.  Hamaker 
v.  Blanchard,  90  Pa.  377  (35  Am.  Rep.  664) ;  Bowen  v.  Sullivan,  62 
Ind.  281  (30  Am.  Rep.  172) ;  Tatum  v.  Sharpless,  6  Phila.  18;  Durfee 
v.  Jones,  11  R.  I.  588  (23  Am.  R.  528)  [21];  Bridges  v.  Hawkesworth, 
21  L.  J.  Q.  B.  75.  We  are  of  the  opinion,  therefore,  that  the  case  should 
have  gone  to  the  jury,  and,  unless  it  should  appear  that  the  defendants 
are  the  owners  of  the  money,  they  must  return  the  possession  thereof 
to  the  plaintiffs,  in  order  that  they  may  make  lawful  disposition  thereof. 
Judgment  reversed  and  new  trial  ordered. 

Reversed. 


RELATIONS    OF    BAILOR   AND    BAILEE.  27 

SOUTH  STAFFORDSHIRE  WATER  COMPANY  v.  SHARMAN. 

[1896]     2  Q.  B.  44.     1896. 

Lord  Russel  of  Killowen,  C.  J.  In  my  opinion,  the  county  court 
judge  was  wrong,  and  his  decision  must  be  reversed  and  judgment 
entered  for  the  plaintiffs.  The  case  raises  an  interesting  question. 
The  action  was  brought  in  detinue  to  recover  the  possession  of  two 
gold  rings  from  the  defendant.  The  defendant  did  not  deny  that  he 
had  possession  of  the  rings,  but  he  denied  the  plaintiffs'  title  to  recover 
them  from  him.  Under  those  circumstances  the  burden  of  proof  is  cast 
upon  the  plaintiffs  to  make  out  that  they  have,  as  against  the  defendant, 
the  right  to  the  possession  of  the  rings. 

Now,  the  plaintiffs,  under  a  conveyance  from  the  corporation  of 
Lichfield,  are  the  owners  in  fee  simple  of  some  land  on  which  is  situated 
a  pool  known  as  the  Minster  Pool.  For  purposes  of  their  own  the  plain- 
tiffs employed  the  defendant,  among  others,  to  clean  out  that  pool. 
In  the  course  of  that  operation  several  articles  of  interest  were  found, 
and  amongst  others  the  two  gold  rings  in  question  were  found  by  the 
defendant  in  the  mud  at  the  bottom  of  the  pool. 

The  plaintiffs  are  the  freeholders  of  the  locus  in  quo,  and  as  such  they 
have  the  right  to  forbid  anybody  coming  on  their  land  or  in  any  way 
interring  with  it.  They  had  the  right  to  say  that  their  pool  should 
be  cleaned  out  in  any  way  that  they  thought  fit,  and  to  direct  what 
should  be  done  with  anything  found  in  the  pool  in  the  course  of  such 
cleaning  out.  It  is  no  doubt  right,  as  the  counsel  for  the  defendant 
contended,  to  say  that  the  plaintiffs  must  shew  that  they  had  actual 
control  over  the  locus  in  quo  and  the  things  in  it ;  but  under  the  circum- 
stances, can  it  be  said  that  the  Minster  Pool  and  whatever  might  be 
in  that  pool  were  not  under  the  control  of  the  plaintiffs  ?  In  my  opin- 
ion, they  were.  The  case  is  like  the  case,  of  which  several  illustrations 
were  put  in  the  course  of  the  argument,  where  an  article  is  found  on 
private  property,  although  the  owners  of  that  property  are  ignorant 
that  it  is  there.  The  principle  on  which  this  case  must  be  decided, 
and  the  distinction  which  must  be  drawn  between  this  case  and  that  of 
Bridges  v.  Hawkesworth,  21  L.  J.  (Q.  B.)  75,  is  to  be  found  in  a  passage 
in  Pollock  and  Wright's  Essay  on  Possession  in  the  Common  Law, 
p.  41 :  "  The  possession  of  land  carries  with  it  in  general,  by  our  law, 
possession  of  everything  which  is  attached  to  or  under  that  land,  and, 
in  the  absence  of  a  better  title  elsewhere,  the  right  to  possess  it  also. 
And  it  makes  no  difference  that  the  possessor  is  not  aware  of  the  thing's 
existence.  ...  It  is  free  to  any  one  who  requires  a  specific  intention 
as  part  of  a  de  facto  possession  to  treat  this  as  a  positive  rule  of  law.  But 
it  seems  preferable  to  say  that  the  legal  possession  rests  on  a  real 
de  facto  possession  constituted  by  the  occupier's  general  power  and 
intent  to  exclude  unauthorised  interference." 


28  ORDINARY   BAILMENTS. 

That  is  the  ground  on  which  I  prefer  to  base  my  judgment.  There 
is  a  broad  distinction  between  this  case  and  those  cited  from  Black- 
stone.  Those  were  cases  in  which  a  thing  was  cast  into  a  public  place 
or  into  the  sea  —  into  a  place,  in  fact,  of  which  it  could  not  be  said  that 
any  one  had  a  real  de  facto  possession,  or  a  general  power  and  intent  to 
exclude  unauthorised  interference. 

The  case  of  Bridges  v.  Hawkesworth,  21  L.  J.  (Q.  B.)  75,  stands  by 
itself,  and  on  special  grounds  ;  and  on  those  grounds  it  seems  to  me  that 
the  decision  in  that  case  was  right.  Some  one  had  accidentally  dropped 
a  bundle  of  banknotes  in  a  public  shop.  The  shopkeeper  did  not  know 
they  had  been  dropped,  and  did  not  in  any  sense  exercise  control  over 
them.  The  shop  was  open  to  the  public,  and  they  were  invited  to  come 
there.  A  customer  picked  up  the  notes  and  gave  them  to  the  shop- 
keeper in  order  that  he  might  advertise  them.  The  owner  of  the  notes 
was  not  found,  and  the  finder  then  sought  to  recover  them  from  the 
shopkeeper.  It  was  held  that  he  was  entitled  to  do  so,  the  ground  of 
the  decision  being,  as  was  pointed  out  by  Patteson,  J.,  that  the  notes, 
being  dropped  in  the  public  part  of  the  shop,  were  never  in  the  custody 
of  the  shopkeeper,  or  "within  the  protection  of  his  house." 

It  is  somewhat  strange  that  there  is  no  more  direct  authority  on  the 
question ;  but  the  general  principle  seems  to  me  to  be  that  where  a 
person  has  possession  of  house  or  land,  with  a  manifest  intention  to 
exercise  control  over  it  and  the  things  which  may  be  upon  or  in  it,  then, 
if  something  is  found  on  that  land,  whether  by  an  employee  of  the 
owner  or  by  a  stranger,  the  presumption  is  that  the  possession  of  that 
thing  is  in  the  owner  of  the  locus  in  quo. 

Wills,  J.  I  entirely  agree ;  and  I  will  only  add  that  a  contrary 
decision  would,  as  I  think,  be  a  great  and  most  unwise  encouragement 
to  dishonesty. 

Appeal  allowed;  judgment  for  plaintiffs. 


2.   POSSESSION  BY  BAILEE. 
BRETZ  v.   DIEHL. 
117  Pa.  589 ;  11  Atl.  R.  893  ;  2  Am.  St.  R.  706.     1888. 

Clark,  J.  The  defendants  in  this  case  are  judgment  creditors  of 
William  D.  Newman,  a  miller,  operating  a  steam  flouring  mill  in  the 
town  of  Bedford.  Having  issued  executions,  they  levied  on  some  eighty 
or  ninety  barrels  of  flour,  and  some  bran  found  on  the  floor  of  Newman's 
mill.  The  plaintiffs  claimed  the  property  levied  upon,  alleging  that  it 
was  the  product  of  grain  by  them  delivered  to  and  held  by  Newman  as 


POSSESSION   BY   BAILEE.  29 

their  bailee.     This  is  a  feigned  issue,  framed  under  the  sheriff's  inter- 
pleader act  to  determine  the  dispute. 

The  plaintiffs,  who  are  farmers  residing  in  the  vicinity  of  Bedford, 
brought  their  grain  to  this  mill ;  no  special  contract  or  arrangement 
was  made  with  the  miller,  by  any  of  the  plaintiffs  when  they  delivered 
their  wheat,  but,  in  accordance  with  the  practice  of  the  mill  in  all  cases, 
except  when  wheat  was  at  once  paid  for,  a  receipt  or  memorandum  was 
given  in  the  following  form  :  — 

Crystal  Mills,  Bedford,  Pa., 

Sept,  12,  1884. 

Amount 

Received  from  D.  W.  Lee : 
Four  hundred  and  fifty-five  H  b.  wheat $455.14 


n 


rye 


"   corn 


Two  hundred  and  fifty-five  i§  b.  oats 255.12 

"  buckwheat 

For  use  of  self.  W.  D.  Newman. 

The  mill  was  not  arranged  to  keep  the  several  lots  of  grain  in  separate 
parcels.  It  was  so  constructed  that  all  the  grain  delivered  into  it  was 
hoisted  to  the  second  floor,  emptied  into  a  sink  on  the  first  floor,  and 
from  thence  carried  by  elevators  into  a  bin  on  the  third  floor,  where,  at 
times,  there  was  a  large  accumulated  mass  of  wheat.  Newman  also 
purchased  wheat  in  considerable  quantities  from  time  to  time,  which 
was  delivered  into  the  mill,  and  disposed  of  as  the  other  wheat.  This 
promiscuous  commingling  of  the  grain  into  a  common  mass  was  in  accord- 
ance with  the  known  usage  of  the  mill,  which  was  supplied  for  grind- 
ing from  the  mass  of  the  wheat,  without  any  discrimination  as  to  the 
several  lots  or  parcels  in  which  it  was  received.  The  miller  was,  of 
course,  under  no  obligation  to  restore  to  the  plaintiffs  the  specific  or 
identical  wheat  which  he  received,  nor  the  product  of  it  in  flour;  in- 
deed, this,  owing  to  the  manner  in  which  the  business  was  conducted, 
was  practically  impossible. 

The  fundamental  distinction  between  a  bailment  and  a  sale  is,  that 
in  the  former  the  subject  of  the  contract,  although  in  an  altered  form, 
is  to  be  restored  to  the  owner,  whilst  in  the  latter  there  is  no  obligation 
to  return  the  specific  article ;  the  party  receiving  it  is  at  liberty  to  re- 
turn some  other  thing  of  equal  value  in  place  of  it.  In  the  one  case  the 
title  is  not  changed,  in  the  other  it  is,  the  parties  standing  in  the  relation 
of  debtor  and  creditor.  Thus  in  Norton  v.  Woodruff,  2  N.  Y.  153,  a 
miller  agreed  to  take  certain  wheat,  and  to  give  one  barrel  of  superfine 
flour  for  every  four  f f ths  bushels  thereof,  the  flour  to  be  delivered  at  a 
fixed  time,  or  as  much  sooner  as  he  could  make  it.     As  the  miller's 


30  ORDINARY   BAILMENTS. 

contract  was  satisfied  by  a  delivery  of  flour  from  any  wheat,  the  trans- 
action was  held  to  be  a  sale.  But  in  Malloy  v.  Willis,  4  N.  Y.  76,  wheat 
was  delivered  under  a  contract  "to  be  manufactured  into  flour,"  and 
one  barrel  of  the  flour  was  to  be  delivered  for  every  four  Hths  bushels 
of  wheat ;  this  transaction  was  by  the  same  court  held  to  be  a  bailment. 

If  a  party,  having  charge  of  the  property  of  others,  so  confounds  it 
with  his  own  that  the  line  of  distinction  cannot  be  traced,  all  the  incon- 
venience of  the  confusion  is  thrown  upon  the  party  who  produces  it ; 
where,  however,  the  owners  consent  to  have  their  wheat  mixed  in  a 
common  mass,  each  remains  the  owner  of  his  share  in  the  common  stock. 
If  the  wheat  is  delivered  in  pursuance  of  a  contract  for  bailment,  the 
mere  fact  that  it  is  mixed  with  a  mass  of  like  quality,  with  the  knowl- 
edge of  the  depositor  or  bailor,  does  not  convert  that  into  a  sale  which 
was  originally  a  bailment,  and  the  bailee  of  the  whole  can,  of  course, 
have  no  greater  control  of  the  mass  than  if  the  share  of  each  were  kept 
separate.  If  the  commingled  mass  has  been  delivered  on  simple  stor- 
age, each  is  entitled  on  demand  to  receive  his  share ;  if  for  conversion 
into  flour,  to  his  proper  proportion  of  the  product :  Chase  v.  Washburn, 
1  Ohio  N.  S.  244  [59  Am.  Dec.  623] ;  Hutchison  v.  Commonwealth, 
82  Pa.  472.  It  makes  no  difference  that  the  bailee  had,  in  like  manner, 
contributed  to  the  mass  of  his  own  wheat ;  for  although  the  absolute 
owner  of  his  own  share,  he  still  stands  as  a  bailee  to  the  others,  and  he 
cannot  abstract  more  than  that  share  from  the  common  stock,  without 
a  breach  of  the  bailment,  which  will  subject  him  not  only  to  a  civil 
suit,  but  also  to  a  criminal  prosecution  :  Hutchison  v.  Commonwealth, 
82  Pa.  472. 

But  where,  as  in  Chase  v.  Washburn,  supra,  the  understanding  of 
the  parties  was  that  the  person  receiving  the  grain  might  take  from  it 
or  from  the  flour  at  his  pleasure,  and  appropriate  the  same  to  his  own 
use,  on  the  condition  of  his  procuring  other  wheat  to  supply  its  place, 
the  dominion  over  the  property  passes  to  the  depositary,  and  the 
transaction  is  a  sale,  and  not  a  bailment.  To  the  same  effect  are  Schind- 
ler  v.  Westover,  99  Ind.  395;  Richardson  v.  Olmstead,  74  111.  213; 
Bailey  v.  Bearly,  87  111.  556 ;  and  Johnston  v.  Browne,  37  la.  200.  In 
Lyon  v.  Lenon,  106  Ind.  567,  the  distinction  is  thus  stated :  "  If  the 
dealer  has  the  right,  at  his  pleasure,  either  to  ship  and  sell  the  same  on 
his  own  account,  and  pay  the  market  price  on  demand,  or  retain  and 
redeliver  the  wheat,  or  other  wheat  in  the  place  of  it,  the  transaction  is 
a  sale.  It  is  only  when  the  bailor  retains  the  right  from  the  beginning 
to  elect  whether  he  will  demand  the  redelivery  of  his  property,  or  other 
of  like  quality  and  grade,  that  the  contract  will  be  considered  one  of 
bailment.  If  he  surrender  to  the  other  the  right  of  election,  it  will  be 
considered  a  sale,  with  an  option  on  the  part  of  the  purchaser  to  pay 
either  in  money  or  property,  as  stipulated.  The  distinction  is  :  Can 
the  depositor,  by  his  contract,  compel  a  delivery  of  wheat,  whether  the 
dealer  is  willing  or  not  ?     If  he  can,  the  transaction  is  a  bailment.     If 


POSSESSION   BY   BAILEE.  31 

the  dealer  has  the  option  to  pay  for  it  in  money  or  other  wheat,  it  is  a 
sale."  This  distinction  is  drawn,  of  course,  with  reference  to  cases 
where  grain  is  deposited  in  a  mass,  as  in  grain  elevators,  etc. 

There  are  cases  in  which  the  doctrine  of  bailment  has  been  carried 
much  beyond  the  rule  recognised  in  the  cases  we  have  cited :  See 
Sexton  v.  Graham,  53  la.  181,  and  Nelson  v.  Brown,  53  la.  155.  We 
think,  however,  the  rule  recognised  in  Chase  v.  Washburn,  supra,  and 
Lyon  v.  Lenon,  supra,  is  a  safe  one,  and  is  more  in  accord  with  the  well- 
settled  principles  of  the  law  relating  to  bailment. 

But  in  the  case  at  bar,  we  are  not  called  upon  to  say  what  would  be 
the  effect  upon  the  transaction,  if  Newman  had  authority,  in  the  regu- 
lar course  of  dealing,  to  ship  or  sell  the  wheat  of  his  customers  on  his 
own  account.  Undoubtedly  he  had  a  right  to  sell  of  the  grain  or  flour 
to  the  extent  of  his  own  share ;  that  is  to  say,  what  he  contributed  to 
the  common  stock  and  tolls  to  which  he  was  entitled.  But  the  jury  has 
found  that  he  had  no  authority  whatever  to  sell  or  to  abstract  from  the 
common  stock  beyond  the  amount  to  which  he  was  himself  entitled. 
In  the  general  charge,  and  also  in  the  answers  to  the  points  submitted, 
the  learned  court  instructed  the  jurors  in  the  clearest  manner,  that  if 
they  should  find  from  the  evidence  that  Newman,  by  the  nature  of  his 
dealings  with  the  several  plaintiffs,  had  acquired  such  dominion  over 
their  wheat,  as  authorised  him,  at  his  pleasure,  not  only  to  grind  it 
into  flour,  but  also  to  sell  the  same  for  his  own  use,  the  transaction  must 
necessarily  be  treated  as  a  sale,  and  that,  in  that  event,  the  plaintiffs 
could  not  recover.  This  instruction  was  repeated  with  marked  empha- 
sis several  times  during  the  progress  of  the  charge,  and  it  seems  quite 
impossible  that  the  jury  could  have  laboured  under  any  misapprehension 
as  to  the  nature  of  the  inquiry  they  were  to  make.  The  verdict  of  the 
jury  was  for  the  plaintiffs,  and  we  must  assume  the  facts  which  it  is 
plain  the  jury,  in  arriving  at  such  a  verdict,  must  have  found,  viz.,  that 
Newman  had  no  authority  to  sell  the  grain  delivered  into  his  mill  under 
the  arrangement  with  the  plaintiffs,  that  is  to  say,  their  share  of  the 
common  stock,  nor  the  flour  which  was  the  product  thereof.  It  was  the 
plain  duty  of  Newman,  however,  to  see  to  it  that  at  all  times  the 
mill  contained  wheat  or  flour  sufficient  in  amount  to  answer  all  demands 
under  the  bailment ;  failing  in  this,  he  was  derelict  in  duty,  and  liable, 
under  the  law,  for  the  appropriation  and  conversion  unto  his  own  use 
of  property  which  did  not  belong  to  him. 

Nor  do  we  see  that  the  court  committed  any  error  in  the  answers  to 
the  plaintiffs'  points.  These  points,  according  to  the  general  practice, 
were  based  upon  an  assumption  of  facts,  the  truth  or  falsity  of  which 
was  for  the  jury,  and  the  law  was  stated  as  upon  a  finding  of  these  facts 
by  the  jury.  They  were  relevant  to  the  issue ;  they  disclosed  clearly 
the  specific  facts  assumed,  which  were  fairly  and  reasonably  consistent 
with  the  plaintiffs'  theory  of  the  case  upon  the  evidence,  and  the 
opinion  of  the  court  thereon  could  not  have  had  any  weight  with  the 


32  ORDINARY   BAILMENTS. 

jurors  in  their  deliberations,  unless  the  facts  assumed  were,  in  their 
judgment,  established  by  the  proofs.  The  points  certainly  were  not 
such  as  could  be  disregarded  by  the  court,  and  we  cannot  see  how  the 
answers  thereto  could  be  supposed  to  have  misled  the  jury. 

The  learned  court  defined  a  bailment  and  a  sale,  marking  the  dis- 
tinguishing features  of  each,  and  as  the  nature  of  the  transaction 
depended  not  wholly  upon  the  written  receipt,  but  in  part  on  verbal 
evidence  as  to  the  method  of  conducting  the  business,  the  question  was 
undoubtedly  one  proper  to  be  submitted  to  the  jury.  The  court 
instructed  the  jury  that  if  certain  facts  existed  the  transaction  was  a 
sale,  otherwise  it  was  but  a  bailment,  and  the  question  was  proper  for 
the  jury  whether  or  not,  under  the  instruction  of  the  court,  according 
to  the  facts  as  the  jury  might  find  them,  the  transaction  was  a  bailment 

or  a  sale. 

On  a  careful  review  of  the  whole  case,  we  find  no  error,  and  the  judg- 
ment is  affirmed. 


WOODWARD   v.   SEMANS. 
125  Ind.  330;   25  N.  E.  444  ;   21  Am.  St.  R.  225.     1890. 

Elliott,  J.  The  appellants  [defendants]  were  dealers  in  grain,  con- 
ducting a  warehouse  and  a  flouring-mill  at  the  town  of  Lapel.  The 
appellees  agreed  to  furnish  wheat  to  the  appellants,  for  which  the  appel- 
lants were  to  deliver  to  them,  on  request,  a  designated  number  of  pounds 
of  flour  and  bran  for  each  bushel  of  wheat  delivered.  The  flour  and 
bran  were  to  remain  in  the  possession  of  the  appellants,  subject  to  de- 
livery upon  the  demand  of  the  appellees.  Before  the  delivery  of  all  of 
the  flour  and  bran  to  the  appellees,  the  mill  and  warehouse  of  the  appel- 
lants were  burned,  and  the  flour  and  bran  destroyed.  The  fire  was 
not  caused  by  any  negligence  or  wrong  of  the  appellants. 

It  is  the  law  of  this  jurisdiction,  as  well  as  of  many  others,  that  where 
a  warehouseman  receives  grain  on  deposit  for  the  owner,  to  be  mingled 
with  other  grain  in  a  common  receptacle  from  which  sales  are  made, 
the  warehouseman  keeping  constantly  on  hand  grain  of  like  kind  and 
quality  for  the  depositor,  and  ready  for  delivery  to  him  on  call,  the  con- 
tract is  one  of  bailment,  and  not  of  sale.  Rice  /•.  Xixon,  97  Ind.  97  (49 
Am.  Rep.  430,  and  authorities  cited) ;  Bottenberg  v.  Xixon,  97  Ind.  106 ; 
Schindler  v.  Westover,  99  Ind.  395  ;  Lyon  i\  Lenon,  106  Ind.  567  (570) ; 
Preston  v.  Witherspoon,  109  Ind.  457;  Morningstar  v.  Cunningham, 
110  Ind.  328  (336).  But  the  case  before  us  does  not  fall  within  the  rule 
which  the  cases  cited  assert ;  on  the  contrary,  it  falls  within  an  entirely 
different  rule.  There  is  here  no  agreement  to  restore  to  the  original 
owner  the  identical  property  nor  to  restore  to  him  property  of  like 


POSSESSION   BY   BAILEE.  33 

quality,  nor  is  there  any  agreement  to  restore  to  him  the  product  of  the 
property.  The  agreement  is  to  yield  property  in  exchange  for  property, 
and  this  is  essentially  a  contract  of  sale.  The  appellees  were  entitled 
to  a  designated  quantity  of  flour  and  bran  for  each  bushel  of  wheat 
delivered  by  them,  but  they  were  not  entitled  to  the  flour  and  bran  pro- 
duced from  the  particular  wheat  delivered  by  them  to  the  appellants. 
There  was,  therefore,  no  undertaking  to  restore  the  wheat  either  in  its 
original  form  or  in  an  altered  form.  In  Bretz  v.  Diehl,  117  Pa.  St.  589 
(2  Am.  St.  R.  706)  [28],  the  court  said  :  "The  fundamental  distinction  be- 
tween a  bailment  and  a  sale  is,  that  in  the  former  the  subject  of  the 
contract,  although  in  an  altered  form,  is  to  be  restored  to  the  owner ; 
whilst  in  the  latter  there  is  no  obligation  to  return  the  specific  article ; 
the  party  receiving  it  is  at  liberty  to  return  some  other  thing  of  equal 
value  in  place  of  it."  Our  own  decisions  assert  a  similar  doctrine,  and 
by  some  of  them  it  has  been  applied  to  cases  very  like  the  present: 
Ewing  v.  French,  1  Blackf.  353 ;  Carlisle  v.  Wallace,  12  Ind.  252  (74 
Am.  Dec.  207) ;  Lyon  v.  Lenon,  supra.  The  decisions  of  other  courts 
are  in  full  agreement  with  our  own  :  Norton  v.  Woodruff,  2  N.  Y.  153  ; 
Austin  v.  Seligman,  21  Blatchf.  506;  South  Australian  Ins.  Co.  v. 
Randell,  L.  R.  3  P.  C.  100  (108) ;  Jones  v.  Kemp,  49  Mich.  9. 

Judgment  affirmed. 


NATIONAL  SAFE   DEPOSIT  CO.   v.   STEAD. 
250  111.  584;   95  N.  E.  R.  973;   Ann.  Cas.  1912  B.,  430.     1911. 

This  was  a  bill  in  chancery  filed  by  the  National  Safe  Deposit  Com- 
pany, the  appellant,  against  William  H.  Stead,  attorney-general,  Andrew 
Russell,  state  treasurer,  and  Walter  K.  Lincoln,  inheritance  tax  attor- 
ney, the  appellees,  in  the  Circuit  Court  of  Cook  county,  to  restrain  said 
officers  from  enforcing  against  the  appellant,  and  all  other  corporations, 
firms  and  individuals  similarly  situated  and  who  are  engaged  in  the 
business  of  renting  safety  deposit  boxes  and  safes  for  hire,  the  provisions 
of  section  9  of  an  act  entitled  "  An  act  to  tax  gifts,  legacies,  inheritances, 
transfers,  appointments  and  interests  in  certain  cases  and  to  provide 
for  the  collection  of  the  same,  and  repealing  certain  acts  therein  named," 
approved  June  14,  1909,  in  force  July  1,  1909  (Hurd's  Stat.  1909, 
p.  1897)  on  the  ground  that  said  section  of  the  act  is  unconstitutional 
and  void.  A  general  demurrer  was  interposed  to  the  bill  and  sus- 
tained and  the  bill  was  dismissed  for  want  of  equity,  and  the  record 
has  been  brought  to  this  court  by  the  complainant  by  appeal,  for  further 
review. 

[Portion  of  statement  omitted.] 

Hand,  J.     [Portion  of  opinion  on  point  of  practice  omitted.] 


34  ORDINARY   BAILMENTS. 

The  counsel  for  the  appellant  and  the  counsel  for  the  State  differ 
widely  and  fundamentally  upon  the  relation  which  the  appellant  sus- 
tains  towards  its  lessees,  and  the  property  which  its  lessees  place  in  the 
safety  deposit  boxes  and  safes  which  they  rent  from  the  appellant,  and 
as  to  the  interest  of  the  State  in  the  property  situated  in  a  safety  deposit 
box  or  safe,  placed  there  by  a  lessee,  upon  the  death  of  the  lessee,  when 
the  property  is  subject  to  the  payment  of  an  inheritance  tax.  We 
think,  for  the  proper  decision  of  this  case,  the  exact  relation  which  the 
appellant  sustains  to  a  person  to  whom  it  rents  a  safety  deposit  box  or 
safe,  and  the  property  placed  in  such  box  or  safe  by  the  lessee,  and  the 
interest  which  the  State  has  in  the  property  of  a  lessee  remaining  in 
such  safety  deposit  box  or  safe  upon  his  death,  if  such  property  is 
subject  to  an  inheritance  tax,  must  necessarily  be  determined  as  a  pre- 
liminary question,  as,  according  to  our  view,  the  correct  determination 
of  those  questions  will  simplify  many  of  the  questions  discussed  in  the 
briefs  and  eliminate  others,  and  place  the  case  in  such  a  situation  that 
a  rational  solution  of  the  question  here  involved,  whose  determination 
is  vital  to  a  correct  decision  of  this  case,  may  readily  be  determined. 

We  think  it  clear  that  where  a  safety  deposit  company  leases  a  safety 
deposit  box  or  safe,  and  the  lessee  takes  possession  of  the  box  or  safe 
and  places  therein  his  securities  or  other  valuables,  the  relation  of  bailee 
and  bailor  is  created  between  the  parties  to  the  transaction  as  to  such 
securities  or  other  valuables,  and  that  the  fact  that  the  safety  deposit 
company  does  not  know,  and  that  it  is  not  expected  it  shall  know,  the 
character  or  description  of  the  property  which  is  deposited  in  such 
safety  deposit  box  or  safe  does  not  change  that  relation,  any  more  than 
the  relation  of  a  bailee  who  should  receive  for  safe  keeping  a  trunk 
from  a  bailor  would  be  changed  by  reason  of  the  fact  that  the  trunk 
was  locked  and  the  key  retained  by  the  bailor,  although  the  obligation 
resting  upon  the  bailee  with  reference  to  the  care  he  should  bestow 
upon  the  property  in  the  trunk  might  depend  upon  his  knowledge  of 
the  contents  of  the  trunk.  Obviously,  the  bailee  would  be  in  possession 
of  the  trunk  and  its  contents,  and  no  amount  of  argument  would  demon- 
strate that  while  the  trunk  was  in  possession  of  the  bailee  its  contents 
were  in  the  possession  of  the  bailor,  solely  by  reason  of  the  fact  that  the 
bailor  of  the  trunk  retained  the  key  and  the  bailee  did  not  have  access 
to  the  trunk.  We  are  of  the  opinion  that  the  relation  of  bailee  and  bailor 
exists  between  the  appellant  and  its  lessees,  and  that  the  deposit  of  the 
securities  and  valuables  by  its  lessees  in  rented  safety  deposit  boxes  or 
safes  is  a  bailment,  and  that  the  law  applicable  to  bailments,  generally, 
applies  to  such  transaction  and  to  such  property. 

In  Mayer  v.  Brensinger,  180  111.  110  [54  N.  E.  159,  72  Am.  St.  R.  196], 
the  appellee  rented  from  the  appellant  a  safety  deposit  box  in  his  safety 
deposit  vault,  in  which  he  deposited  cash.  During  the  illness  of  the 
appellee  the  cash  was  removed  from  the  box,  and  suit  was  brought  and 
a  recovery  was  had.     In  that  case,  as  in  this,  the  appellee  retained  the 


POSSESSION   BY   BAILEE.  35 

key  to  the  box.  The  court,  on  page  113,  said:  "The  relation  which 
the  appellant  bore  to  the  appellee  was  that  of  a  bailee  or  depositary 
for  hire.  As  such  bailee  or  depositary  for  hire  the  appellant  was  bound 
to  exercise  ordinary  care  and  diligence  in  the  preservation  of  the  prop- 
erty entrusted  to  him  by  the  appellee.  Ordinary  care  in  such  cases 
is  such  care  as  every  prudent  man  takes  of  his  own  goods,  and  ordinary 
diligence  in  the  preservation  of  such  goods  is  such  diligence  as  men  of 
common  prudence  usually  exercise  about  their  own  affairs.  (Chicago, 
and  Alton  R.  Co.  v.  Scott,  42  111.  132.)  Although  one  who  hires  a  box 
in  the  vaults  of  a  safety  deposit  company  may  keep  the  key  himself, 
yet  the  company,  without  any  special  contract  to  that  effect,  will  be 
held  to  at  least  ordinary  care  in  keeping  the  deposit." 

In  the  case  of  Lockwood  v.  Manhattan  Storage  and  Warehouse  Co. 
[28  App.  Div.  68]  50  N.  Y.  Supp.  974,  it  appeared  that  the  defendant, 
among  other  things,  maintained  at  its  warehouse  safe  deposit  vaults, 
containing  separate  safe  deposit  boxes  or  safes.  Plaintiff  had,  for  a 
consideration  paid,  rented  a  safe  deposit  box  of  defendant.  One  key 
to  the  box  was  held  by  the  plaintiff  and  one  by  the  defendant.  Access 
to  the  box  could  be  gained  only  by  the  use  of  said  two  keys.  The  plain- 
tiff deposited  in  her  box  certain  sums  of  money,  which,  when  she 
returned  some  days  later,  she  found  had  disappeared.  Suit  was  brought 
to  recover  the  value  of  the  property  abstracted.  That  defendant  was 
not  in  the  possession  of  plaintiff's  property  was  urged  upon  the  court. 
In  disposing  of  the  case  the  court  said :  "  It  is  urged  upon  the  part  of 
the  defendant  that  it  was  not  the  bailee  because  it  was  not  in  possession 
of  the  plaintiff's  property.  If  it  was  not,  it  is  difficult  to  know  who 
was.  Certainly  the  plaintiff  was  not,  because  she  could  not  obtain 
access  to  the  property  without  the  consent  and  active  participation  of 
the  defendant.  She  could  not  go  into  her  safe  unless  the  defendant 
used  its  key  first  and  then  allowed  her  to  open  the  box  with  her  own 
key,  thus  absolutely  controlling  the  access  of  the  plaintiff  to  that  which 
she  had  deposited  within  the  safe.  The  vault  was  the  defendant's  and 
was  in  its  custody,  and  its  contents  were  under  the  same  conditions. 
As  well  might  it  be  said  that  a  warehouseman  was  not  in  possession  of 
silks  in  boxes  deposited  with  him  as  warehouseman  because  the  boxes 
were  nailed  up  and  he  had  no  access  to  them."  See,  also,  Cussen  v. 
Southern  California  Sav.  Bank,  133  Cal.  534  [65  Pac.  1099,  85  Am.  St. 
Rep.  221];  Roberts  v.  Safe  Deposit  Co.,  123  N.  Y.  57  [25  N.  E.  294, 
9  L.  R.  A.  438,  20  Am.  St.  Rep.  718] ;  Safe  Deposit  Co.  v.  Pollock,  85 
Pa.  St.  391  [27  Am.  Rep.  660]. 

We  think  the  above  authorities  clearly  sustain  the  position  that  the 
appellant,  in  law,  is  in  possession  of  the  property  of  its  lessees  deposited 
in  the  safety  deposit  boxes  or  safes  which  it  rents  to  them,  and  while 
it  may  not  have  knowledge  of  the  character,  amount,  or  quantity  of 
the  property  which  its  lessees  have  deposited  in  the  safety  deposit  boxes 
or  safes  leased  from  it,  nevertheless,  it  is  in  the  legal  custody  and  con- 


36  ORDINARY   BAILMENTS. 

trol  of  such  property.  True,  while  a  lessee  is  living,  by  the  terms  of 
the  lease  with  the  appellant  he  has  access  to  the  box  or  safe,  and  upon 
his  death  the  duty  devolves  upon  the  appellant  to  hold  the  contents  of 
his  box  or  safe  and  to  deliver  them  to  those  persons,  only,  to  whom  they 
belong  or  to  whom  the  law  directs  they  shall  be  delivered,  and  such 
delivery  must  be  made  at  the  appellant's  peril.  AYe  conclude,  there- 
fore, upon  the  death  of  a  lessee  of  a  safety  deposit  box  or  safe  the  con- 
tents of  such  box  or  safe  are  in  the  possession  and  control  of  the  appel- 
lant, and  the  same  duty  rests  upon  it  as  rests  upon  every  other  bailee 
who  finds  himself  in  the  possession  of  property  that  belongs  to  a  bailor 
who  has  died  during  the  existence  of  the  bailment,  —  that  is,  to  deliver 
the  bailment  to  the  party  or  parties  upon  whom  the  law  casts  the  title, 
with  the  right  of  possession.  [A  portion  of  the  opinion  relating  to  the 
constitutionality  of  the  statute  is  omitted.] 

Decree  affirmed. 


WAMSER  i'.   BROWNING. 
187  N.  Y.  87 ;   79  N.  E.  R.  861 ;    10  L.  R.  A.  N.  S.  314.     1907. 

Haight,  J.  This  action  was  brought  to  recover  the  value  of  a  watch, 
chain,  and  cigar  cutter,  which  were  stolen  from  the  plaintiff  in  defend- 
ant's store.  The  defendant  is  a  corporation  engaged  in  conducting  the 
business  of  a  clothing  store  in  the  city  of  New  York. 

The  plaintiff,  in  company  with  one  Ernest  Mayer,  a  friend,  called 
at  the  defendant's  store  for  the  purpose  of  purchasing  a  garment,  and 
Went  to  Stumpf,  a  clerk  with  whom  they  were  acquainted,  and  asked 
for  a  vest.  Stumpf  was  then  engaged  in  waiting  upon  another  customer, 
but,  according  to  the  plaintiff's  testimony,  told  him  that  the  vests  were 
piled  up  on  a  table  some  distance  away  on  the  side  of  the  store,  pointing 
to  it ;  that  he  could  go  over  and  help  himself ;  that  he  could  select  a 
vest,  lay  his  clothing  on  an  adjoining  table  and  try  it  on,  and  that  he 
would  come  over  as  soon  as  he  could  get  through  with  the  customer 
that  he  was  attending.  The  plaintiff  thereupon  went  to  the  table, 
selected  a  vest,  took  off  his  coat  and  vest,  and  tried  the  new  one  on  in 
the  presence  of  his  friend  and  companion.  At  the  time  there  were  quite 
a  number  of  persons  in  the  store  examining  goods  and  the  clerks  were 
busy.  After  ten  or  fifteen  minutes  Stumpf  finished  with  the  customer 
upon  whom  he  was  attending  and  then  came  over  to  the  plaintiff.  The 
plaintiff  then  handed  to  him  the  vest  that  he  had  tried  on,  and  told  him 
to  do  it  up,  that  he  would  take  it,  and  turned  to  put  on  the  clothing  that 
he  had  laid  aside  upon  the  adjoining  table.  In  the  meantime  his 
companion  had  departed.  He  found  his  coat,  but  his  vest  was  missing, 
in  the  pockets  of  which  were  the  watch,  chain,  and  cigar  cutter.     Search 


POSSESSION    BY    BAILEE.  37 

was  immediately  made  by  the  plaintiff,  Stumpf  the  clerk,  and  others, 
but  it  could  not  be  found. 

The  Municipal  Court  rendered  judgment  for  the  plaintiff  for  the  value 
of  the  watch,  chain,  etc.,  and  this  judgment  was  affirmed  by  the  Appel- 
late Term  and  Appellate  Division. 

Upon  the  argument  of  this  case  in  this  court  the  question  was  dis- 
cussed by  counsel  as  to  whether  a  recovery  could  be  had  for  articles  of 
jewelry  which  were  in  the  pockets  of  the  stolen  garment,  the  contents 
of  the  pockets  not  having  been  disclosed  to  the  defendant  or  any  of  the 
clerks  in  its  employ,  but  under  the  view  taken  by  us  of  the  case  it  becomes 
unnecessary  to  determine  that  question.  In  the  case  of  Bunnell  v. 
Stern  (122  X.  Y.  539)  [10  L.  R.  A.  481,  19  Am.  St.  Rep.  519,  25  X.  E. 
910]  the  question  of  the  liability  of  proprietors  of  retail  stores  was  con- 
sidered in  this  court.  In  that  case  the  plaintiff  went  to  a  store  for  the 
purpose  of  purchasing  a  wrap.  She  was  attended  by  a  saleswoman  and 
had  selected  a  garment  and  then  took  off  her  cloak  in  the  presence  of 
the  saleswoman  and  tried  on  the  wrap.  She  laid  it  upon  a  counter  in 
presence  of  the  saleswoman  who  was  attending  upon  her  and  in  front  of 
another  saleswoman  who  saw  her  lay  it  down.  She  then  tried  on  the 
wrap  and  in  the  course  of  four  or  five  minutes  turned  to  get  her  cloak 
but  found  that  it  had  been  stolen  in  the  meantime.  In  that  case  it  was 
held  that  the  defendant  was  guilty  of  negligence  and  was  liable  for  the 
loss ;  that  it  was  the  duty  of  those  conducting  a  retail  store  to  exercise 
reasonable  care  with  reference  to  the  property  of  their  customers  which 
is  laid  aside  temporarily  upon  the  invitation  of  the  dealer  and  with  his 
knowledge  in  order  to  examine  an  article  or  determine  whether  it  will 
fit. 

The  question  now  arises  as  to  whether  the  plaintiff's  claim  is  brought 
within  the  rule  of  that  case.  We  think  it  is  not.  As  we  have  seen,  the 
plaintiff  went  to  the  clerk  Stumpf.  Stumpf  was  engaged  with  another 
customer  and  so  told  him.  He,  however,  pointed  to  a  table  upon 
which  the  vests  were  piled,  and  told  the  plaintiff  that  he  could  go  over 
there  and  wait  upon  himself.  The  plaintiff  did  go  to  the  table  desig- 
nated, in  company  with  his  companion,  and  together  they  •  selected  a 
vest.  The  plaintiff  then  laid  his  coat  and  vest  upon  an  adjoining  table 
and  tried  on  the  vest  selected.  At  that  time  he  knew  that  Stumpf  was 
occupied  with  another  customer  some  distance  away  and  was  not 
there  to  personally  watch  and  care  for  the  garments  laid  aside.  Xo 
other  clerk  was  in  the  immediate  vicinity  to  watch  the  clothing.  The 
plaintiff  knew  of  the  contents  of  the  pockets  of  his  vest  that  he  laid 
upon  the  table,  and  yet  with  nothing  to  occupy  his  attention  other  than 
the  trying  on  of  a  vest,  his  vest  and  its  contents  were  permitted  to  be 
stolen  almost  in  front  of  his  own  eyes  and  within  six  feet  from  the  place 
where  he  stood.  Had  Stumpf,  the  clerk,  been  present  attending  upon 
him,  and  the  clothing  had  been  laid  aside  by  his  invitation  before  his 
eyes  so  that  he  had  an  opportunity  to  watch  and  care  for  it,  a  different 


38  ORDINARY    BAILMENTS. 

question  would  have  been  presented.  We,  therefore,  are  of  the  opinion 
that  the  loss  occurred  through  the  negligence  of  the  plaintiff  and  that 
the  judgments  should  be  reversed  and  a  new  trial  granted,  with  costs 
to  abide  event. 

Judgments  reversed,  etc. 


3.   CONVERSION. 

FLETCHER  v.   FLETCHER. 

7  N.  H.  452;   28  Am.  D.  359.     1835. 

This  is  an  action  of  trover  for  four  promissory  notes.  .  .  . 

Richardson,  C.  J.  In  trover,  the  conversion  is  the  very  gist  of  the 
action,  and  the  question  in  this  case  is,  whether  the  facts  stated  show  a 
conversion. 

Where  there  is  a  tortious  taking  of  goods,  this  is  in  law  a  conversion. 
But  when  the  goods  came  lawfully  into  the  hands  of  the  defendant,  as 
by  finding,  or  by  delivery  of  the  owner,  then  in  order  to  maintain  trover, 
some  tortious  act  subsequently  done,  and  amounting  to  a  conversion, 
must  be  shown. 

In  general,  a  demand  of  the  goods  by  the  plaintiff,  and  a  refusal  by 
the  defendant  to  deliver  them,  is  proof  of  a  conversion. 

But  to  this  rule  there  are  exceptions.  Thus,  where  the  refusal  to 
deliver  the  goods  on  the  demand  may  under  the  circumstances  be  con- 
sidered only  as  a  result  of  a  reasonable  hesitation  in  a  doubtful  matter, 
it  is  not  evidence  of  a  conversion.     Robinson  v.  Burleigh,  5  N.  H.  225. 

We  are  of  opinion  that  this  case  comes  within  the  exception ;  and, 
that  the  refusal  of  the  defendant  to  deliver  the  notes  was  not,  under 
the  circumstances,  evidence  of  a  conversion.1 

It  is  true,  that  the  notes  in  the  hands  of  the  defendant  could  not 
be  considered  as  money,  goods,  chattels,  rights,  or  credits,  within  the 
meaning  of  the  act  directing  the  proceedings  against  the  trustees  of 
debtors.  The  N.  H.  I.  F.  Company  v.  Piatt,  5  X.  H.  193.  But  whether 
they  could  be  so  considered  was  a  question  which  he  was  not  bound 
to  decide  at  his  peril.  And  we  are  of  opinion  that  he  had  a  right  to 
retain  the  notes  until  that  question  was  settled  by  the  proper  tribunal, 
or  an  indemnity  tendered  to  him  to  save  him  harmless  from  the  trusted 
process.     It  was  so  held  in  the  case  just  cited  from  5  N.  H.  193. 

We  are,  therefore,  of  opinion  that  there  must  be 

Judgment  for  the  defendant. 

1  That  a  conditional  refusal  is  not  evidence  of  conversion  see  Dent  v.  Chiles,  5 
Stew.  &  Por.  (Ala.)  383,   26  Am.  D.  350  (1832),  reviewing  the  English  cases. 


.     CONVERSION.  39 

WAY  .v.   DAVIDSON. 
12  Gray  (Mass.)  465  ;   74  Am.  D.  604.     1859. 

Action  of  tort  for  the  conversion  of  a  promissory  note  for  $1000 
dated  June  28,  1856  made  by  W.  B.  Davenport  to  the  defendant  and 
by  him  indorsed  to  the  plaintiff  [as  collateral  security]. 

Metcalf,  J.  A  pawnee  has  a  special  property  in  the  thing  pawned, 
and  can  maintain  an  action  for  the  conversion  or  injury  of  it  by  a 
third  person :  2  Saund.  47  e,  note.  3  Steph.  N.  P.  2668.  2  Kent's 
Comm.  (6th  ed.),  585.  He  can  also  maintain  replevin  against  the 
pawnor  himself  for  a  wrongful  taking  by  him  of  the  thing  pawned, 
Gibson  v.  Boyd,  1  Kerr  (N.  B.),  150  ;  or  trover  for  a  wrongful  detention 
thereof  by  him,  though  it  may  have  come  rightfully  into  his  hands  by 
the  pawnee's  consent.  Story  on  Bailm.,  §  299.  Edwards  on  Bailm., 
£27.  In  Hays  v.  Riddle,  1  Sandf.  248,  the  pawnee  of  a  bond  delivered 
it  to  the  pawnor  for  the  purpose  of  his  exchanging  it  for  stock  which 
was  to  be  returned  on  the  next  day  to  the  pawnee,  .as  a  substituted 
security.  The  pawnor  converted  the  bond  to  his  own  use,  and  the  pawnee 
maintained  trover  against  him  for  the  conversion.  That  case  is  not 
distinguishable  from  this. 

The  plaintiff,  in  this  case,  was  pawnee  of  the  note  for  the  conversion 
of  which  this  action  is  brought.  He  delivered  it  to  the  defendant  (the 
pawnor)  for  a  special  purpose,  on  a  promise  by  him  to  return  it.  The 
defendant  has  broken  that  promise.  And  if  the  plaintiff  has  demanded 
of  him  a  return  of  the  note,  and  he  has  refused  to  return  it,  such  demand 
and  refusal  are  evidence  of  a  conversion,  prima  facie  sufficient  to  support 
this  action. 

It  is  not  to  be  inferred  from  this  decision  that  the  plaintiff  could 
maintain  trover  against  a  third  person  to  whom  the  defendant  might 
have  transferred  the  note  after  receiving  it  from  the  plaintiff.  Boden- 
hammer  v.  Newsom,  5  Jones  L.  (N.  C.)  107  [69  Am.  Dec.  775]. 

Exceptions  sustained. 


PULLIAM  v.   BURLINGAME. 

81  Mo.  Ill ;   51  Am.  R.  229.     1883. 

Martin,  C.  The  plaintiff  brought  an  action  of  replevin  in  the  Cir- 
cuit Court  for  the  recovery  of  two  mules,  alleging  that  he  was  "the 
owner  of,  and  entitled  to  the  immediate  possession  of"  the  same.  The 
defendant  in  answer  made  a  general  denial  of  the  facts  alleged  in  the 
petition.  The  case  was  tried  by  the  court,  a  jury  being  waived  by 
the  parties. 


40  ORDINARY   BAILMENTS. 

Plaintiff  offered  testimony  -tending  to  prove  that  he  was  the  owner 
and  in  possession  of  the  mules  in  controversy;  that  about  the  month 
of  February,  1880,  defendant  borrowed  said  mules  from  plaintiff,  but 
said  nothing  then  about  his  wife's  interest  in  or  claim  to  same.  That 
defendant  held  said  mules,  until  they  were  taken  out  of  his  possession 
under  the  writ  in  this  cause. 

The  defendant  then  offered,  and  the  court  heard  testimony  tending 
to  show  that  Martha  E.  Burlingame  was  the  sister  of  plaintiff,  and  wife 
of  defendant ;  that  she  owned  jointly  with  plaintiff  an  undivided  half 
interest  in  said  mules  at  the  time  they  were  borrowed  by  her  husband, 
and  also  at  the  time  they  were  taken  from  defendant  under  the  writ 
aforesaid.  Defendant  also  introduced  evidence  showing  that  he  was 
in  possession  of  said  mules  at  the  time  they  were  replevied  in  this 
cause,  as  the  agent  of  his  wife,  that  he  was  simply  holding  the  same 
with  and  for  his  wife,  by  reason  of  her  half  interest  aforesaid.  This 
was  all  the  testimony  offered. 

[There  was  a  judgment  for  the  plaintiff.  What  was  said  on  a  ques- 
tion of  pleading,  is  omitted.] 

The  next  inquiry  is,  whether  the  defendant  could  make  this  defence 
of  paramount  title  in  his  wife,  in  face  of  the  contract  of  bailment  by 
which  he  acquired  possession  of  the  mules. 

The  admitted  evidence  in  the  case  is,  that  he  borrowed  them  from 
the  plaintiff,  and  that  at  the  time  he  so  borrowed  and  received  them, 
he  made  no  mention  of  any  claim  in  favour  of  himself  or  his  wife.  I  have 
examined  this  question  with  a  scrutiny  which  has  not  been  confined  to 
the  briefs  of  counsel,  and  I  am  unable  to  reach  any  other  conclusion, 
than  that  the  defendant  is  estopped  from  making  the  defence  by  reason 
of  the  contract  under  which  he  acquired  possession  of  the  property  in 
dispute  from  the  plaintiff.  In  borrowing  the  mules  he  became  a  bailee 
of  them  like  any  other  borrower.  There  being  no  time  fixed  for  a  ter- 
mination of  the  bailment,  that  time  could  be  indicated  at  any  moment 
by  the  bailor.  It  was  determinable  at  his  option,  and  when  so  termi- 
nated, it  was  the  duty  of  the  bailee  to  return  the  property  bailed  to  the 
bailor.  The  contract  of  bailment  necessarily  admits  the  right  of  prop- 
erty in  the  bailor,  and  the  obligation  to  return  it  to  him  at  the  termina- 
tion of  the  term  of  bailment.  In  other  words,  a  bailee,  when  he  receives 
the  property  by  virtue  of  the  bailment,  legally  admits  the  right  of  the 
bailor  to  make  the  contract  of  bailment.  After  this  subservient  rela- 
tion of  the  defendant  to  the  plaintiff  in  respect  to  the  property  was 
established,  the  law  forbids  him  to  dispute  the  title  of  plaintiff.  The 
relation  is  analogous  to  that  which  exists  between  landlord  and  tenant, 
a  relation  which  prevents  the  tenant  from  setting  up  against  his  land- 
lord, either  an  outstanding  or  self-acquired  adverse  title ;  and  from 
attorning  to  a  stranger  without  the  consent  of  his  landlord,  or  in  pur- 
suance of  a  judgment  or  sale  under  execution  or  deed  of  trust,  or  forfeit- 
ure under  mortgage.     Stagg  v.  Eureka  Tanning,  &c,  Co.,  56  Mo.  317  ; 


CONVERSION.  41 

R.  S.  1879,  §  3080 ;  McCartney  v.  Auer,  50  Mo.  395.  This  rule  does 
not  prevent  the  tenant  from  shewing  that  the  landlord  has  parted  with 
his  title,  for  such  fact  would  not  be  inconsistent  with  the  title  admitted 
by  the  demise.     Higgins  v.  Turner,  61  Mo.  249. 

In  pursuing  the  analogy  of  these  principles  in  the  law  of  real  estate, 
Mr.  Edwards,  in  his  work  on  Bailment,  says  :  "The  law  always  aids  the 
true  owner  to  recover  his  property ;  and  it  is  a  general  rule  that  the 
bailee  cannot  dispute  the  title  of  his  bailor.  When  therefore  the  bailee 
is  applied  to  for  the  property  by  a  third  party  claiming  title,  his  prudent 
course  is,  to  leave  the  claimant  to  his  action,  and  at  once  notify  his 
bailor  of  the  suit ;  he  is  not  obliged  to  bear  the  burden  of  a  litigation ; 
and  it  is  not  safe  for  him  to  surrender  the  property  on  demand.  For 
nothing  will  excuse  a  bailee  from  the  duty  to  restore  the  property  to 
his  bailor,  except  he  show  that  it  was  taken  from  him  by  due  process 
of  law,  or  by  a  person  having  the  paramount  title,  or  that  the  title  of 
his  bailor  has  terminated."  Edwards  on  Bailments  (2d  ed.),  §  73  ; 
Welles  v.  Thornton,  45  Barb.  390 ;  Bates  v.  Stanton,  1  Duer,  79  ;  Blivin 
v.  R.  R.  Co.,  36  N.  Y.  403  [736] ;  Burton  v.  Wilkinson,  18  Vt.  186 
[46  Am.  Dec.  145] ;  Aubery  v.  Fiske,  36  N.  Y.  47 ;  McKay  v.  Draper, 
27  N.  Y.  256 ;  Sinclair  v.  Murphy,  14  Mich.  392 ;  Osgood  v.  Nichols, 
5  Gray,  420 ;   The  Idaho,  93  U.  S.  575  [690]. 

Mr.  Bigelow,  in  his  work  on  Estoppel,  says  :  "  The  relation  between 
bailor  and  bailee  is  analogous  to  that  of  landlord  and  tenant.  Until 
something  equivalent  to  title  paramount  has  been  asserted  against  a 
bailee,  he  will  be  estopped  to  deny  the  title  of  his  bailor  to  the  goods 
entrusted  to  him."  Bigelow  on  Estoppel  (3d  ed.),  430.  The  principle 
upon  which  he  can  relieve  himself  from  the  obligation  to  return  the 
goods  is  ably  discussed  by  Justice  Strong  in  the  "Idaho"  case,  93  U.  S. 
575  [690],  wherein  he  announces  the  doctrine,  that  an  actual  delivery  of 
the  goods  by  the  bailee  to  the  true  owner,  upon  his  demand  for  them, 
will  constitute  a  valid  defence  against  the  claim  of  the  bailor.  The 
same  principle  was  applied  by  this  court  in  the  case  of  Matheny  v. 
Mason,  73  Mo.  677  [39  Am.  Rep.  541],  which  was  a  suit  between  vendor 
and  vendee  for  the  consideration  money  of  the  goods  sold.  The  sub- 
ject was  ably  and  elaborately  considered  by  Judge  Ray,  who  rendered 
the  opinion  of  the  court.  The  vendor  was  suing  for  the  price  of  corn 
sold,  with  implied  warranty  of  title,  and  the  vendee,  in  his  answer,  after 
admitting  the  sale  and  consideration  price,  pleaded  that  at  the  time  of 
the  sale,  he  supposed  the  vendor  was  the  owner  of  the  corn  ;  that  after 
the  sale  and  delivery,  he  learned  that  it  belonged  to  a  third  party, 
named  in  the  plea;  that  said  third  party  demanded  of  him  payment 
for  the  same,  and  threatened  suit  if  he  refused ;  that,  thereupon,  he 
paid  the  full  value  thereof  to  said  claimant,  who  was  the  true  owner. 
It  was  also  added,  that  the  vendor  was  insolvent.  This  plea  was  held 
sufficient  to  rebut  and  overthrow  the  estoppel  imposed  on  a  vendee  from 
denying  the  title  of  his  vendor,  when  called  upon  for  the  purchase- 


42  ORDINARY   BAILMENTS, 

money.  In  the  opinion  significance  was  given  to  the  facts,  that  the 
paramount  title  came  first  to  the  knowledge  of  the  vendee  after  the  sale ; 
that  said  title  was  asserted  by  threats  of  suit;  and  that  the  money 
was  actually  paid  over  to  the  claimant  before  suit  by  the  vendor.  Now, 
if  it  requires  such  a  defence  to  relieve  the  estoppel  imposed  upon  a 
vendee,  a  fortiori  the  same,  or  an  equivalent,  will  be  necessary  in  the 
case  of  a  bailee.  It  has  long  been  settled  in  this  State  that  the  relation 
of  a  vendor  and  vendee,  as  to  real  estate,  is  antagonistic,  and  that  the 
vendee  is  not  estopped  from  setting  up  an  outstanding  or  after-acquired 
title.  Wilcoxon  v.  Osborn,  77  Mo.  621.  The  estoppel  between  them 
is  recognised  only  in  respect  to  the  purchase  money.  In  a  suit  for  it, 
the  vendee  is  estopped  from  pleading  want  of  title  in  the  vendor,  as  long 
as  he  retains  possession  of  the  land.  Mitchell  v.  McMullen,  59  Mo. 
252  ;  Harvey  v.  Morris,  63  Mo.  475 ;  Wheeler  v.  Standley,  50  Mo.  509. 

The  relation  of  bailor  and  bailee  is  not  antagonistic  in  any  respect, 
or  at  any  time.  By  accepting  the  property  he  not  only  admits  the 
bailor's  title,  but  he  assumes,  with  respect  to  the  thing  bailed,  a  posi- 
tion of  trust  and  confidence,  which  continues  till  it  is  returned  or  law- 
fully accounted  for.  Measured  by  these  principles,  the  defendant's 
evidence  must  fail  to  excuse  him  from  the  obligation  to  return  the  bor- 
rowed property  found  in  his  possession  at  the  time  of  the  replevin.  It 
does  not  appear  that  his  wife,  as  paramount  claimant,  ever  asserted 
any  title  to  this  property.  Consequently  his  plea  that  he  holds  it  as 
agent  for  his  wife,  implies  that  this  is  his  voluntary  act,  and  was  not 
forced  upon  him  by  the  assertion  in  any  form  of  her  pretended  title. 
It  will  not  do  for  a  bailee  to  hunt  up  a  paramount  claimant,  and  then 
when  called  upon  by  the  bailor  for  the  property,  answer  that  he  is  now 
the  voluntary  bailee  of  such  claimant.  It  must  be  apparent  that  this 
would  enable  him  to  enjoy  the  property  by  pretending  to  hold  it  for 
another.  Justice  Strong  in  the  "  Idaho  "  case  remarks,  "  a  bailee  cannot 
avail  himself  of  the  title  of  a  third  person  (though  the  person  be  the 
true  owner)  for  the  purpose  of  keeping  the  property  for  himself,  nor  in 
any  case  where  he  has  not  yielded  to  the  paramount  title."  93  U.  S. 
575  [690]. 

The  evidence  in  this  case  shows  that  the  defendant,  at  the  time  of 
the  replevin,  was  in  actual  possession  of  the  mules  which  he  borrowed, 
and  that  his  plea  of  being  the  agent  or  bailee  of  a  paramount  owner 
rests  upon  his  voluntary  act  alone,  without  suit,  threat,  or  demand  of 
such  owner  or  claimant. 

Although  the  cases  in  which  the  doctrine  of  jus  tertii  is  defined  and 
enforced  are  somewhat  conflicting,  I  am  not  aware  of  any  well-con- 
sidered expression  which  goes  to  the  length  of  justifying  the  defence, 
as  it  appears  in  the  evidence  and  instructions  of  this  case. 

Accordingly  I  am  of  the  opinion  that  the  court  did  not  err  in  refus- 
ing it,  or  in  giving  the  one  asked  by  plaintiff.  The  judgment  should 
be  affirmed,  and  it  is  so  ordered. 


•    CONVERSION.  43 

JENSEN  v.  EAGLE  ORE  CO. 

47  Colo.  306 ;    107  Pae.  R.  259  ;   33  L.  R.  A.  N.  S.  681.     1910. 

Mr.  Justice  White  delivered  the  opinion  of  the  court :  — 

Jense,  the  plaintiff  in  error,  instituted  this  suit  against  the  Eagle  Ore 
Company,  to  recover  the  value  of  certain  ore,  and  the  sacks  in  which 
it  was  contained,  alleged  to  have  been  delivered  by  the  plaintiff  to  the 
defendant,  and  by  the  latter  wrongfully  converted  to  its  use. 

The  defendant  is  a  corporation  conducting  and  carrying  on  a  general 
ore  sampling  business,  and  buying  and  selling  ore. 

The  pleadings  admit,  or  the  undisputed  evidence  shows,  that  plain- 
tiff delivered  to  the  defendant  certain  sacks  of  the  value  of  $40.75, 
containing  ore  of  the  value  of  several  hundred  dollars,  under  an  agree- 
ment that  defendant  would  crush  and  sample  the  ore  and  deliver  said 
property  to  plaintiff  upon  demand,  unless  a  sale  thereof  to  the  defend- 
ant should  be  agreed  upon  between  said  parties  ;  that  no  sale  was  con- 
summated, and  that  plaintiff,  prior  to  the  bringing  of  the  suit,  made 
demand  on  defendant  for  the  possession  of  said  property,  with  which 
demand  defendant  refused  to  comply. 

The  defence  interposed  is,  that  plaintiff  was  never  at  any  time  the 
owner  of  the  ore,  or  any  part  thereof,  and  never  was  entitled  to  its 
possession  ;  that  his  possession  was  at  all  times  unlawful  and  fraudulent ; 
that  The  Cripple  Creek  District  Mine  Owners'  and  Operators'  Asso- 
ciation was  the  agent  of  the  owners  of  all  the  ore  and  entitled  to  the 
possession  thereof ;  that  said  association  asserted  its  right  of  ownership 
in  said  ore,  and  that  defendant  afterwards  purchased  it  from  said  asso- 
ciation and  thus  acquired  title  thereto.  The  affirmative  allegations 
of  the  answer  were  denied  by  the  replication.  The  lawful  existence  of 
said  mine  owners'  association,  and  its  power  to  act  in  the  premises, 
was  also  put  in  issue.  The  answer  in  no  wise  disclosed  the  particular 
owner  or  owners  of  the  ore  from  whom  the  said  association  was  the 
alleged  agent,  nor  did  the  evidence  adduced  give  light  thereon.  The 
Cripple  Creek  District  Mine  Owners'  and  Operators'  Association  was 
brought  into  existence  by  a  voluntary  agreement,  said  to  have  been 
entered  into  among  certain  mine  owners  and  operators  of  mines,  for  the 
purpose,  as  stated  in  said  agreement,  of  forming  "  a  co-operative  alliance 
and  association  for  the  protection  of  the  mining  interests  of  the  said 
district,  and  the  promotion  of  the  welfare  and  prosperity  of  the  mining 
industry."  The  articles  of  agreement  of  the  mine  owners'  association 
were  offered  in  evidence,  and,  over  objections  interposed,  received. 
No  proof  was  adduced  as  to  the  authenticity  of  the  signatures  appear- 
ing thereto,  except  solely  as  to  that  of  this  defendant. 

By  agreement  the  cause  was  tried  to  the  court  without  the  interven- 
tion of  a  jury.  The  contract  of  bailment,  and  the  possession  of  the 
property  thereunder,  having  been  admitted,  the  plaintiff  presented  his 


44  ORDINARY   BAILMENTS. 

evidence  of  value  of  the  property  in  question,  and  rested  the  case. 
Thereupon  the  defendant  undertook  to  establish  its  affirmative  defence, 
that  The  Cripple  Creek  District  Mine  Owners'  and  Operators'  Asso- 
ciation was  the  agent  of  the  owner  of  said  property,  and  entitled  to  its 
possession,  and  had  asserted  its  right  of  ownership  thereto.  The  trial 
court,  however,  over  plaintiff's  objections  and  exceptions,  declared  and 
held,  that  it  was  only  necessary  for  the  defendant  to  establish  that  the 
possession  of  the  ore  by  plaintiff  was  wrongful  and  unlawful ;  that  it 
was  wholly  immaterial  to  whom  the  ore  belonged,  or  as  to  the  agency  of 
said  association;  that  if  the  evidence  convinced  the  court  that  the  ore 
was  stolen,  though  it  failed  to  disclose  from  whom,  by  whom,  or  when, 
and  that  plaintiff  by  any  reasonable  inquiry  could  have  ascertained  be- 
fore he  purchased  it,  that  it  was  stolen,  the  plaintiff  could  not  recover. 

Upon  this  theory  the  court  proceeded,  and  so  limited  the  inquiry 
and  at  the  close  of  the  evidence  dismissed  the  complaint.  A  motion 
for  a  new  trial  was  filed,  argued,  and  overruled,  and  judgment  entered 
in  favour  of  defendant  for  costs,  to  review  which,  plaintiff  appeals. 

[A  portion  of  the  opinion  relating  to  jurisdiction  is  omitted.] 

We  are  clearly  of  the  opinion  that  the  trial  court  adopted  an  erro- 
neous view  of  the  law,  and  thereby  committed  reversible  error.  The 
general  rule  is,  that  the  bailee  can  discharge  his  liability  to  the  bailor 
only  by  returning  the  identical  thing  which  he  has  received,  or  its  pro- 
ceeds, under  the  terms  of  the  bailment  ;  but  to  this  rule  there  are  cer- 
tain exceptions.  The  bailee  may  show  that  the  property  has  been  taken 
from  him  by  process  of  law,  or  by  a  person  having  a  paramount  title, 
or  perhaps  excuse  his  default  in  some  other  way.  But  lie  cannot  sel 
up  jus  tertii  against  his  bailor,  however  tortuous  the  p  ion  of  ! 

latter,  unless  the  true  owner  has  claimed  the  property  and  the  bailee 
has  yielded  to  the  claim.  Story  on  Bailm.  §§  450,  582  ;  Schouler  on 
Bailm.,  §  494. 

The  correct  rule,  stated  in  Current  Law,  vol.  9,  pp.  325, 320,  is,  that  :  — 
"A  bailee  cannot  set  up  title  in  himself,  but  may,  if  goods  are  claimed  by 
third  person,  refuse,  at  his  peril,  to  deliver  to  bailor,  and  may  protect 
himself  from  liability  by  showing  delivery  on  demand  to  true  owner, 
but  cannot  by  mere  assertion  of  right  in  another  avoid  liability  for  con- 
version by  himself."  The  following  authorities  are  analogous  in  prin- 
ciple and  are  cited  in  support  of  the  rule:  Atl.  cv.  B.  \ly.  Co.  v.  Spires 
[1  Ga.  App.  22]  57  S.  E.  973 ;  Barker  v.  Lewis  S.  &  T.  Co.,  79  ( lonn.  342 
[65  Atl.  143,118  Am. St.  R.  1411;  Klein  D.Patterson,  30  La.  Sup. Ct. 495, 
500 ;   Riddle  v.  Blair  [14S  Ala.  461  ],  42  So.  500. 

In  the  "Idaho"  case,  93  U.  S.  575,  581  [6901,  the  rule  stated  and  ap- 
proved is,  "That  a  bailee  cannot  avail  himself  of  the  title  of  a  third 
person  (though  that  person  be  the  true  owner)  for  the  purpose  of  keep- 
ing the  property  for  himself,  nor  in  any  case  where  he  has  not  yielded 
to  the  paramount  title.  If  he  could,  he  might  keep  for  himself  goods 
deposited  with  him  without  any  pretense  of  ownership.     But  if  lie  has 


CONVERSION.  45 

performed  his  legal  duty  by  delivering  the  property  to  its  true  pro- 
prietor, at  his  demand,  he  is  not  answerable  to  the  bailor." 

"The  relation  between  bailor  and  bailee,  and  that  of  depositor  and 
depositary  of  money,  is  analogous  to  that  of  landlord  and  tenant.  Until 
something  equivalent  to  title  paramount  has  been  asserted  against  the 
bailee  or  depositary,  he  will  be  estopped  to  deny  the  title  of  this  bailor 
to  the  goods  intrusted  to  him."  —  Bigelow  on  Estoppel  (4th  ed.), 
490. 

Public  policy  and  reason  both  combine  to  require  that  a  bailee  shall 
never  be  permitted  to  controvert  the  bailor's  title,  or  set  up  against  him 
a  title  acquired  by  himself  during  the  bailment,  which  is  hostile  to,  or 
inconsistent  in  character  with,  that  which  he  acknowledged  in  accepting 
the  bailment.  This  rule,  however,  does  not  preclude  the  bailee  plead- 
ing and  showing  that  he  has  been  dispossessed  by  superior  right,  or  that 
he  holds  the  thing  bailed,  subject  to  such  known  right  then  asserted, 
and  not  b}'  him  known  prior  to  the  bailment. — 2  Am.  &  Eng.  Enc.  of 
Law,  62. 

Between  the  plaintiff  and  the  defendant,  the  property  was  the  plain- 
tiff's. By  accepting  it  under  the  contract  of  bailment  the  defendant 
not  only  admitted  the  plaintiff's  title  thereto,  but  also  assumed  with 
respect  to  that  property,  a  position  of  trust  and  confidence  which  con- 
tinues until  the  property  is  returned  or  lawfully  accounted  for.  It  was 
incumbent  upon  defendant,  in  order  to  relieve  itself  of  the  redelivery  of 
the  property  or  its  proceeds  to  the  plaintiff,  to  establish  by  a  preponder- 
ance of  the  evidence  that  it  actually  delivered,  the  property  to  the  true 
owner  on  his  demand.  The  defendant  could  not  lawfully  account  for 
the  property,  and  relieve  itself  of  its  contractual  obligation  to  the 
plaintiff,  by  showing  that  the  property  had  been,  before  plaintiff  secured 
possession  thereof,  stolen  at  some  unknown  time,  by  an  unknown  thief, 
from  an  unknown  and  unascertained  owner,  and  that  the  bailee  by  rea- 
sonable inquiry  could  have  ascertained  such  facts.  It  would  be  a  se- 
rious reproach  to  the  administration  of  justice  if  our  courts  should 
adopt  a  rule  that  permitted  one  to  acquire  possession  of  property  from 
another  under  a  specific  contract  to  return  it,  and  then  subsequently 
repudiate  that  contract,  and  retain  possession  of  the  property,  under 
a  claim  of  ownership,  acquired  from  one  not  specifically  shown  to  have 
had  title  thereto.  Such  a  procedure  would  have  close  resemblance  to 
theft  by  sanction  of  law  and  cannot  be  approved.  If  the  bailor  has  no 
title,  the  bailee  can  have  none ;  for  the  bailor  can  give  no  better  than 
he  has.  Still  without  absolute  title  the  bailor  may  have  the  right  of 
possession,  and  the  bailee  certainly  cannot  dispute  that  right,  unless 
by  virtue  of  a  specific  title  asserted,  paramount  to  that  of  the  bailor. 
—  Bartels  v.  Arms,  3  Colo.  72,  75;  Barker  v.  Lewis  S.  &  T.  Co.,  supra. 

In  Armory  v.  Delamirie,  1  Strange  504  [20],  it  is  held:  That  the 
finder  of  a  jewel,  though  he  does  not  by  such  finding  acquire  an  absolute 
property  or  ownership,  yet  he  has  such  a  property  as  will  enable  him  to 


46  ORDINARY    BAILMENTS. 

keep  it  against  all  but  the  rightful  owner,  and  may  recover  damages 
from  a  bailee  for  its  conversion. 

And  in  Anderson  v.  Gouldberg,  [51  Minn.  294,  296]  53  N.  W.  636,  637, 
it  is  said :  "One  who  has  acquired  the  possession  of  property,  whether 
by  finding,  bailment,  or  by  mere  tort,  has  a  right  to  retain  that  posses- 
sion as  against  a  mere  wrongdoer  who  is  a  stranger  to  the  property. 
Any  other  rule  would  lead  to  an  endless  series  of  unlawful  seizures  and 
reprisals  in  every  case  where  property  had  once  passed  out  of  the  pos- 
session of  the  rightful  owner." 

From  what  has  been  said,  it  necessarily  follows,  that  the  judgment 
must  be,  and  accordingly  is,  reversed,  and  the  cause  remanded. 

Reversed  and  remanded. 


JENKINS  v.   BACON. 
Ill  Mass.  373;   15  Am.  R.  33.     1893. 

[Action  on  contract,  with  counts  in  tort,  to  recover  the  value  of  a 
United  States  bond  for  $500,  which  plaintiff  had  left  with  defendant 
for  gratuitous  safekeeping  and  which  on  demand  defendant  refused  to 
deliver  over.  From  the  evidence  it  appeared  that  defendant  was 
authorised  to  send  the  coupons  as  they  matured  to  plaintiff's  wife,  but 
that,  after  sending  one  coupon  on  its  maturity,  he  directed  his  book- 
keeper to  send  the  bond  itself  to  plaintiff's  wife,  and  that  the  book- 
keeper sent  it  by  mail,  and  it  was  lost.  There  was  trial  to  a  jury  and 
verdict  for  plaintiff.     Defendant  alleged  exceptions.] 

Ames,  J.  In  that  class  of  bailments  described  in  text-books  under 
the  title  of  "deposits,"  the  obligation  of  the  bailee  is  that  he  will  keep 
the  thing  deposited  with  reasonable  care,  and  that  he  will  upon  request 
restore  it  to  the  depositor,  or  otherwise  deliver  it  according  to  the  original 
trust.  According  to  the  well-settled  rule,  the  bailee  who  acts  without 
compensation  can  only  be  held  responsible  for  bad  faith,  or  gross  negli- 
gence, if  the  deposit  should  be  lost  or  injured  while  in  his  custody. 
Whitney  v.  Lee,  8  Mete.  91 ;  Foster  v.  Essex  Bank,  17  Mass.  479.  Ex- 
cept as  to  the  degree  of  diligence  and  care  required  of  him,  his  general 
obligation  is  the  same  as  if  he  had  assumed  the  trust  upon  the  promise 
or  with  the  expectation  of  reward.  If  he  should  deliver  the  property 
to  a  person  not  authorised  to  receive  it,  he  would  make  himself  respon- 
sible for  its  value,  without  regard  to  the  question  of  due  care  or  the 
degree  of  negligence.  Hall  v.  Boston  &  Worcester  Railroad  Co.,  14 
Allen,  439  ;  Lichtenhein  v.  Boston  &  Providence  Railroad  Co.,  11  Cush. 
70 ;  Cass  v.  Boston  &  Lowell  Railroad  Co.,  14  Allen,  448,  453  ;  2  Kent's 
Com.  (6th  ed.),  568.     If  the  case  of  Heugh  v.  London  &  North  Western 


CONVERSION.  47 

Railway  Co.,  L.  R.  5  Ex.  51,  can  be  said  to  present  a  case  of  delivery 
to  the  wrong  person  (which  is  open  to  considerable  doubt),  the  doctrine 
there  asserted  is  directly  opposed  to  the  above  cited  decisions  of  this 
court.  Good  faith  requires,  even  in  the  case  of  a  gratuitous  bailment, 
that  the  bailee  should  take  reasonable  care  of  the  deposit ;  and  what  is 
reasonable  care  must  materially  depend  upon  the  nature,  value,  and 
quality  of  the  thing,  the  circumstances  under  which  it  is  deposited, 
and  sometimes  upon  the  character  and  confidence  and  particular  deal- 
ings of  the  parties.     Story  on  Bailments,  §  62. 

In  this  instance,  the  transaction  was  more  than  a  simple  deposit  for 
safekeeping.  /The  plaintiff  claimed,  and  there  was  evidence,  which 
was  not  contradicted  or  rebutted,  to  the  effect  that  the  defendant  was 
to  collect  the  coupons  as  they  became  due,  for  the  benefit  of  the  plain- 
tiff's wife.  The  bond  was  delivered  to  the  defendant  in  trust;  he 
accepted  the  trust  and  entered  upon  its  performance.  "  The  owner's 
trusting  him  with  the  goods  is  a  sufficient  consideration  to  oblige  him 
to  a  careful  management."  Lord  Holt,  C.  J.,  in  Coggs  v.  Bernard,  2 
Ld.  Raym.  909  [4].  Notwithstanding  the  gratuitous  character  of 
the  bailment,  "  it  is  held  that  the  bailor  has  a  remedy,  in  an  action  ex 
contractu,  if  the  bailee  do  not  perform  his  undertaking,  and  that  there 
is  a  sufficient  consideration  to  support  a  contract."  Mete.  Con.  164, 
and  cases  there  cited.  In  Robinson  v.  Threadgill,  13  Ired.  39,  it  was 
held  that  if  one  undertakes  to  collect  notes  for  another,  without  mention- 
ing any  consideration  and  takes  the  notes  for  that  purpose,  there  is  a 
sufficient  legal  consideration  for  the  engagement.  A  mere  agreement 
to  undertake  a  trust  in  futuro  without  compensation  is  not  oblig- 
atory ;  but  when  once  undertaken  and  the  trust  actually  entered  upon, 
the  bailee  is  bound  to  perform  it  according  to  the  terms  of  his  agree- 
ment. Rutgers  v.  Lucet,  2  Johns.  Cas.  92 ;  Smedes  v.  Utica  Bank,  20 
Johns,  373,  379.  Upon  this  point  the  authorities  are  numerous.  They 
are  fully  cited  in  1  Parsons  Cont.  (5th  ed.),  447 ;  and  2  id.  99 ;  and  in 
Chitty  Cont.  (10th  Am.  ed.),  38-40,  notes  n  and  u.  And  it  is  well 
settled  that  the  remedy  is  not  confined  to  an  action  of  tort,  but  that 
contract  will  lie. 

The  substance  of  the  defendant's  contract  and  duty  was  to  keep  the 
deposit  with  reasonable  care,  and  to  restore  it  when  properly  called 
upon.  We  do  not  interpret  this  contract  as  restricting  him  to  one  place 
or  uniform  mode  of  keeping.  All  that  could  reasonably  be  expected 
of  him  was  that  he  should  keep  it  with  his  own  papers,  and  in  the  same 
manner  and  with  the  same  degree  of  care,  as  a  man  of  ordinary  prudence 
would  exercise  in  the  custody  of  papers  of  his  own  of  like  character. 
Circumstances  might  occur  which  would  render  it  reasonable  and  proper 
that  he  should  change  the  place  of  deposit.  If  his  own  place  of  business 
should  be  destroyed  by  fire,  or  if,  from  change  of  residence  or  tempo- 
rary absence  from  the  country,  or  for  other  sufficient  reason,  it  should 
become  inconvenient  or  unsafe  that  he  should  retain  the  manual  posses- 


48  ORDINARY    BAILMENTS. 

sion  of  the  bond,  he  would  undoubtedly  be  at  liberty  to  deposit  it  in 
any  other  place  or  mode,  in  which  he,  with  reasonable  prudence,  might 
deposit  his  own  property  of  the  like  description.  But,  as  between  the 
original  depositor  and  himself,  he  would  continue  to  be  the  lawful  and 
responsible  custodian,  and  bound  to  practise  that  degree  of  care  which 
the  law  requires  of  gratuitous  bailees.  The  complaint  against  him  is, 
not  that  he  kept  it  negligently,  or  lost  it  by  gross  carelessness,  but 
that  he  intentionally  disposed  of  it  in  a  manner  not  authorised  by  the 
terms  of  the  trust.  For  the  purposes  of  this  case,  it  is  wholly  imma- 
terial whether  the  post-office  furnishes  a  reasonably  safe  mode  of  trans- 
mission, in  the  case  of  valuable  papers  of  such  description,  or  not.  The 
question  of  due  diligence  or  gross  neglect,  in  our  opinion,  is  not  raised 
by  the  bill  of  exceptions. 

A  case  recently  decided  in  New  York  (Rowing  v.  Manly,  49  N.  Y. 
192  [S.  C,  10  Am.  Rep.  346])  is  in  its  leading  features  analogous  to  that 
now  before  us.  In  that  case  certain  bonds  had  been  left  with  the 
defendants  with  instructions  in  writing  not  to  deliver  them  to  any 
person  except  upon  the  written  order  of  the  plaintiff,  who  was  the  deposi- 
tor. The  bonds  were  subsequently  delivered  by  the  defendants  to  the 
plaintiff's  wife  upon  her  presentation  of  an  order  purporting  to  be  signed 
by  him,  which  was  in  fact  a  forgery.  The  defendants  were  held  ac- 
countable for  the  value  of  the  bonds,  not  on  the  ground  of  any  want  of 
due  and  reasonable  care,  but  because  they  had  disposed  of  them  in  a 
manner  not  authorised  by  the  contract.  The  fact  that  their  instruc- 
tions were  expressed  in  writing  could  add  nothing  to  the  duties  required 
of  them  by  their  contract.  They  were  held  liable  for  the  reason  that 
they  had  no  authority  to  do  what  the  defendant  in  this  case  attempted 
to  do ;  and  because  such  a  delivery  to  the  wife  was  a  violation  of  their 
trust. 

In  Steward  v.  Frazier,  5  Ala.  114,  the  defendant  had  received  money 
to  be  kept  for  the  plaintiff,  without  compensation.  No  instructions 
had  been  given  to  the  defendant  to  remit  the  money,  but  from  kindness 
and  the  best  intentions  he  undertook  to  remit  it  by  the  hands  of  a  per- 
son "reputed  to  be  an  honest  man."  The  money  was  lost,  and  the 
defendant  was  held  responsible,  on  the  ground  that  it  was  a  case  in 
which  the  plaintiff  was  exposed  to  a  risk  to  which  he  had  not  consented. 
The  court  says,  "the  law  would  be  the  same  if  the  public  mail  had  been 
resorted  to,  instead  of  a  private  conveyance."  They  add  that  the  ques- 
tion of  gross  negligence  in  the  transmission  of  the  money  does  not  arise, 
as  the  defendant  "had  no  authority  to  transmit,  in  any  mode,  either 
express  or  implied." 

As  we  have  already  remarked,  if  the  defendant  had  delivered  the 
bond  by  mistake  to  a  person  not  entitled  to  receive  it,  he  would  make 
himself  responsible,  without  regard  to  the  question  of  due  care,  or  degree 
of  negligence.  His  duty  was  to  keep  the  deposit ;  he  could  not  dispose 
of  it  without  the  express  or  implied  authority  of  the  depositor.     It  will 


.     CONVERSION.  49 

not  be  contended  that  the  case  shows  any  express  authority  for  sending 
it  by  mail  to  the  plaintiff's  wife,  and  certainly  none  can  be  implied 
from  the  circumstances.  In  so  doing,  he  subjected  the  plaintiff  to  a 
risk  which  he  had  not  contemplated,  and  did  an  act  not  authorised  by 
the  terms  of  his  trust.  It  was  left  to  the  jury  to  say  whether,  in  the 
words  of  the  presiding  judge,  it  was  "  a  disposition  of  the  bond  contrary 
to  the  original  understanding,"  whereby  the  defendant  lost  it. 

The  result  is  that  we  find  no  error  in  the  course  of  the  trial  in  this 
part  of  the  case. 

The  majority  of  the  court,  therefore,  concur  in  the  order. 

Exceptions  overruled. 

Morton,  J.,  delivered  a  dissenting  opinion. 


DOOLITTLE  v.   SHAW. 
92  Iowa,  348  ;   54  Am.  St.  R.  562.     1894. 

Kinne,  J.  Plaintiff's  cause  of  action  is  stated  in  two  counts.  The 
first  charges  that  on  September  1,  1892,  defendant  had  and  received 
from  the  plaintiff  a  pair  of  horses  and  buggy,  of  the  value  of  two  hundred 
and  fifty  dollars,  to  drive  from  Delhi,  Iowa,  to  Manchester,  Iowa; 
that  defendant  drove  said  horses  so  immoderately,  and  so  neglected 
their  care,  that  one  of  them  became  sick,  and  defendant,  knowing  said 
fact,  continued  to  drive  and  abuse  said  horse  until  his  death  ;  that  plain- 
tiffs were  damaged  in  the  sum  of  one  hundred  dollars.  In  a  second 
count,  plaintiffs  aver  that  they  paid  two  dollars,  at  defendant's  instance, 
to  have  the  horse  buried.  In  an  amendment  it  is  averred  that  the  team 
and  buggy  were  loaned  to  defendant  to  go  from  Delhi  to  Manchester 
and  return,  and  that  defendant,  after  driving  to  Manchester,  converted 
said  team  and  buggy  to  his  own  use,  and  failed  to  return  said  team  as 
received,  and  still  fails  to  return  one  of  said  horses,  which  horse  was 
worth  one  hundred  dollars,  from  which  they  pray  judgment.  Defend- 
ant denied  all  of  the  allegations  of  the  original  petition.  Afterward, 
in  an  amendment,  he  pleaded  that  the  contract  of  letting  and  hiring 
set  out  in  the  petition,  and  the  damage  growing  out  of  the  same,  and  all 
matters  set  out  in  the  amendment,  occurred  on  Sunday  and  no  right 
of  action  can  be  maintained  thereon.  There  was  a  trial  to  a  jury,  and 
a  verdict  for  plaintiffs. 

II.  On  Sunday,  September  4,  1892,  defendant  hired  of  plaintiffs  a 
team  of  horses  and  a  buggy  to  drive  from  Delhi  to  Manchester  and 
return.  After  arriving  at  Manchester,  he  drove  six  or  seven  miles  into 
the  country.  He  then  returned  to  Manchester,  where  he  let  one  Luke 
Connelly  drive  the  team  to  the  fair  ground  and  back,  after  which 


50  ORDINARY    BAILMENTS. 

defendant  and  Connelly  started  on  the  return  trip  to  Delhi,  and,  when 
about  midway  between  the  two  places,  one  of  the  horses  was  taken  sick 
and  died.  At  the  close  of  plaintiff's  testimony,  defendant  moved  for  a 
verdict,  which  motion  was  overruled. 

III.  The  Court  gave  the  jury  the  following  instruction  :  "9.  If  you 
find  from  the  evidence  that  the  team  was  hired  or  given  to  defendant 
only  for  the  purpose  of  driving  from  Delhi  to  Manchester,  and  that, 
being  so  hired,  defendant,  without  the  consent  of  plaintiffs,  drove  some 
miles  away  from  the  line  of  travel  between  said  towns,  to  a  place  not 
contemplated  by  the  contract  of  hire,  then  such  use  of  the  team  would 
be  a  conversion  of  the  same  by  the  defendant,  and  the  plaintiffs  might 
elect  to  recover  the  value  of  any  part  of  such  team  and  buggy  as  was  not 
returned  to  and  accepted  by  them  after  knowledge  of  such  conversion ; 
and  plaintiffs  would  have  a  right  to  recover,  if  you  find  such  to  be  the 
fact,  even  though  the  evidence  disclosed  that  the  contract  of  hire  by 
which  defendant  secured  possession  of  the  property  was  made  on 
Sunday."  The  instruction  lays  down  the  broad  rule  that  a  mere  diver- 
sion from  the  line  of  travel,  or  going  beyond  the  point  for  which  the 
horse  was  hired,  will,  without  more,  amount  to  a  conversion  of  the 
animal,  for  which  an  action  will  lie.  What  will  amount  to  a  conversion 
in  such  cases  is  the  question  we  must  determine. 

In  Spooner  v.  Manchester,  133  Mass.  270  [43  Am.  Rep.  514]  the  court 
defined  a  conversion  as  follows :  "  Conversion  is  based  upon  the  idea 
of  an  assumption  by  the  defendant  of  the  right  of  property,  or  a  right 
of  dominion  over  the  thing  converted,  which  casts  upon  him  all  the 
risks  of  an  owner ;  and  it  is,  therefore,  not  every  wrongful  intermiddling 
with,  or  wrongful  asportation,  or  wrongful  detention  of,  personal  prop- 
erty, that  amounts  to  a  conversion.  Acts  which  themselves  imply  an 
assertion  of  title  or  of  a  right  of  dominion  over  personal  property,  such 
as  a  sale,  letting,  or  destruction  of  it,  amount  to  a  conversion,  even 
though  the  defendant  may  have  honestly  mistaken  his  rights ;  but  acts 
which  do  not  themselves  imply  an  assertion  of  title,  or  of  a  right  of 
dominion  over  such  property,  will  not  sustain  an  action  of  trover  unless 
done  with  the  intention  to  deprive  the  owner  of  it  permanently  or  tem- 
porarily, or  unless  there  has  been  a  demand  for  the  property,  and  a 
neglect  or  refusal  to  deliver  it,  which  are  evidence  of  a  conversion." 
Evans  v.  Mason,  64  N.  H.  98,  5  Atl.  Rep.  766.  In  Story  on  Bailments 
(§  413a),  after  stating  the  rule  as  to  what  is  a  conversion  in  such  cases, 
it  is  said  :  "  But,  although  this  is  the  general  rule,  a  question  may  arise 
how  far  the  misconduct  or  negligence  or  deviation  from  duty  of  the 
hirer  will  affect  him  with  responsibility  for  a  loss  which  would  and  must 
have  occurred,  even  if  he  had  not  been  guilty  of  any  such  misconduct, 
negligence,  or  deviation  from  duty."  He,  also,  in  the  same  connection, 
says :  'The  question,  therefore,  in  the  present  state  of  the  authorities, 
must  still  be  deemed  open  to  controversy.  Wherever  it  is  discussed  it 
will  deserve  consideration,  whether  there  is,  or  ought  to  be,  any  differ- 


CONVERSION.  51 

ence  between  cases  where  the  misconduct  of  the  hirer  amounts  to  a 
technical  or  an  actual  conversion  of  the  property  to  his  own  use,  and 
cases  where  there  is  merely  some  negligence  or  omission  or  violation 
of  duty  in  regard  to  it,  not  conducing  to  the  loss."  Schouler,  Bailments, 
page  137,  referring  to  this  same  matter,  says :  "  It  is  not  difficult  to 
conceive  that  the  technical  misuse  might  occur  without  an  actual 
abuse  of  the  terms  of  hire,  and  where  it  would  be  harsh  to  visit  devia- 
tion with  such  disastrous  penalties." 

We  are  not  willing  to  give  our  sanction  to  the  broad,  and,  when 
applied  to  a  case  like7  that  at  bar,  harsh  rule  of  the  instruction.  It 
must  be  borne  in  mind  that,  in  almost  every  case  where  that  strict  rule 
has  been  applied,  the  facts  have  shown  that  the  hirer,  in  addition  to 
departing  from  the  contract  line  of  travel,  was  guilty  of  negligence  or 
of  wilful  misconduct,  or  that  he  injured  or  destroyed  the  property 
while  outside  of  the  limits  of  the  contract  of  hiring.  Schouler,  Bailm., 
p.  137 ;  Farkas  v.  Powell,  [86  Ga.  800]  13  S.  E.  Rep.  200.  In  the  case 
last  cited  the  action  was  for  the  value  of  a  horse  which  had  died,  and 
which  it  was  alleged  defendant  had  ridden  beyond  the  place  he  had  hired 
him  to  go,  and  that,  by  negligence  or  cruelty,  the  horse  had  been  so 
injured  as  to  cause  his  death.  The  horse  was  hired  to  ride  from  Albany 
to  the  Whitehead  place,  in  the  country,  a  distance  of  five  miles  and 
was  to  be  returned  by  11  o'clock  at  night.  When  defendant  arrived 
at  the  Whitehead  place,  he  learned  that  the  person  he  wished  to  see  was 
at  the  Bryant  place,  three  or  four  miles  further  on,  and  he  rode  on  to 
that  place.  He  remained  there  two  hours  and  a  half,  and  left  about 
9.30  p.m.  for  Albany.  On  the  return,  and  between  the  Whitehead 
place  and  Albany,  the  horse  fell  in  the  road.  He  got  the  horse  up 
on  his  feet,  and  led  him  three  miles,  when  he  again  fell.  After  getting 
him  on  his  feet  again,  he  put  him  in  a  lot  near  by,  and  went  into  town, 
and  notified  the  plaintiff  where  the  horse  was,  and  of  his  condition. 
The  horse  died.  It  appeared  that,  when  defendant  got  the  horse  to  go 
upon  his  journey,  he  was  sound  and  in  good  condition,  and  showed  no 
signs  of  disease.  The  defendant  showed  that  he  rode  the  animal 
moderately.  It  was  held  that  there  was  a  technical  conversion  of  the 
horse,  and,  if  the  horse  had  been  injured  while  beyond  the  point  to 
which  he  was  hired  to  go,  defendant  would  have  been  liable,  whether 
the  injury  was  caused  by  his  own  negligence,  or  by  the  negligence  of 
others,  or  even  by  accident,  unless  he  was  forced  to  go  beyond  that 
point  by  reason  of  circumstances  he  could  not  control. 

The  court  said  :  "  But  the  main  question  in  this  case  is,  would 
Powell,  after  having  been  guilty  of  a  technical  conversion  or  violation 
of  his  duty,  and  having  returned  within  the  limits  of  the  original  hiring, 
and  the  horse  then  sustained  an  injury  without  other  fault  on  his  part, 
be  liable  ?  That  would  depend,  in  our  opinion,  upon  whether  the  extra 
ride  of  six  or  eight  miles  to  the  Bryant  place  and  back  caused  or  mate- 
rially contributed  to  the  accident.     If  it  did,  we  think  he  would  be 


52  ORDINARY    BAILMENTS. 

liable  to  the  owner.  ...  If,  however,  the  extra  ride  did  not  cause  or 
materially  contribute  to  thd  injury,  we  do  not  think  Powell  would  be 
liable,  if  guilty  of  no  other  fault."  In  Harvey  v.  Epes,  12  Gratt.  (Va.) 
153,  the  contract  was  one  for  the  hire  of  slaves  for  a  year,  to  work  in 
a  certain  county.  They  were  taken  by  the  hirer,  without  the  owner's 
consent,  to  another  county,  and  employed  in  the  same  kind  of  work, 
and,  while  there,  died.  The  court,  after  elaborately  discussing  the 
question  and  fully  considering  the  authorities,  held  that  the  removal 
of  the  slaves  to  a  county  other  than  that  for  which  they  were  hired 
to  work  in  was  not  of  itself  a  conversion,  regardless  of  whether  their 
death  was  caused  by  such  wrongful  act  or  not.  It  said :  "  Upon  the 
whole,  I  am  of  opinion  that,  in  the  case  of  a  bailment  for  hire  for  a  cer- 
tain term  .  .  .  the  use  of  the  property  by  the  hirer,  during  the  term,  for 
a  different  purpose,  or  in  a  different  manner,  from  that  which  was 
intended  by  the  parties,  will  not  amount  to  a  conversion  for  which 
trover  will  lie,  unless  the  destruction  of  the  property  be  thereby  occa- 
sioned, or  at  least  unless  the  act  be  done  with  intent  to  convert  the  prop- 
erty, and  thus  to  destroy  or  defeat  the  interest  of  the  bailor  therein. 
...  A  bailment  upon  hire  is  not  conditional  in  its  nature,  any  more 
than  any  other  contract ;  and,  in  the  absence  of  an  express  provision 
to  that  effect,  the  bailee  will  not,  in  general,  forfeit  his  estate  by  a  vio- 
lation of  any  of  the  terms  of  the  bailment.  ...  If  he  merely  uses 
the  property  in  a  manner,  or  for  a  purpose,  not  authorised  by  the 
contract,  and  without  destroying  it,  or  without  intending  to  injure  or 
impair  the  reversionary  interest  of  the  bailor  therein,  such  misuse  does 
not  determine  the  bailment,  and,  therefore,  is  not  a  conversion  for  which 
trover  will  lie."  See,  also,  2  Pars.  Cont.  128.  In  Cullen  v.  Lord,  39 
Iowa,  302,  the  action  was  for  the  recovery  of  the  value  of  a  horse  loaned 
to  defendant,  and  which  it  was  averred  was  killed  by  the  defendant's 
over-driving  and  ill-treatment.  It  was  held  that  the  jury  should  have 
been  instructed  that,  in  the  absence  of  a  contract  to  the  contrary,  the 
law  implied  an  agreement  to  pay  for  the  use  of  the  horse.  The  evi- 
dence tended  to  show  that  plaintiff  gave  defendant  certain  instruc- 
tions and  directions  respecting  the  time  of  starting,  and  the  manner  of 
caring  for  the  horse.  An  instruction  of  the  lower  court  to  the  effect 
that,  if  plaintiff  gave  instructions  and  directions,  and  did  not  after- 
ward waive  them,  and  defendant  did  not  follow  them,  he  would  be 
liable,  without  inquiry  as  to  whether  the  injury  resulted  from  a  failure 
to  obey  the  instructions  or  from  some  other  cause,  was  held  erroneous 
as  applied  to  a  case  of  letting  for  a  reward.  While  the  facts  in  that 
case,  so  far  as  they  appear,  are  not  like  those  in  the  case  at  bar,  still  we 
think  there  is  a  clear  recognition  of  the  doctrine  that,  in  cases  of  a  letting 
for  reward,  a  mere  violation  of  the  contract,  without  more,  will  not 
fix  a  liability  as  for  a  conversion.  To  constitute  a  conversion  in  a  case 
like  that  at  bar,  there  must  be  some  exercise  of  dominion  over  the  thing 
hired,  in  repudiation  of,  or  inconsistent  with,  the  owner's  rights.     We 


NEGLIGENCE.  53 

hold  that  the  mere  act  of  deviating  from  the  line  of  travel  which  the 
hiring  covered,  or  going  beyond  the  point  for  which  the  horse  was  hired, 
are  acts  which,  in  and  of  themselves,  do  not  necessarily  imply  an  asser- 
tion of  title  or  right  of  dominion  over  the  property,  inconsistent  with, 
or  in  defiance  of,  the  bailor's  interest  therein. 

As  there  was  nothing  to  show  that  the  defendant  in  violating  the 
terms  of  the  contract,  intended  to  appropriate  the  property  temporarily, 
or  permanently  to  his  own  use,  or  that  he  did  in  fact  so  appropriate  it 
or  exercise  acts  of  dominion  over  it  inconsistent  with  plaintiffs'  rights, 
he  should  not  be  held  liable  for  its  value  from  the  mere  fact  that  he  drove 
the  horse  beyond  or  outside  of  the  journey  for  which  he  was  hired.  Nor 
do  we  see  that  the  rule  we  have  stated  is  fraught  with  danger  in  its  appli- 
cation to  other  cases  that  may  arise.  We  are  not  called  upon  to  deter- 
mine as  to  whether  or  not  the  defendant  would  have  been  liable  if, 
under  proper  issues  and  evidence,  it  had  been  shown  that  the  extra 
driving  caused  or  contributed  to  the  death  of  the  horse,  as  no  such  case 
is  presented.  As  to  the  fact  that  the  contract  was  entered  into  on  Sun- 
day, we  do  not  think  it  is  at  all  controlling.  The  action  is  not  based 
upon  the  contract,  but  upon  the  theory  that  defendant  converted  the 
property  to  his  own  use.  If  he  did  so,  he  was  not  acting  under  the 
contract,  but  independent  of  it.  We  discover  no  error  in  the  eleventh 
instruction.     For  the  reasons  given,  the  case  is  reversed. 


4.   NEGLIGENCE, 
a.    What  Constitutes. 

DOORMAN  v.  JENKINS. 

2  Ad.  &  El.  256.     1834. 

Assumpsit.  The  first  count  of  the  declaration  alleged  that,  in  con- 
sideration that  the  plaintiff,  at  the  request,  &c,  had  delivered  to  the 
defendant  and  placed  in  his  charge  and  custody  a  sum  of  money,  to  wit 
the  sum  of  321.  10s.,  of  the  plaintiff,  for  the  purpose  and  in  order  that 
the  defendant  might  therewith  take  up  and  pay  for  the  plaintiff  a  cer- 
tain bill  of  exchange  made,  &c,  when  the  same  should  become  due  and 
be  presented,  and  in  consideration  that  the  defendant  then  and  there 
had  the  said  monies  in  his  hands  upon  the  terms  and  for  the  purpose 
aforesaid,  the  defendant  undertook,  &c,  that  he  would  with  the  said 
money  take  up,  &c.  Breach,  that  the  defendant  did  not  take  up,  &c, 
when  the  bill  was  presented  for  payment.  The  second  count  alleged 
that,  in  consideration  that  the  plaintiff,  at  the  request,  &c,  would  deliver 


54  ORDINARY   BAILMENTS. 

to  the  defendant  the  sum  of  321.  10s.  of  the  plaintiff,  provided  by  him 
for  the  purpose  of  taking  up  and  paying  a  certain  bill  of  exchange 
made,  &c.  (as  before),  the  defendant  undertook,  &c.  that  he  would  take, 
due  and  proper  care  of  the  said  sum  of  money  whilst  in  his  hands  in  the 
meantime  and  until  the  bill  should  become  due,  &c.  Averment,  that 
the  plaintiff  delivered  the  sum  to  the  defendant  for  the  purpose  afore- 
said. Breach,  that  the  defendant  did  not  take  due  and  proper  care ; 
but,  on  the  contrary,  took  so  little  and  such  bad  care,  that  afterwards 
to  wit,  &c,  the  said  sum  became,  and  was  and  is  wholly  lost  to  the 
plaintiff.  The  third  count  omitted  all  mention  of  the  bill  of  exchange, 
but  stated  that,  in  consideration  that  the  plaintiff,  at  the  request,  &c, 
had  delivered  the  sum,  &c,  to  be  kept  and  taken  care  of  by  the  defend- 
ant for  the  plaintiff,  the  defendant  undertook,  &c,  to  take  due  and 
proper  care  of  the  sum,  &c,  whilst  under  his  charge.  Breach,  that 
the  defendant  did  not  nor  would  take  proper  care,  &c. ;  but  on  the  con- 
trary thereof  whilst  the  same  was  in  his  charge,  took  so  little  and  such 
bad  care  thereof,  and  conducted  himself  so  negligently  and  improperly 
in  the  premises,  that,  &c.  (loss  as  before).  Counts  for  monies,  &c,  and 
account  stated.     Plea,  the  general  issue. 

On  the  trial  before  Denman,  C.  J.,  at  the  London  sittings  in  De- 
cember, 1833,  the  plaintiff  proved  the  delivery  of  the  money  to  the 
defendant  for  the  purpose  of  the  bill  being  taken  up  as  alleged  in  the 
declaration.  The  defendant  was  the  proprietor  of  a  coffee-house,  and 
the  account  which  he  was  proved  to  have  given  of  the  loss  was  as 
follows :  That  he  unfortunately  placed  the  money  in  his  cash-box, 
which  was  kept  in  the  tap-room ;  that  the  tap-room  had  a  bar  in  it ; 
that  it  was  open  on  a  Sunday,  but  that  the  other  parts  of  the  premises, 
which  were  inhabited  by  the  defendant  and  his  family,  were  not  open 
on  Sunday ;  and  that  the  cash-box,  with  the  plaintiff's  money  in  it, 
and  also  a  much  larger  sum  belonging  to  the  defendant,  was  stolen 
from  the  tap-room  on  a  Sunday.  The  defendant  did  not  pay  the  bill 
when  presented.  The  defendant's  counsel  contended  that  there  was 
no  case  to  go  to  the  jury,  inasmuch  as  the  defendant,  being  a  gratuitous 
bailee,  was  liable  only  for  gross  negligence ;  and  the  loss  of  his  own 
money,  at  the  same  time  as  the  plaintiff's,  shewed  that  the  loss  had  not 
happened  for  want  of  such  care  as  he  would  take  of  his  own  property. 

The  Lord  Chief  Justice  refused  to  nonsuit  the  plaintiff,  but  took  a 
note  of  the  objection.  The  defendant  called  no  witnesses.  His  Lord- 
ship told  the  jury  that  it  did  not  follow  from  the  defendant's  having 
lost  his  own  money  at  the  same  time  as  the  plaintiff's,  that  he  had 
taken  such  care  of  the  plaintiff's  money  as  a  reasonable  man  would 
ordinarily  take  of  his  own;  and  he  added,  that  the  fact  relied  upon 
was  no  answer  to  the  action,  if  they  believed  that  the  loss  occurred 
from  gross  negligence;  but  bis  Lordship  then  said  that  the  evidence 
of  gross  negligence  was  not,  in  his  opinion,  satisfactory.  Verdict  for 
the  plaintiff.     In  Hilary  term  last,  Sir  James  Scarlett  obtained  a  rule 


-NEGLIGENCE.  55 

to  shew  cause  why  the  verdict  should  not  be  set  aside,  and  a  nonsuit 
be  entered,  or  a  new  trial  be  had. 

Patteson,  J.  It  is  agreed  on  all  hands  that  the  defendant  is  not 
liable,  unless  he  has  been  guilty  of  gross  negligence.  The  difficulty  lies 
in  determining  what  is  gross  negligence,  and  whether  that  is  to  be  de- 
cided by  the  jury  or  the  Court.  If  the  Court  is  to  decide  it,  and  no 
evidence  has  been  given  that  satisfies  the  Court,  there  ought  to  have 
been  a  nonsuit.  If  the  jury  was  to  decide,  I  cannot  feel  a  doubt  that 
there  was  some  evidence  for  them.  I  agree  that  the  onus  probandi 
was  on  the  plaintiff.  It  appeared,  by  the  evidence  of  what  the  defend- 
ant had  said,  that  the  money  committed  to  his  charge  was  laid  in  a  box 
in  the  tap-room,  which  room  was  open  on  a  Sunday,  though  the  rest 
of  the  premises  were  not.  Under  these  circumstances,  there  can  be 
no  nonsuit ;  for  there  was  a  sufficient  case  to  go  to  the  jury.  Whether, 
in  the  abstract,  the  question  of  negligence  be  for  the  jury  or  the  Court, 
I  think  it  unnecessary,  as  my  brother  Taunton  says,  to  determine. 
The  present,  at  all  events,  was  a  question  of  fact,  and  therefore  for  the 
jury.  The  general  question  I  approach  with  much  diffidence.  I  do 
not  know  anything  more  difficult  than  to  say,  in  mixed  questions  of 
law  and  fact,  what  is  for  the  Court,  and  what  for  the  jury.  In  the 
present  case,  the  principal  doubt  in  my  mind  arose  from  the  case  of 
Shiells  v.  Blackburne  (1  H.  Bl.  158).  The  facts  in  that  case  were  not 
disputed.  It  appeared  that  the  defendant,  being  employed  (without 
reward)  to  send  out  some  dressed  leather,  entered  it  at  the  Custom 
House,  together  with  some  dressed  leather  of  his  own,  as  wrought  leather, 
in  consequence  of  which  the  whole  was  seized.  Whether  that  amounted 
to  gross  negligence,  must  have  been  a  question  for  the  jury.  The  report 
does  not  say  how  they  were  directed,  nor  whether  the  Judge  told  them 
that,  in  his  opinion,  it  was  gross  negligence.  At  first,  I  conceived  that 
nothing  appeared  from  the  report,  except  that  the  Court  thought  it 
was  not  a  case  of  gross  negligence.  But,  on  looking  into  the  case,  I  find 
the  Court  thought  that  the  jury  had  found  the  fact  erroneously,  and  sent 
the  issue  to  another  jury.  So  that,  in  the  present  case,  the  only  remain- 
ing question  is,  whether  the  Judge  left  the  question  properly.  At 
first,  I  understood  that  the  question  left  had  been,  whether  the  defend- 
ant had  used  ordinary  and  reasonable  care,  which,  although  it  may  be 
a  useful  criterion  in  determining  the  question  whether  there  has  been 
gross  negligence,  is  certainly  not  the  same  question.  But  it  seems 
that  his  lordship  left  it  to  them  to  say,  whether  there  had  been  gross 
negligence  ;  and  that  what  he  said  respecting  ordinary  care,  was  merely 
by  way  of  illustration.  We  cannot,  therefore,  disturb  the  verdict. 
Whether  I  should  have  found  the  same  verdict,  is  quite  immaterial. 

[Other  opinions  are  omitted.] 

Rule  discharged. 


56  ORDINARY    BAILMENTS. 

WILSON  v.   BRETT. 

Exchequer.     11  M.  &  W.  113.     1843. 

Case.  —  The  declaration  stated,  that  the  plaintiff,  at  the  request 
of  the  defendant,  caused  to  be  delivered  to  the  defendant  a  certain  horse 
of  the  plaintiff  of  great  value,  to  wit,  &c,  to  be  by  the  defendant  shewn 
to  a  certain  person  to  the  plaintiff  unknown,  and  to  be  redelivered  by 
the  defendant  to  the  plaintiff  on  request,  and  that  thereupon  it  then 
became  and  was  the  duty  of  the  defendant  to  take  due  and  proper  care 
of  the  said  horse,  and  to  use  and  ride  the  same  in  a  careful,  moderate, 
and  reasonable  manner  and  in  places  fit  and  proper  for  that  purpose : 
yet  the  defendant,  not  regarding  his  duty,  &c,  did  not  nor  would  take 
due  and  proper  care  of  the  said  horse,  but  on  the  contrary  used  and  rode 
the  same  in  a  careless,  immoderate,  and  improper  manner,  and  in  unfit 
and  improper  places,  &c,  whereby  the  said  horse  was  injured,  &c.  — 
Plea,  not  guilty. 

At  the  trial  before  Rolfe,  B.,  at  the  London  Sittings  in  this  term,  it 
appeared  that  the  plaintiff  had  entrusted  the  horse  in  question  to  the 
defendant,  requesting  him  to  ride  it  to  Peckham,  for  the  purpose  of 
shewing  it  for  sale  to  a  Mr.  Margetson.  The  defendant  accordingly 
rode  the  horse  to  Peckham,  and  for  the  purpose  of  shewing  it,  took  it 
into  the  East  Surrey  Race  Ground,  where  Mr.  Margetson  was  engaged 
with  others  playing  the  game  of  cricket :  and  there,  in  consequence  of 
the  slippery  nature  of  the  ground,  the  horse  slipped  and  fell  several 
times,  and  in  falling  broke  one  of  his  knees.  It  was  proved  that  the 
defendant  was  a  person  conversant  with  and  skilled  in  horses.  The 
learned  Judge,  in  summing  up,  left  it  to  the  jury  to  say  whether  the 
nature  of  the  ground  was  such  as  to  render  it  a  matter  of  culpable  negli- 
gence in  the  defendant  to  ride  the  horse  there ;  and  told  them,  that 
under  the  circumstances,  the  defendant,  being  shewn  to  be  a  person 
skilled  in  the  management  of  horses,  was  bound  to  take  as  much  care 
of  the  horse  as  if  he  had  borrowed  it ;  and  that,  if  they  thought  the  de- 
fendant had  been  negligent  in  going  upon  the  ground  where  the  injury 
was  done,  or  had  ridden  the  horse  carelessly  there,  they  ought  to  find  for 
the  plaintiff.     The  jury  found  for  the  plaintiff,  damages  5/.  10s. 

Bi/les,  Sergt.,  now  moved  for  a  new  trial,  on  the  ground  of  misdirec- 
tion. —  There  was  no  evidence  here  that  the  horse  was  ridden  in  an 
unreasonable  or  improper  manner,  except  as  to  the  place  where  he  was 
ridden.  The  defendant  was  admitted  to  be  a  mere  gratuitous  bailee ; 
and  there  being  no  evidence  of  gross  or  culpable  negligence,  the  learned 
Judge  misdirected  the  jury,  in  stating  to  them  that  there  was  no  differ- 
ence between  his  responsibility  and  that  of  a  borrower.  There  are 
three  classes  of  bailments  :  the  first,  where  the  bailment  is  altogether 
for  the  benefit  of  the  bailor,  as  where  goods  are  delivered  for  deposit  or 
carriage ;  the  second,  where  it  is  altogether  for  the  benefit  of  the  bailee, 


.    NEGLIGENCE.  57 

as  in  the  case  of  a  borrower ;  and  the  third,  where  it  is  partly  for  the 
benefit  of  each,  as  in  the  case  of  a  hiring  or  pledging.  This  defendant 
was  not  within  the  rule  of  law  applicable  to  the  second  of  these  classes. 
The  law  presumes  that  a  person  who  hires  or  borrows  a  chattel  is  pos- 
sessed of  competent  skill  in  the  management  of  it,  and  holds  him  liable 
accordingly.  The  learned  Judge  should  therefore  have  explained  to 
the  jury,  that  that  which  would  amount  to  proof  of  negligence  in  a 
borrower,  would  not  be  sufficient  to  charge  the  defendant,  and  that  he 
could  be  liable  only  for  gross  or  culpable  negligence. 

Lord  x\binger,  C.  B.  — We  must  take  the  summing  up  altogether; 
and  all  that  it  amounts  to  is,  that  the  defendant  was  bound  to  use  such 
skill  in  the  management  of  the  horse  as  he  really  possessed.  Whether 
he  did  so  or  not  was,  as  it  appears  to  me,  the  proper  question  of  the 
jury.  I  think,  therefore,  that  the  direction  was  perfectly  right,  and  that 
no  rule  ought  to  be  granted. 

Parke,  B.  —  I  think  the  case  was  left  quite  correctly  to  the  jury. 
The  defendant  was  shewn  to  be  a  person  conversant  with  horses,  and 
was  therefore  bound  to  use  such  care  and  skill  as  a  person  conversant 
with  horses  might  reasonably  be  expected  to  use :  if  he  did  not,  he  was 
guilty  of  negligence.  The  whole  effect  of  what  was  said  by  the  learned 
Judge  as  to  the  distinction  between  this  case  and  that  of  a  borrower, 
was  this  ;  that  this  particular  defendant,  being  in  fact  a  person  of  com- 
petent skill,  was  in  effect  in  the  same  situation  as  that  of  a  borrower, 
who  in  point  of  law  represents  to  the  lender  that  he  is  a  person  of  com- 
petent skill.  In  the  case  of  a  gratuitous  bailee,  where  his  profession  or 
situation  is  such  as  to  imply  the  possession  of  competent  skill,  he  is 
equally  liable  for  the  neglect  to  use  it. 

Alderson,  B.  —  The  learned  Judge  thought,  and  correctly,  that, 
this  defendant  being  shewn  to  be  a  person  of  competent  skill,  there  was 
no  difference  between  this  case  and  that  of  a  borrower ;  because  the 
only  difference  is,  that  there  the  party  bargains  for  the  use  of  competent 
skill,  which  here  becomes  immaterial,  since  it  appears  that  the  defend- 
ant has  it. 

Rolfe,  B.  —  The  distinction  I  intended  to  make  was,  that  a  gratui- 
tous bailee  is  only  bound  to  exercise  such  skill  as  he  possesses,  whereas 
a  hirer  or  borrower  may  reasonably  be  taken  to  represent  to  the  party 
who  lets,  or  from  whom  he  borrows,  that  he  is  a  person  of  competent 
skill.  If  a  person  more  skilled  knows  that  to  be  dangerous  which  another 
not  so  skilled  as  he  does  not,  surely  that  makes  a  difference  in  the  lia- 
bility. I  said  I  could  see  no  difference  between  negligence  and  gross 
negligence  —  that  it  was  the  same  thing,  with  the  addition  of  a  vitu- 
perative epithet ;  and  I  intended  to  leave  it  to  the  jury  to  say  whether 
the  defendant,  being,  as  appeared  by  the  evidence,  a  person  accus- 
tomed to  the  management  of  horses  was  guilty  of  culpable  negligence. 

Rule  refused. 


58  ORDINARY   BAILMENTS. 

KNOWLES  v.   ATLANTIC   &  ST.   LAW.   R.    R.   CO. 

38  Maine,  55  ;   61  Am.  D.  234.     1854. 

Rice,  J.  The  evidence  in  the  case  shows  that  the  original  contract 
of  the  defendants,  as  common  carriers,  was  fully  executed,  to  the  satis- 
faction of  the  plaintiff.  Howe,  the  forwarding  agent  of  the  railroad 
company,  in  his  deposition,  states,  that  "  I  told  Mr.  Knowles  that  the 
hay  was  now  delivered  in  good  order;  that  that  was  an  end  of  our 
contract,  and  that  it  must  now  be  at  his  risk  against  any  damage. 
He  replied  that  he  acknowledged  he  received  it  in  good  order."  The 
defendants  therefore,  clearly,  are  not  liable  as  common  carriers. 

The  case  provides,  that  if  in  the  opinion  of  the  Court,  the  plaintiff 
is  entitled  to  recover  in  any  form  of  declaring,  the  defendants  are  to 
be  defaulted. 

It  is  contended  that  they  are  liable  as  bailees,  or  depositaries.  The 
hay  was  permitted  to  remain  upon  the  defendants'  cars,  for  the  accom- 
modation of  the  plaintiff,  and  at  his  special  request.  For  this  the  de- 
fendant received  no  additional  compensation,  nor  consideration.  At 
most,  therefore,  they  were  naked  bailees,  or  gratuitous  depositaries. 

The  defendants  contend  that  there  was  no  responsibility  upon  them ; 
that  the  whole  risk  of  loss  or  damage  to  the  hay  was  assumed  by  the 
plaintiff.  Mr.  Hamlin,  who  acted  as  agent  for  the  plaintiff,  testified 
that  "Mr.  Howe  consented  that  the  hay  might  remain  on  the  cars 
(until  it  could  be  shipped),  with  the  understanding  that  the  whole  risk 
should  be  on  Mr.  Knowles.  Mr.  Knowles  asked  at  the  time,  '  is  there 
any  risk  ? '  or  something  like  that.  I  told  Mr.  Knowles,  Howe  being 
present  at  the  time,  that  there  was  a  risk ;  that  there  was  a  risk  in  all 
cases.  He  asked  what  risk  ?  I  told  him  there  was  the  risk  of  fire  and 
water,  or  rain;  and  there  were  other  risks  which  could  not  then  be 
thought  of ;  there  were  a  thousand  risks.  After  a  little  more  conver- 
sation it  finally  ended  in  Mr.  Knowles  assuming  the  whole  risk ;  .  .  . 
that  it  should  remain  on  the  cars  and  at  his  risk  until  it  was  shipped." 

This  witness  further  testified  that  the  cars  on  which  the  hay  then 
was,  were  on  the  principal  track,  from  which  they  must  be  removed 
to  make  room  for  other  trains.  The  track  down  on  the  wharf,  and  the 
one  where  the  cars  then  stood,  were  the  only  tracks  from  which  freight 
could  be  shipped. 

This  was  on  the  16th  of  July,  1851.  On  the  18th  of  the  same  July, 
the  cars  on  which  the  plaintiff's  hay  was  transported,  having  been  re- 
moved, but  under  whose  directions  does  not  appear,  to  the  defendants' 
wharf,  were  precipitated  into  the  dock,  by  the  breaking  down  of  the 
wharf,  in  consequence  of  its  being  overloaded  with  railroad  iron.  This 
risk,  the  plaintiff  affirms,  was  not  contemplated  by  the  parties,  nor 
assumed  by  him,  but  was  the  consequence  of  the  gross  negligence  of  the 
defendants,  and  therefore  they  should  sustain  the  loss. 


NEGLIGENCE.  59 

Being  a  bailee  without  reward,  the  defendants  are  bound  to  slight 
diligence  only,  and  are  therefore  not  answerable  except  for  gross  neglect. 
Story  on  Bailments,  §  62 ;   Foster  v.  Essex  Bank,  17  Mass.  500. 

The  authorities  do  not  concur  in  a  uniform  standard  by  which  to 
determine  what  constitutes  gross  negligence  in  a  gratuitous  bailee,  or 
depositary.  Such  a  bailee,  who  receives  goods  to  keep  gratis,  is  under 
the  least  responsibility  of  any  species  of  trustee.  If  he  keeps  the  goods 
as  he  keeps  his  own,  though  he  keeps  his  own  negligently,  he  is  not 
answerable  for  them.  He  is  only  answerable  for  fraud,  or  that  gross 
neglect  which  is  evidence  of  fraud.  Just.  Inst.  Lib.  3,  tit.  15,  §  3 ; 
Coggs  v.  Barnard,  2  L'd  Raymond,  909,  914  [4] ;  Foster  v.  Essex  Bank, 
17  Mass.  500;  2  Kent's  Com.  561,  562. 

Judge  Story,  in  his  work  on  Bailments,  §  64,  says  :  "  The  depositary 
is  bound  to  slight  diligence  only ;  and  the  measure  of  that  diligence  is 
that  degree  of  diligence,  which  persons  of  less  than  common  prudence, 
or  indeed  of  any  prudence  at  all,  take  of  their  own  concerns.  The 
measure,  abstractly  considered,  has  no  reference  to  the  particular  char- 
acter of  an  individual ;  but  it  looks  to  the  general  conduct  and  character 
of  a  whole  class  of  persons  ;  and  so  Sir  William  Jones  has  intimated  on 
some  occasions."  He  cites  Jones  on  Bailments,  82,  83 ;  Tompkins  v. 
Saltmarsh,  14  Serg.  &  Rawle,  275;  Doorman  v.  Jenkins,  2  Adol.  & 
Ellis,  256  [53]. 

Both  of  the  above  rules,  which,  on  a  strict  analysis,  will  not  be  found 
in  any  essential  point  dissimilar,  are  subject,  under  some  circumstances, 
to  modification.  Thus  when  the  bailor  or  depositor  not  only  knows  the 
general  character  and  habits  of  the  bailee  or  depositary,  but  the  place 
where  and  the  manner  in  which  the  goods  deposited  are  to  be  kept  by 
him,  he  must  be  presumed  to  assent,  in  advance,  that  his  goods  shall  be 
thus  treated  ;  and  if  under  such  circumstances  they  are  damaged  or  lost, 
it  is  by  reason  of  his  own  fault  or  folly.  He  should  not  have  entrusted 
them  with  such  a  depositary  to  be  kept  in  such  a  manner  and  place. 

Applying  these  principles  to  the  case  under  consideration,  and  what- 
ever view  we  may  take  of  the  extent  of  the  plaintiff's  liability  by  rea- 
son of  his  special  contract,  the  result  cannot  be  doubtful.  That  it  was 
the  expectation  of  both  parties  that  the  hay  was  to  be  shipped  from  the 
defendants'  wharf,  is  very  apparent.  That  wharf  was  open  to  the 
inspection  of  the  world.  The  plaintiff  had  the  same  opportunities  to 
observe  its  condition  as  the  defendants.  The  iron  by  which  it  was 
ultimately  carried  down  had  been  deposited  upon  it  months  before. 
No  additional  incumbrance  appears  to  have  been  placed  upon  the  wharf 
by  the  defendants  after  the  arrival  of  the  hay,  before  it  finally  broke 
down. 

In  view  of  all  the  facts  in  the  case,  and  independent  of  the  special 
contract  testified  to  by  Mr.  Hamlin,  we  are  of  opinion  that  the  defend- 
ants are  not  liable.  Therefore,  according  to  agreement  a  nonsuit 
must  be  entered. 


60  ORDINARY    BAILMENTS. 

BENNETT  v.   O'BRIEN. 
37  111.  250.     1865. 

Mr.  Justice  Lawrence  delivered  the  opinion  of  the  court:  — 

O'Brien  let  Bennett,  the  appellant,  have  the  use  of  his  horse  without 
compensation.  This  gratuitous  bailment  imposed  on  the  appellant 
the  duty  of  extraordinary  care.  After  a  drive  in  January,  1864,  of 
eighteen  miles  from  his  home,  returning  the  next  day,  the  mare  sickened 
and  died.  The  evidence  is  conflicting  as  to  the  cause  of  her  death. 
Two  witnesses  swear  that  the  defendant  admitted  she  had  been  driven 
into  a  snow  bank.  The  jury  found  a  verdict  for  O'Brien,  the  plaintiff 
below,  for  the  value  of  the  mare. 

The  appellant  insists  that  the  court  erred  in  refusing  to  give  his 
1st,  2d,  4th,  arid  7th  instructions.     The  first  was  as  follows :  — 

If  the  jury  believe  from  the  evidence  that  the  mare  in  question  died 
from  inevitable  casualty  or  by  causes  or  under  circumstances  over  which 
the  defendant  had  no  control,  and  could  not  prevent,  then  they  will 
find  for  the  defendant,  unless  they  further  believe  that  the  defendant 
was  guilty  of  gross  negligence  and  carelessness. 

This  instruction  would  have  misled  the  jury.  Although  the  direct 
cause  of  the  mare's  death  may  have  been  a  disease  over  which  the  de- 
fendant had  no  control,  yet  if  that  disease  was  traceable  to  the  slightest 
negligence  on  the  part  of  the  defendant,  this  would  render  him  liable. 

The  second  instruction  was  as  follows :  — 

If  the  jury  believe  from  the  evidence  that  the  defendant  used  the 
same  care,  diligence,  and  prudence  in  taking  care  of  the  mare  in  question 
that  a  prudent,  careful  man  would  take  care  of  his  own  property  under 
similar  circumstances,  they  will  find  for  defendant. 

This  instruction  is  wrong  in  assuming  that  the  bailment  was  a  bail- 
ment for  hire. 

When  the  loss  of  the  mare  is  shown,  the  proof  of  negligence  or  want 
of  care  is  thrown  upon  the  plaintiff  ;  it  being  a  presumption  of  law  that 
proper  care  and  diligence  were  exercised  on  the  part  of  the  defendant. 

There  is  some  conflict  of  authority  on  this  subject,  but  we  think  this 
instruction  was  properly  refused  in  reference  to  a  gratuitous  bailee. 
When  the  death  of  the  mare,  in  the  hands  of  the  defendant,  was  proven, 
together  with  the  character  of  the  bailment,  it  devolved  upon  him  to 
show  that  he  had  exercised  the  degree  of  care  required  by  the  nature 
of  the  bailment.  These  were  facts  peculiarly  within  his  knowledge  and 
power  to  prove,  and  any  other  rule  would  impose  great  difficulties  upon 
bailors. 

The  seventh  instruction  was  as  follows  :  — 

If  the  jury  believe  from  the  evidence  that  the  mare  did  not  die  from 
the  effects  of  over  driving  and  misusage  on  the  part  of  the  defendant, 
they  will  find  for  defendant. 


NEGLIGENCE.  61 

This  instruction,  like  the  second,  is  objectionable  because  it  assumes 
that  the  defendant  was  only  bound  to  such  care  of  the  mare  as  would 
be  a  bailee  for  hire.  Even  if  the  mare  did  not  die  from  positive  over- 
driving and  misusage,  yet  if  her  disease  was  traceable  to  the  slightest 
negligence  on  the  part  of  the  defendant,  he  would  be  liable.  The  coun- 
sel for  appellant  regard  the  bailment  as  a  bailment  for  hire.  We  do 
not  so  consider  it,  but  if  it  were  doubtful  upon  the  evidence,  these  in- 
structions are  wrong  in  assuming  it  to  be  a  hiring,  instead  of  putting 
the  case  hypothetically. 

In  regard  to  the  character  of  the  bailment,  it  may  be  remarked  that 
the  fact  of  the  plaintiff  being  saved  the  keeping  of  his  horse  by  loaning 
him  to  the  defendant,  although  to  that  extent  the  loan  may  be  considered 
an  advantage  to  him,  does  not  take  from  it  the  character  of  a  gratui- 
tous bailment.  Such  incidental  advantage  is  not  the  compensation 
necessary  to  make  the  bailment  one  of  hire.  The  loan  of  the  use  of 
domestic  animals  necessarily  involves  their  keeping.  He  who  borrows 
the  horse  of  another  for  a  week's  journey,  must  not  only  incur  the  ex- 
pense of  feeding  him,  but  he  must  take  the  responsibilities  of  a  gratui- 
tous bailee.  Howard  v.  Babcock,  21  111.  265.  In  the  case  before  us, 
no  compensation  was  paid  for  the  use  of  the  horse.  We  think  the  verdict 
sustained  by  the  evidence. 

Judgment  affirmed. 


WISER  v.   CHESLEY. 
53  Mo.  547.     1873. 

Sherwood,  J.  This  was  an  action  instituted  before  a  justice  of  the 
peace  by  Wiser  against  Chesley  for  money  alleged  to  have  been  deposited 
with  the  latter  by  the  former.  The  cause  was  tried  anew  in  the  Circuit 
Court. 

The  defendant  at  the  time  of  the  deposit  was  the  proprietor  of  the 
St.  Clair  Hotel  and  the  plaintiff  a  boarder  there,  and  the  evidence  tended 
to  show,  that  plaintiff  had  deposited  with  the  clerk  of  the  defendant 
the  amount  of  money  for  which  suit  was  brought ;  that  the  money  had 
been  put  in  the  safe  of  the  hotel,  and  a  check  as  evidence  of  such  deposit 
returned  to  plaintiff,  who  frequently  came  and  obtained  from  one  of  the 
clerks  his  package  of  money  and  sometimes  added  thereto,  and  at  one 
time  took  $10  therefrom,  and  that  finally  the  package  of  money  was 
missing  and  could  not  be  found,  nor  was  it  returned  to  plaintiff  on  his 
demand.  The  evidence  also  tended  to  show,  that  the  safe  was  secure, 
kept  locked,  and  in  the  office  where  one  of  the  clerks  or  the  proprietor 
remained  clay  and  night ;  that  plaintiff  often  obtained  the  package  of 
money  from  one  of  the  clerks  without  the  presentation  of  his  check, 


62  ORDINARY   BAILMENTS. 

but  that  when  receiving  it  from  the  other  he  always  presented  his  check ; 
that  the  package  never  could  have  "got  out  of  the  safe"  without  the 
knowledge  of  the  proprietor  or  clerks  ;  that  in  that  safe  were  kept  the 
money  and  valuables  of  the  guests  and  of  the  proprietor,  who,  however, 
usually  kept  the  most  of  his  money  in  the  bank ;  that  no  charge  was 
made  for  keeping  plaintiff's  money;  that  plaintiff  knew  the  way  in 
which  the  money  packages,  &c,  deposited  in  the  safe,  were  kept;  that 
no  money  package  had  ever  been  lost  from  the  safe,  and,  although  there 
was  some  conflict  of  testimony  on  the  point,  yet  the  evidence  certainly 
tended  very  strongly  to  show,  that  the  check  presented  by  plaintiff 
as  the  token  of  his  deposit  had  never  been  received  by  him  from  either 
the  proprietor  or  his  clerks,  and  that  no  check  of  that  description  had 
ever  been  kept  in  the  house.  But  no  objection  was  made,  it  seems,  to 
the  check  when  the  package  was  demanded. 

The  defendant  asked  the  court  to  instruct  the  jury  as  follows  :  — 

"The  jury  are  instructed,  that  the  mere  fact  that  the  money  was 
lost,  if  they  so  find,  in  the  absence  of  evidence  of  gross  negligence  or 
fraud,  does  not  make  the  defendant  liable  therefor." 

"The  jury  are  instructed,  that  the  defendant  was  only  bound  to 
exercise  reasonable  care  in  keeping  the  money  of  the  plaintiff.  That  he 
is  responsible  only  for  gross  negligence  or  for  a  violation  of  good  faith." 

These  instructions  the  court  refused  to  give ;  to  which  ruling  the 
defendant  excepted,  as  well  as  to  the  action  of  the  court  in  giving  the 
following  instructions  in  behalf  of  the  plaintiff :  "  If  the  jury  believe 
from  the  evidence,  that  the  defendant  took  from  the  plaintiff  for  safe- 
keeping the  sum  of  $138,  and  did  not  return  the  same,  and  that  the  same 
was  lost  or  mislaid,  and  that  defendant  did  not  take  such  care  of  said 
money  as  a  prudent  person  would  take  of  funds  so  entrusted  to  him, 
then  the  jury  will  find  for  plaintiff  for  the  amount  they  find  Chesley 
received,  with  interest  from  the  commencement  of  this  suit.  What  is 
reasonable  care  is  a  question  for  the  jury  to  determine,  and  the  burden 
of  proof  rests  on  defendant  to  show,  that  he  did  take  reasonable  care 
of  said  money." 

The  jury  found  for  the  plaintiff,  and  the  defendant  brings  this  case 
on  appeal  and  assigns  for  error,  the  same  grounds  as  taken  in  the  above 
exceptions. 

The  court,  I  think,  properly  refused  to  instruct  the  jury  as  asked  by 
defendant,  for  the  reason  that  although  the  instructions  may  perhaps 
have  been  abstractly  and  theoretically  correct,  yet  they  were  well 
calculated  to  mislead  the  jury,  as  they  did  not  define  what  gross  negli- 
gence was.  (See  Mueller  v.  Putnam  Fire  Ins.  Co.,  45  Mo.  84.)  But 
the  court  manifestly  erred  in  giving  the  instructions  which  it  gave  on 
the  part  of  plaintiff,  as  to  the  care  which  the  defendant  should  have 
exercised.  Chesley  was  but  a  mere  depositary  —  a  bailee  without 
recompense  or  reward.  The  contract  of  bailment  was  entered  into, 
not  for  his  benefit,  but  for  the  benefit  of  the  bailor  alone.     The  measure 


NEGLIGENCE.  63 

of  the  depositary's  diligence  therefore  was  the  slightest  known  to  the 
law.  (Sto.  Bailm.  §§  23-64.)  And  he  was  responsible  only  for  "that 
omission  of  care  which  even  the  most  inattentive  and  thoughtless  never 
fail  to  take  of  their  own  concerns,"  in  other  words  for  gross  negli- 
gence. (Tompkins  v.  Saltmarsh,  14  S.  &  R.,  275.)  And  in  all  mere 
gratuitous  undertakings,  whether  deposits  or  mandates,  the  same 
general  rule  as  to  the  diligence  to  be  exercised  prevails. 

In  Stanton  v.  Bell,  2  Hawks,  145,  the  defendants  were  mandatories, 
and  the  court  then  held,  that  the  charge  to  the  jury,  "  that  the  defend- 
ants, were  bound  to  use  that  care  and  diligence  which  a  prudent  and 
discreet  man  would  use  relative  to  his  affairs,"  was  erroneous,  and  upon 
that  ground  the  judgment  was  reversed.  The  court  holding,  that  such 
a  charge  would  only  have  been  proper  where  the  mandatory  acted  for 
compensation.  There  was  no  error,  however,  in  the  latter  portion  of  the 
instruction  referred  to  —  that  which  related  to  the  burden  of  the  proof. 

The  depositor  makes  out  a  prima  facie  case,  when  he  shews  a  deposit 
made,  and  a  demand  and  refusal  of  the  thing  deposited.  The  onus 
is  then  upon  the  depositary  to  exonerate  himself  from  the  liability,  which 
attached  when  he  assumed  the  custody  of  the  article  with  which  he 
was  entrusted.  (See  Edward's  Bailm.  88;  Beardslee  v.  Richardson, 
11  Wend.  25 ;  McNabb  v.  Lockhart,  18  Ga.  495.) 

The  judgment  is  reversed  and  the  cause  remanded. 


FIRST  NATIONAL  BANK  v.   GRAHAM. 

79  Pa.  St.  106 ;   21  Am.  R.  49.     1875. 

[Action  of  assumpsit  by  Fannie  L.  Graham  against  the  First  National 
Bank  of  Carlisle,  to  recover  the  value  of  four  United  States  5-20  bonds 
of  $1000  each,  which  had  been  left  by  her  with  the  bank  for  safekeep- 
ing, and  which  on  demand  the  bank  failed  to  deliver.  The  plaintiff 
alleged  that  the  bonds  had  been  lost  through  the  negligence  of  the 
defendant.  For  defendant  evidence  was  introduced  to  shew  that 
the  bonds,  together  with  money  and  securities  belonging  to  the  bank, 
had  been  stolen  from  its  vault.  There  was  judgment  for  plaintiff  and 
defendant  appeals.] 

Mr.  Justice  Woodward.  [The  discussion  of  a  question  of  evidence 
is   omitted.] 

The  next  question  is  presented  by  the  series  of  assignments  which 
allege  error  in  the  instructions  given  to  the  jury  as  to  the  measure  and 
extent  of  the  responsibility  of  the  defendants.  Assuming  for  present 
purposes  on  the  faith  of  the  verdict,  that  the  act  of  the  cashier  was  so 
far  acquiesced  in  and  ratified  by  the  officers  and  directors,  as  to  create 


64  ORDINARY    BAILMENTS. 

a  contract  between  the  plaintiff  and  the  bank,  it  is  manifest  that  the 
contract  amounted  at  the  utmost  to  a  naked  bailment.  It  was  a  deposit 
without  compensation.  No  undertaking  was  expressed  except  that  the 
bonds  were  to  be  returned  on  the  return  of  the  cashier's  receipt.  The 
law  regulating  such  a  contract  has  been  settled  since  the  decision  of 
Coggs  v.  Bernard,  2  Ld.  Raym.  909  [4],  in  the  year  1703.  "  Where  a  man 
takes  goods  into  his  custody  to  keep  for  the  use  of  the  bailor,"  it  was 
said  by  Holt,  C.  J.,  in  that  case,  "he  is  not  answerable  if  they  are  stole 
without  any  fault  in  him,  neither  will  a  common  neglect  make  him 
chargeable,  but  he  must  be  guilty  of  some  gross  neglect."  The  princi- 
ples which  govern  the  relations  between  bailors  and  bailees  are  succinctly 
stated  in  Story  on  Bailments,  §  23.  "When  the  bailment  is  for  the 
sole  benefit  of  the  bailor,  the  law  requires  only  slight  diligence  on  the 
part  of  the  bailee,  and  of  course  makes  him  answerable  only  for  gross 
neglect.  When  the  bailment  is  for  the  sole  benefit  of  the  bailee,  the 
law  requires  great  diligence  on  the  part  of  the  bailee,  and  makes  him 
responsible  for  slight  neglect.  When  the  bailment  is  reciprocally  bene- 
ficial to  both  parties,  the  law  requires  ordinary  diligence  on  the  part  of 
the  bailee,  and  makes  him  responsible  for  ordinary  neglect."  In  Tomp- 
kins v.  Saltmarsh,  14  S.  &  R.  275,  Duncan,  J.,  in  delivering  the  opinion 
of  the  court,  said  :  "  Where  one  undertakes  to  perform  a  gratuitous  act, 
from  which  he  is  to  receive  no  benefit,  and  the  benefit  is  to  accrue  solely 
to  the  bailor,  the  bailee  is  liable  only  for  gross  negligence,  dolo  proximus, 
a  practice  equal  to  a  fraud.  It  is  that  omission  of  care  which  even  the 
most  inattentive  and  thoughtless  men  take  of  their  own  concerns. 
There  is  this  marked  difference  in  cases  where  ordinary  diligence  is 
required,  and  where  a  party  is  accountable  only  for  gross  neglect.  Ordi- 
nary neglect  is  the  want  of  that  diligence  which  the  generality  of  man- 
kind use  in  their  own  concerns,  and  that  diligence  is  necessarily  required 
where  the  contract  is  reciprocally  beneficial.  The  bailee  without 
reward  is  not  bound  to  ordinary  diligence,  is  not  responsible  for  that 
care  which  every  attentive  and  diligent  person  takes  of  his  own  goods, 
but  only  for  that  care  which  the  most  inattentive  take." 

These  principles  were  applied  by  Coulter,  J.,  in  Lloyd  v.  The  West 
Branch  Bank,  3  Harris  176,  and  by  the  present  chief  justice  in  Scott  v. 
The  National  Bank  of  Chester  Valley,  22  P.  F.  Smith,  471,  and  were 
recognised  by  Thompson,  C.  J.,  in  the  Lancaster  County  Bank  v.  Smith, 
12  P.  F.  Smith,  54.  In  view  of  these  well-established  rules,  the  presen- 
tation to  the  jury  of  the  legal  aspects  of  this  cause  was  inadequate  and 
imperfect.  There  was  no  dispute  that  this  was  a  gratuitous  bailment, 
and  in  the  general  charge  the  court  properly  limited  the  responsibility 
of  the  defendant  to  a  case  of  gross  neglect.  But  this  gross  neglect  was 
defined  to  be  "the  omission  of  those  precautions  which  persons  of 
common  care  and  common  prudence  would  naturally  adopt,  though 
they  might,  in  reference  to  their  own  goods,  omit  them." 

In  the  plaintiff's  first  point,  the  court  were  asked  to  charge  that  the 


NEGLIGENCE.  65 

defendants  were  "bound  to  exercise  ordinary  care,  skill  and  diligence 
to  keep  and  return  the  bonds  safely ;  such  care  as  men  of  ordinary 
prudence  exercise  in  the  care  of  their  own  property."  The  answer 
was  in  these  words  :  "  First  point  affirmed,  and  for  the  meaning  of  gross 
negligence  the  jury  are  referred  to  the  general  charge."  In  the  plain- 
tiff's third  point,  the  court  was  asked  to  say,  that  "if  the  defendants 
were  negligent  and  did  not  exercise  ordinary  care,  skill  and  caution,  to 
keep  the  plaintiff's  bonds  safely,  then  they  are  liable  for  their  value, 
no  matter  how  negligent  they  may  have  been  in  taking  care  of  their 
own  property."  The  answer  was:  "Affirmed  —  see  general  charge." 
The  defendants  had  the  right  to  complain  of  the  manner  in  which  the 
case  was  submitted  to  the  jury.  The  standard  of  duty  established  for 
them  was  one  to  which  they  could  not,  under  the  evidence,  be  justly 
held.  In  the  language  of  Judge  Duncan,  in  Tompkins  v.  Saltmarsh, 
"  they  were  responsible  for  the  omission  of  care  which  even  the  most  in- 
attentive and  thoughtless  men  take  of  their  own  concerns." 

Upon  the  trial  the  ground  was  assumed  by  the  defendants  that  there 
could  be  no  recovery  against  them  if  the  jury  should  find  that  they  had 
taken  the  same  care  of  the  plaintiff's  bonds  that  they  had  taken  of  their 
own  securities,  and  complaint  is  now  made  of  the  failure  of  the  court 
to  sustain  their  position.  In  a  multitude  of  cases,  language  has  been 
used  by  judges  which  would  seem  to  indicate  the  existence  of  -the  rule 
for  which  the  defendants  contend.  Such  language  was  employed  in 
Foster  v.  The  Essex  Bank,  17  Mass.  479,  and  in  the  cases  already 
referred  to,  of  Coggs  v.  Bernard,  Lloyd  v.  The  West  Branch  Bank,  and 
Scott  v.  National  Bank  of  Chester  Valley.  In  general,  however,  this 
view  of  the  law  has  been  abstractly  stated,  and  where  it  has  been  ap- 
plied, as  in  Lloyd  v.  The  West  Branch  Bank,  the  diligence  used  by  the 
bailee  in  the  oversight  equally  of  the  deposit  and  his  own  property, 
corresponded  with  that  diligence  to  which,  in  the  circumstances  of  the 
particular  bailment,  the  law  held  him  bound.  The  authorities  relied 
on  by  the  defendants  "do  not  seem,"  Judge  Story  has  said,  "to  express 
the  general  rule  in  its  true  meaning.  The  depositary  is  bound  to  slight 
diligence  only ;  and  the  measure  of  that  diligence  is  that  degree  of 
diligence  which  persons  of  less  than  common  prudence,  or  indeed  of 
any  prudence  at  all,  take  of  their  own  concerns.  The  measure,  ab- 
stractly considered,  has  no  reference  to  the  particular  character  of  an 
individual,  but  it  looks  to  the  conduct  and  character  of  a  whole  class 
of  persons."  Story  on  Bailments,  564.  The  fact  that  the  bailee  keeps 
the  property  of  the  bailor,  with  the  ordinary  care  with  which  he  keeps 
his  own,  does  not  fulfil  the  measure  of  his  legal  duty  where  the  contract 
is  one  which  requires  strict  diligence  and  extraordinary  care.  So,  under 
a  contract  of  bailment,  in  which  the  benefits  are  reciprocal,  the  bailee 
is  not  shielded  from  liability  for  neglect  of  ordinary  care  by  proving 
that  he  has  been  careless,  inattentive,  and  reckless  in  the  management 
of  his  goods  as  well  as  those  of  the  bailor.     Cases  for  the  application  of 


66  ORDINARY   BAILMENTS. 

the  maxim  of  the  Emperor  Constantine,  quoted  in  Jones  on  Bailments, 
83,  "  Aliena  negotia  exacto  officio  geruntcr,"  must  constantly  arise.  The 
terms  used  in  the  authorities  referred  to  are  employed  more  by  way 
of  illustration  than  as  a  statement  of  the  legal  rule.  That  the  bailee 
has  dealt  with  his  property  and  the  bailor's  in  the  same  way,  is  a  fact 
which  may  be  always  shown  as  an  element  in  adjusting  the  standard  of 
duty,  and  deciding  the  question  of  its  performance,  as  well  as  a  test  of 
the  bailee's  good  faith.  On  the  proof  of  such  a  fact,  a  presumption  of 
adequate  diligence  would  ordinarily  arise.  But  the  question  of  the 
bailee's  responsibility  must  be  finally  settled  by  a  resort  to  the  settled 
principle  which  deduces  the  measure  of  his  duty  in  each  particular  bail- 
ment, from  a  comparison  of  his  conduct  with  the  conduct  not  of  indi- 
viduals but  of  classes  of  men.  The  instructions  of  the  court  on  this 
subject  in  the  general  charge  were,  that,  if  the  bailee  "  takes  the  same 
care  of  the  goods  bailed  that  he  does  of  his  own,  that  ordinarily  repels 
the  presumption  of  gross  negligence.  The  desire  to  preserve  one's 
own  property  from  loss  from  any  cause  is,  as  a  rule,  so  universal,  that 
the  mind  rests  with  satisfaction  on  the  evidence  which  shows  the  same 
care  of  the  bailed  property  which  the  bailee  took  to  save  his  own,  unless 
it  was  shown  that  he  was  grossly  negligent  of  both,  and  when  this  is 
done  he  is  not  excused,  but  held  answerable."  It  is  conceived  that 
these  instructions  were  unobjectionable.  Whether  the  defendants  were 
guilty  of  such  gross  negligence  as  to  make  them  liable,  was  a  question 
which,  like  that  which  was  raised  as  the  fact  of  robbery,  and  like  the 
other  issues  involved,  it  was  for  the  jury,  under  all  the  evidence,  exclu- 
sively to  decide. 

[Other  portions  of  opinion  are  omitted.] 

Judgment  reversed.1 


PRESTOX   v.   PRATHER. 

137  U.  S.  604;    11  Sup.  Ct.  Rep.  162.     1890. 

The  plaintiffs  below,  the  defendants  in  error  here,  were  citizens  of 
Missouri,  and  for  many  years  have  been  copartners,  doing  business  at 
Maryville,  in  that  State,  under  the  name  of  the  Nodaway  Valley  Bank 
of  Maryville.  The  defendants  below  were  citizens  of  different  States, 
one  of  them  of  Michigan  and  the  others  of  Illinois,  and  for  a  similar 
period  have  been  engaged  in  business  as  bankers  at  Chicago,  in  the 
latter  State.  In  1873  the  plaintiffs  opened  an  account  with  the  defend- 
ants, which  continued  until  the  spring  of  1883.  The  average  amount 
of  deposits  by  them  with  the  defendants  each  year  during  this  period 

1  This  case  was  afterwards  before  the  Supreme  Court  of  the  United  States,  on 
appeal  from  a  judgment  for  plaintiff,  and  such  judgment  was  affirmed.  National 
Bank  v.  Graham,  100  U.  S.  699  (1879). 


NEGLIGENCE.  67 

was  between  two  and  four  hundred  thousand  dollars.  Interest  was 
allowed  at  the  rate  of  two  and  one-half  per  cent  on  the  deposits  above 
three  thousand  dollars,  but  nothing  on  deposits  under  that  sum. 

On  the  7th  of  July,  1880,  the  plaintiffs  purchased  of  the  defendants 
four  per  cent  bonds  of  the  United  States  to  the  nominal  amount  of 
twelve  thousand  dollars ;  but,  the  bonds  being  at  a  premium  in  the 
market,  the  plaintiffs  paid  for  them,  including  the  accrued  interest 
thereon,  thirteen  thousand  and  five  dollars.  The  purchase  was  made 
upon  a  request  by  letter  from  the  plaintiffs  ;  and  all  subsequent  com- 
munications between  the  parties  respecting  the  bonds,  and  the  condi- 
tions upon  which  they  were  to  be  held,  are  contained  in  their  correspond- 
ence. The  letter  directing  the  purchase  concluded  with  a  request 
that  the  defendants  send  to  the  plaintiffs  a  description  and  the  number 
of  the  bonds,  and  hold  the  same  as  a  special  deposit.  In  the  subsequent 
account  of  the  purchase  rendered  by  the  defendants  the  plaintiffs  were 
informed  that  the  bonds  were  held  on  special  deposit  subject  to  their 
order.  The  numbers  of  the  bonds  appear  upon  the  bond  register  kept 
by  the  defendants,  and  the  bonds  remained  in  their  custody  until  some 
time  between  November,  1881,  and  November,  1882,  when  they  were 
stolen  and  disposed  of  by  their  assistant  cashier,  one  Ker,  who  absconded 
from  the  State  on  the  16th  of  January,  1883.  The  present  action  was 
brought  to  recover  their  value. 

[It  appeared  that  about  a  year  before  he  absconded,  information 
was  given  to  the  bank  that  some  one  in  its  employ  was  speculating  on 
the  Board  of  Trade  in  Chicago,  and  an  inquiry  revealed  the  fact  that 
Ker  was  the  person.  Although  he  was  supposed  to  be  dependent  en- 
tirely on  his  salary,  and  although  he  had  free  access  to  the  vaults 
where  the  securities  of  the  bank,  including  these  bonds,  were  deposited, 
he  was  continued  in  the  service  of  the  bank  until  the  theft  took  place. 

At  the  trial  a  jury  was  waived  by  stipulation.  The  court  found  spe- 
cial findings  of  fact,  which  were  not  excepted  to,  and  gave  judgment  for 
the  plaintiffs.  29  Fed.  Rep.  498.  The  defendants  sued  out  this 
writ  of  error.] 

Mr.  Justice  Field.  By  the  defendants  it  was  contended  below  in  sub- 
stance, and  the  contention  is  renewed  here,  that  the  bonds  being  placed 
with  them  on  special  deposit  for  safe-keeping,  without  any  reward,  prom- 
ised or  implied,  they  were  gratuitous  bailees,  and  were  not  chargeable 
for  the  loss  of  the  bonds,  unless  the  same  resulted  from  their  gross  negli- 
gence, and  they  deny  that  any  such  negligence  is  imputable  to  them. 

On  the  other  hand,  the  plaintiffs  contended  below,  and  repeat  their 
contention  here,  that,  assuming  that  the  defendants  were  in  fact  simply 
gratuitous  bailees  when  the  bonds  were  deposited  with  them,  they  still 
neglected  to  keep  them  with  the  care  which  such  bailees  are  bound  to 
give  for  the  protection  of  property  placed  in  their  custody ;  and  further, 
that  subsequently  the  character  of  the  bailment  was  changed  to  one  for 
the  mutual  benefit  of  the  parties. 


68  ORDINARY   BAILMENTS. 

Much  of  the  argument  of  the  counsel  before  the  court,  and  in  the 
briefs  filed  by  them,  was  unnecessary  —  indeed,  was  not  open  to  con- 
sideration —  from  the  fact  that  the  case  was  heard,  upon  stipulation 
of  parties,  by  the  court  without  the  intervention  of  a  jury,  and  its  special 
findings  cover  all  the  disputed  questions  of  fact.  There  is  in  the  record 
no  bill  of  exceptions  taken  to  rulings  in  the  progress  of  the  trial,  and  the 
correctness  of  the  findings  upon  the  evidence  is  not  open  to  our  con- 
sideration. Rev.  Stat.  §  700.  The  question  whether  the  facts  found 
are  sufficient  to  support  the  judgment  is  the  only  one  of  inquiry  here. 

Undoubtedly,  if  the  bonds  were  received  by  the  defendants  for  safe- 
keeping, without  compensation  to  them  in  any  form,  but  exclusively 
for  the  benefit  of  the  plaintiffs,  the  only  obligation  resting  upon  them 
was  to  exercise  over  the  bonds  such  reasonable  care  as  men  of  common 
prudence  would  usually  bestow  for  the  protection  of  their  own  property 
of  a  similar  character.  No  one  taking  upon  himself  a  duty  for  another 
without  consideration  is  bound,  either  in  law  or  morals,  to  do  more 
than  a  man  of  that  character  would  do  generally  for  himself  under  like 
conditions.  The  exercise  of  reasonable  care  is  in  all  such  cases  the  dic- 
tate of  good  faith.  An  utter  disregard  of  the  property  of  the  bailor 
would  be  an  act  of  bad  faith  to  him.  But  what  will  constitute  such 
reasonable  care  will  vary  with  the  nature,  value,  and  situation  of  the 
property,  the  general  protection  afforded  by  the  police  of  the  community 
against  violence  and  crime,  and  the  bearing  of  surrounding  circum- 
stances upon  its  security.  The  care  usually  and  generally  deemed 
necessary  in  the  community  for  the  security  of  similar  property,  under 
like  conditions,  would  be  required  of  the  bailee  in  such  cases,  but  noth- 
ing more.  The  general  doctrine,  as  stated  by  text  writers  and  in  judi- 
cial decisions,  is  that  gratuitous  bailees  of  another's  property  are  not 
responsible  for  its  loss  unless  guilty  of  gross  negligence  in  its  keeping. 
But  gross  negligence  in  such  cases  is  nothing  more  than  a  failure  to 
bestow  the  care  which  the  property  in  its  situation  demands  ;  the  omis- 
sion of  the  reasonable  care  required  is  the  negligence  which  creates  the 
liability ;  and  whether  this  existed  is  a  question  of  fact  for  the  jury  to 
determine,  or  by  the  court  where  a  jury  is  waived.  See  Steamboat 
New  World  v.  King,  16  How.  469,  474,  475 ;  Railroad  Co.  r.  Lockwood, 
17  Wall,  357,  383;  Milwaukee  &  St.  Paul  Railway  r.  Arms,  91  U.  S. 
489,  494.  The  doctrine  of  exemption  from  liability  in  such  cases  was 
at  one  time  carried  so  far  as  to  shield  the  bailees  from  the  fraudulent 
acts  of  their  own  employees  and  officers,  though  their  employment 
embraced  a  supervision  of  the  property,  such  acts  not  being  deemed 
within  the  scope  of  their  employment. 

Thus,  in  Foster  v.  Essex  Bank,  17  Mass.  479,  the  bank  was  in  such 
a  case  exonerated  from  liability  for  the  property  entrusted  to  it,  which 
had  been  fraudulently  appropriated  by  its  cashier,  the  Supreme  Judicial 
Court  of  Massachusetts  holding  that  he  had  acted  without  the  scope  of 
his  authority,  and,  therefore,  the  bank  was  not  liable  for  his  acts  any 


•  NEGLIGENCE.  69 

more  than  it  would  have  been  for  the  acts  of  a  mere  stranger.  In  that 
case  a  chest  containing  a  quantity  of  gold  coin,  which  was  specified  in 
an  accompanying  memorandum,  was  deposited  in  the  bank  for  safe- 
keeping, and  the  gold  was  fraudulently  taken  out  by  the  cashier  of  the 
bank  and  used.  It  was  held,  upon  the  doctrine  stated,  that  the  bank 
was  not  liable  to  the  depositor  for  the  value  of  the  gold  taken. 

In  the  subsequent  case  of  Smith  v.  First  National  Bank  in  Westfield, 
99  Mass.  605,  611,  the  same  court  held  that  the  gross  carelessness  which 
would  charge  a  gratuitous  bailee  for  the  loss  of  property  must  be  such 
as  would  affect  its  safe-keeping,  or  tend  to  its  loss,  implying  that  liability 
would  attach  to  the  bailee  in  such  cases,  and  to  that  extent  qualifying 
the  previous  decision. 

In  Scott  v.  National  Bank  of  Chester  Valley,  72  Penn.  St.  471,  480, 
the  Supreme  Court  of  Pennsylvania  asserted  the  same  doctrine  as  that 
in  the  Massachusetts  case,  holding  that  a  bank,  as  a  mere  depositary, 
without  special  contract  or  reward,  was  not  liable  for  the  loss  of  a  govern- 
ment bond  deposited  with  it  for  safe-keeping,  and  afterwards  stolen  by 
one  of  its  clerks  or  tellers.  In  that  case  it  was  stated  that  the  teller 
was  suffered  to  remain  in  the  employment  of  the  bank  after  it  was 
known  that  he  had  dealt  once  or  twice  in  stocks,  but  this  fact  was  not 
allowed  to  control  the  decision,  on  the  ground  that  it  was  unknown  to 
the  officers  of  the  bank  that  the  teller  gambled  in  stocks  until  after  he 
had  absconded,  but  at  the  same  time  observing  that :  — 

"  No  officer  in  a  bank,  engaged  in  stock  gambling,  can  be  safely  trusted, 
and  the  evidence  of  this  is  found  in  the  numerous  defaulters,  whose 
speculations  have  been  discovered  to  be  directly  traceable  to  this  species 
of  gambling.  A  cashier,  treasurer,  or  other  officer  having  the  custody 
of  funds,  thinks  he  sees  a  desirable  speculation,  and  takes  the  funds 
of  his  institution,  hoping  to  return  them  instantly,  but  he  fails  in  his 
venture,  or  success  tempts  him  on ;  and  he  ventures  again  to  retrieve 
his  loss,  or  increase  his  gain,  and  again  and  again  he  ventures.  Thus 
the  first  step,  often  taken  without  a  criminal  intent,  is  the  fatal  step, 
which  ends  in  ruin  to  himself  and  to  those  whose  confidence  he  has 
betrayed." 

As  stated  above,  the  reasonable  care  which  persons  should  take  of 
property  entrusted  to  them  for  safe-keeping  without  reward  will  neces- 
sarily vary  with  its  nature,  value,  and  situation,  and  the  bearing  of 
surrounding  circumstances  upon  its  security.  The  business  of  the  bailee 
will  necessarily  have  some  effect  upon  the  nature  of  the  care  required 
of  him,  as,  for  example,  in  the  case  of  bankers  and  banking  institutions, 
having  special  arrangements,  by  vaults  and  other  guards,  to  protect 
property  in  their  custody.  Persons  therefore  depositing  valuable  arti- 
cles with  them,  expect  that  such  measures  will  be  taken  as  will  ordinarily 
secure  the  property  from  burglars  outside  and  from  thieves  within, 
and  that  whenever  ground  for  suspicion  arises  an  examination  will 
be  made  by  them  to  see  that  it  has  not  been  abstracted  or  tampered 


70  ORDINARY    BAILMENTS. 

with ;  and  also  that  they  will  employ  fit  men,  both  in  ability  and  integ- 
rity, for  the  discharge  of  their  duties,  and  remove  those  employed  when- 
ever found  wanting  in  either  of  these  particulars.  An  omission  of  such 
measures  would  in  most  cases  be  deemed  culpable  negligence,  so  gross  as 
to  amount  to  a  breach  of  good  faith,  and  constitute  a  fraud  upon  the 
depositor. 

It  was  this  view  of  the  duty  of  the  defendants  in  this  case,  who  were 
engaged  in  business  as  bankers,  and  the  evidence  of  their  neglect,  upon 
being  notified  of  the  speculations  in  stocks  of  their  assistant  cashier 
who  stole  the  bonds,  to  make  the  necessary  examination  respecting  the 
securities  deposited  with  them,  or  to  remove  the  speculating  cashier, 
which  led  the  court  to  its  conclusion  that  they  were  guilty  of  gross 
negligence.  It  was  shown  that  about  a  year  before  the  assistant  cashier 
absconded,  the  defendant  Kean,who  was  the  chief  officer  of  the  banking 
institution,  was  informed  that  there  was  some  one  in  the  bank  specu- 
lating on  the  Board  of  Trade  at  Chicago.  Thereupon  Kean  made  a 
quiet  investigation,  and  the  facts  discovered  by  him  pointed  to  Ker, 
whom  he  accused  of  speculating.  Ker  replied  that  he  had  made  a  few 
transactions,  but  was  doing  nothing  then  and  did  not  propose  to  do  any- 
thing more,  and  that  he  was  then  about  a  thousand  dollars  ahead,  all 
told.  It  was  not  known  that  Ker  had  any  other  property  besides  his 
salary.  His  position  as  assistant  cashier  gave  him  access  to  the  funds 
as  well  as  the  securities  of  the  bank,  and  he  was  afterwards  kept  in  his 
position  without  any  effort  being  made  on  the  part  of  the  defendants 
to  verify  the  truth  of  his  statement,  or  whether  he  had  attempted  to 
appropriate  to  his  own  use  the  property  of  others. 

Again,  about  two  months  before  Ker  absconded,  one  of  the  defend- 
ants, residing  at  Detroit,  received  an  anonymous  communication, 
stating  that  some  one  connected  with  the  bank  in  Chicago  was  specu- 
lating on  the  Board  of  Trade.  He  thereupon  wrote  to  the  bank,  call- 
ing attention  to  the  reported  speculation  of  some  of  its  employees,  and 
suggesting  inquiry  and  a  careful  examination  of  its  securities  of  all 
kinds.  On  receipt  of  this  communication  Kean  told  Ker  what  he  had 
heard,  and  asked  if  he  had  again  been  speculating  on  the  Board  of 
Trade.  Ker  replied  that  he  had  made  some  deals  for  friends  in  Canada, 
but  the  transactions  were  ended.  The  defendants  then  entered 
upon  an  examination  of  their  books  and  securities,  but  made  no  effort 
to  ascertain  whether  the  special  deposits  had  been  disturbed.  Upon 
this  subject  the  court  below,  in  giving  its  decision,  Prather  r.  Kean,  29 
Fed.  Rep.  498,  after  observing  that  the  defendants  knew  that  Ker  had 
been  engaged  in  business  which  was  hazardous  and  that  his  means  were 
scant,  and  after  commenting  upon  the  demoralising  effect  of  speculating 
in  stocks  and  grain,  as  seen  in  the  numerous  peculations,  embezzlements, 
forgeries,  and  thefts  plainly  traceable  to  that  cause,  and  the  free  access 
by  Ker  to  valuable  securities,  which  were  transferable  by  delivery, 
easily  abstracted  and  converted,  and  yet  his  being  allowed  to  retain  his 


•NEGLIGENCE.  71 

position  without  any  effort  to  see  that  he  had  not  converted  to  his  own 
use  the  property  of  others,  or  that  his  statements  were  correct,  held  that 
it  was  gross  negligence  in  the  defendants  not  to  discharge  him  or  place 
him  in  some  position  of  less  responsibility.  In  this  conclusion  we  fully 
concur. 

The  second  position  of  the  plaintiffs  is  also  well  taken,  that,  assuming 
the  defendants  were  gratuitous  bailees  at  the  time  the  bonds  were  placed 
with  them,  the  character  of  the  bailment  was  subsequently  changed  to 
one  for  the  mutual  benefit  of  the  parties.  It  appears  from  the  findings 
that  the  plaintiffs,  subsequently  to  their  deposit,  had  repeatedly  asked 
for  a  discount  of  their  notes  by  the  defendants,  offering  the  latter  the 
bonds  deposited  with  them  as  collateral,  and  that  such  discounts  were 
made.  When  the  notes  thus  secured  were  paid,  and  the  defendants 
called  upon  the  plaintiffs  to  know  what  they  should  do  with  the  bonds, 
they  were  informed  that  they  were  to  hold  them  for  the  plaintiffs'  use 
as  previously.  The  plaintiffs  had  already  written  to  the  defendants 
that  they  desired  to  keep  the  bonds  for  an  emergency,  and  also  that 
they  wished  at  times  to  overdraw  their  account,  and  that  they  would 
consider  the  bonds  as  security  for  such  overdrafts.  From  these  facts 
the  court  was  of  opinion  that  the  bonds  were  held  by  the  defendants 
as  collateral  to  meet  any  sums  which  the  plaintiffs  might  overdraw; 
and  the  accounts  show  that  they  did  subsequently  overdraw  in  numer- 
ous instances. 

The  deposit,  by  its  change  from  a  gratuitous  bailment  to  a  security 
for  loans,  became  a  bailment  for  the  mutual  benefit  of  both  parties ; 
that  is  to  say,  both  were  interested  in  the  transactions.  For  the  bailor 
it  obtained  the  loans,  and  to  that  extent  was  to  his  advantage ;  and  to 
the  bailee  it  secured  the  payment  of  the  loans,  and  that  was  to  his  ad- 
vantage also.  The  bailee  was  therefore  required,  for  the  protection 
of  the  bonds,  to  give  such  care  as  a  prudent  owner  would  extend  to  his 
own  property  of  a  similar  kind,  being  in  that  respect  under  an  obligation 
of  a  more  stringent  character  than  that  of  a  gratuitous  bailee,  but  dif- 
fering from  him  in  that  he  thereby  became  liable  for  the  loss  of  the 
property  if  caused  by  his  neglect,  though  not  amounting  to  gross 
negligence. 

Two  cases  cited  by  counsel,  one  from  the  Court  of  Appeals  of  Mary- 
land and  the  other  from  the  Court  of  Appeals  of  New  York,  declare  and 
illustrate  the  relation  of  parties  under  conditions  similar  to  those  of 
the  parties  before  us. 

In  the  case  from  Maryland,  Third  National  Bank  v.  Boyd,  44  Mary- 
land, 47,  it  appeared  that  a  firm  by  the  name  of  William  A.  Boyd  &  Co. 
was  a  large  customer  of  the  Third  National  Bank  of  Baltimore,  and  on 
the  5th  day  of  February,  1866,  was  indebted  to  it  in  about  $5000.  Sub- 
sequently, the  senior  member  of  the  firm,  pursuant  to  an  agreement 
between  him  and  the  president  of  the  bank,  deposited  with  the  bank 
certain  bonds  and  stocks  as  collateral  security  for  the  payment  of  all 


72  ORDINARY    BAILMENTS. 

obligations  of  himself  and  of  the  firm  then  existing  or  that  might  be 
incurred  thereafter,  with  the  understanding  that  the  right  to  sell  the 
collaterals  in  satisfaction  of  such  obligations  was  vested  in  the  officers 
of  the  bank.  Some  of  the  bonds  were  subsequently  withdrawn  and 
others  deposited  in  their  place.  While  these  collaterals  were  with  the 
bank,  the  firm  kept  a  deposit  account,  having  an  average  of  about  $4000, 
and  from  time  to  time,  as  it  needed,  obtained  on  the  security  of  the  col- 
laterals discounts  ranging  from  three  to  fifteen  thousand  dollars.  The 
firm  was  not  indebted  to  the  bank  subsequently  to  July,  1872,  when  it 
paid  its  last  indebtedness ;  the  bonds,  however,  were  not  then  with- 
drawn, but  left  in  the  bank  under  the  original  agreement.  In  August, 
1872,  the  bank  was  entered  by  burglars  and  certain  of  the  bonds  were 
stolen.  In  an  action  by  the  senior  partner  against  the  bank  to  recover 
the  value  of  the  bonds  stolen,  it  was  held  :  "First.  That  the  contract 
entered  into  by  the  bank  was  not  a  mere  gratuitous  bailment.  .  .  . 
Third.  That  the  original  contract  of  bailment  being  valid  and  binding, 
the  obligation  of  the  bank  for  the  safe  custody  of  the  deposit  did  not 
cease  when  the  plaintiff's  debt  had  been  paid.  Fourth.  That  the 
defendant  was  responsible  if  the  bonds  were  stolen  in  consequence  of 
its  failure  to  exercise  such  care  and  diligence  in  their  custody  and  keep- 
ing as,  at  the  time,  banks  of  common  prudence  in  like  situation  and 
business  usually  bestowed  in  the  custody  and  keeping  of  similar  prop- 
erty belonging  to  themselves  ;  that  the  care  and  diligence  ought  to  have 
been  such  as  was  properly  adapted  to  the  preservation  and  protection 
of  the  property,  and  should  have  been  proportioned  to  the  consequence 
likely  to  arise  from  any  improvidence  on  the  part  of  the  defendant. 
Fifth.  That  the  proper  measure  of  damages  was  the  market  value  of 
the  bonds  at  the  time  they  were  stolen.  Whether  due  care  and  dili- 
gence have  been  exercised  by  a  bank  in  the  custody  of  bonds  deposited 
with  it  as  collateral  security,  is  a  question  of  fact  exclusively  within 
the  province  of  the  jury  to  decide." 

In  the  case  from  New  York,  Cutting  v.  Marlor,  78  N.  Y.  454,  it  ap- 
peared that  the  defendant,  as  collateral  security  for  a  loan  made  to  him 
by  a  bank,  delivered  to  it  certain  securities,  which  were  taken  and  con- 
verted by  the  president  to  his  own  use.  In  an  action  by  the  receiver  of 
the  bank  to  recover  the  amount  loaned,  it  was  found  that  the  trustees 
of  the  bank  left  the  entire  management  of  its  business  with  the  presi- 
dent and  an  assistant,  styled  manager ;  that  they  received  the  state- 
ments of  the  president  without  question  or  examination  ;  that  they  had 
no  meetings  pursuant  to  the  by-laws,  and  made  no  examination  of  the 
securities,  and  exercised  no  care  or  diligence  in  regard  to  them ;  also, 
that  the  president  had  been  in  the  habit  of  abstracting  securities  and 
using  them  in  his  private  business,  most  of  them  being  returned  when 
called  for ;  and  that  the  manager,  who  had  knowledge  of  this  habit, 
did  not  take  any  means  to  prevent  it,  nor  did  he  notify  the  trustees.  It 
was  held  that  the  bank  was  chargeable  with  negligence,  and  that  the 


NEGLIGENCE.  73 

defendant  was  entitled  to  counter-claim  the  value  of  the  securities ; 
that  the  bailment  was  for  the  mutual  benefit  of  the  parties ;  that  the 
bailee  was  bound,  for  the  protection  of  the  property,  to  exercise  ordinary 
care,  and  was  liable  for  negligence  affecting  the  safety  of  the  collaterals, 
distinguishing  the  case  from  the  liability  of  a  gratuitous  bailee,  which 
arises  only  where  there  has  been  gross  negligence  on  his  part. 

It  follows,  therefore,  that  whether  we  regard  the  defendants  as  gra- 
tuitous bailees  in  the  first  instance,  or  as  afterwards  becoming  bailees 
for  the  mutual  benefit  of  both  parties,  they  were  liable  for  the  loss  of 
the  bonds  deposited  with  them.  And  the  measure  of  the  recovery  was 
the  value  of  the  bonds  at  the  time  they  were  stolen. 

Judgment  affirmed.1 


b.   Burden  of  Proof. 

SANBORN  v.   KIMBALL. 

106  Me.  355  ;   76  Atl.  R.  890  ;    138  Am.  St.  R.  345.     1910. 

Cornish,  J.  Action  on  the  case  for  negligence  in  the  use  and  care 
of  the  plaintiff's  horse  by  the  defendant.  The  jury  returned  a  verdict 
for  the  defendant,  and  the  case  is  before  this  court  on  the  plaintiff's 
motion  to  set  aside  the  verdict  as  against  the  law  and  the  evidence. 

»In  Railroad  Company  v.  Lockwood,  17  Wall.  (U.  S.)  357  (1873),  cited  in  this 
case,  Mr.  Justice  Bradley,  announcing  the  opinion  of  the  Court,  uses  this  language 
(at  p.  382)  :  — 

"We  have  already  adverted  to  the  tendency  of  judicial  opinion  adverse  to  the 
distinction  between  gross  and  ordinary  negligence.  Strictly  speaking,  these  expres- 
sions are  indicative  rather  of  the  degree  of  care  and  diligence  which  is  due  from  a 
party  and  which  he  fails  to  perform,  than  of  the  amount  of  inattention,  carelessness, 
or  stupidity  which  he  exhibits.  If  very  little  care  is  due  from  him,  and  he  fails  to 
bestow  that  little,  it  is  called  gross  negligence.  If  very  great  care  is  due,  and  he  fails 
to  come  up  to  the  mark  required,  it  is  called  slight  negligence.  And  if  ordinary  care 
is  due,  such  as  a  prudent  man  would  exercise  in  his  own  affairs,  failure  to  bestow  that 
amount  of  care  is  called  ordinary  negligence.  In  each  case,  the  negligence,  whatever 
epithet  we  give  it,  is  failure  to  bestow  the  care  and  skill  which  the  situation  de- 
mands ;  and  hence  it  is  more  strictly  accurate  perhaps  to  call  it  simply  '  negligence.' 
And  this  seems  to  be  the  tendency  of  modern  authorities.  (1  Smith's  Leading  Cases, 
453,  7th  American  edition  ;  Story  on  Bailments,  §  571 ;  Wyld  v.  Pickford,  8  Meeson 
&  Welsby  460 ;  Hinton  v.  Dibbin,  2  Queen's  Bench,  661 ;  Wilson  v.  Brett,  11  Meeson 
&  Welsby,  115;  Beal  v.  South  Devon  Railway  Co.,  3  Hurlstone  &  Coltman,  337; 
Grill  v.  Iron  Screw  Collier  Co.,  Law  Reports,  1  Common  Pleas,  600 ;  Philadelphia  & 
Reading  Railroad  Co.  v.  Derby,  14  Howard,  486 ;  Steamboat  New  World  et  al.  v. 
King,  16  Id.  474.)  If  they  mean  more  than  this,  and  seek  to  abolish  the  distinction 
of  degrees  of  care,  skill,  and  diligence  required  in  the  performance  of  various  duties 
and  the  fulfilment  of  various  contracts,  we  think  they  go  too  far  ;  since  the  require- 
ment of  different  degrees  of  care  in  different  situations  is  too  firmly  settled  and  fixed 
in  the  law  to  be  ignored  or  changed.  The  compilers  of  the  French  Civil  Code  under- 
took to  abolish  these  distinctions  by  enacting  that  '  every  act  whatever  of  man  that 
causes  damage  to  another,  obliges  him  by  whose  fault  it  happened  to  repair  it.' 
(Art.  1382.)  Toullier,  in  his  commentary  on  the  code,  regards  this  as  a  happy 
thought,  and  a  return  to  the  law  of  nature.  (Vol.  6,  p.  243.)  But  such  an  iron  rule 
is  too  regardless  of  the  foundation  principles  of  human  duty,  and  must  often  operate 
with  great  severity  and  injustice." 


74  ORDINARY    BAILMENTS. 

The  material  facts  are  not  in  dispute.  In  the  summer  of  1908,  the 
parties  agreed  to  exchange  work  in  haying,  with  teams  and  men.  Under 
that  agreement  the  plaintiff  let  the  defendant  have  the  horse  in  question 
on  August  13th.  On  August  25th  the  plaintiff  went  after  the  horse; 
but,  as  the  defendant  had  not  finished  haying,  it  was  agreed  that  the 
defendant  should  keep  him  another  day  and  return  him  on  the  after- 
noon of  the  26th.  The  defendant  used  the  horse  in  haying  on  the  after- 
noon of  the  25th,  put  him  in  the  barn,  fed  him  about  6.30  P.M.  and  left 
him  for  the  night  unhitched  in  his  sixteen-feet  square  pen  or  box-stall. 
The  next  morning  the  defendant  found  the  horse  in  the  same  place  where 
he  had  left  him  the  night  before  with  a  clean  cut  three  or  three  and  one- 
half  inches  long  and  from  one  to  one  and  one  half  inches  deep  across 
the  upper  part  of  the  off  forward  leg.  The  wound  was  not  bleeding  and 
there  were  no  traces  of  blood  on  the  floor  of  the  barn  or  in  the  stall, 
although  there  were  marks  of  blood  on  a  pail,  as  if  the  wound  had  been 
washed  by  some  one.  The  defendant  testified  that  he  carefully  ex- 
amined the  barn  to  ascertain,  if  possible,  the  cause  of  the  injury,  but 
found  nothing,  and  he  was  entirely  ignorant  as  to  how  the  injury  was 
inflicted,  whether  by  accident  or  design.  The  wound  was  treated  once 
by  the  plaintiff  and  subsequently  by  the  defendant  and  his  hired  man, 
but  after  about  ten  days  death  ensued. 

It  is  settled  in  this  state,  whatever  the  doctrine  may  be  elsewhere, 
that  in  an  action  of  negligence  against  a  bailee,  not  a  common  carrier, 
the  general  burden  of  proving  negligence  rests  upon  the  plaintiff.  If  he 
proves  the  bailment  and  a  failure  to  return  on  demand,  he  has  ordinarily 
made  a  prima  facie  case,  and  it  is  then  incumbent  on  the  bailee  to  ex- 
plain the  cause  of  the  refusal,  as  by  showing  the  loss  of  the  property  by 
fire  or  theft  or  its  injury  by  accident  or  otherwise.  It  then  devolves 
upon  the  plaintiff  to  show  that  such  fire  or  theft  or  accident  was  due  to 
the  failure  of  the  bailee  to  use  such  a  degree  of  care  of  the  property  as 
under  the  circumstances  the  law  requires.  The  final  burden  is  on  the 
bailor  to  prove  negligence,  not  on  the  bailee  to  prove  due  care :  Mills 
v.  Gilbreth,  47  Me.  320,  74  Am.  Dec.  487 ;  Dinsmore  v.  Abbott,  89  Me. 
373,  36  Atl.  621 ;  Buswell  v.  Fuller,  89  Me.  600,  36  Atl.  1059 ;  Brad- 
bury v.  Lawrence,  91  Me.  457,  40  Atl.  332.  The  plaintiff,  however, 
contends  that  it  devolved  upon  the  defendant  to  satisfactorily  explain 
how  the  injury  was  received,  and  in  absence  of  such  satisfactory  expla- 
nation his  liability  follows.  The  law  does  not  require  so  much,  amount- 
ing in  this  case  to  an  impossibility,  because  the  cause  or  source  of  this 
injury  is  admitted  to  be  a  mystery.  If  the  plaintiff's  contention  were 
true,  the  liability  of  the  bailee  in  cases  where  the  causes  of  the  injury 
are  unknown  would  rise  to  that  of  an  insurer.  It  was  only  incumbent 
upon  the  defendant  to  explain  the  circumstances  and  to  give  the  reason 
why  the  horse  was  not  returned  to  the  plaintiff.  He  need  go  no  further. 
This  was  done,  and  it  then  became  the  province  of  the  jury,  under 
proper  instructions,  to  determine  whether  or  not  the  defendant  was 


LIEN.  75 

negligent,  either  in  connection  with  the  injury  or  in  its  subsequent  treat- 
ment. No  exceptions  were  taken  to  the  charge  of  the  presiding  justice, 
so  that  it  may  be  assumed  that  proper  instructions  were  given.  On 
the  facts,  the  jury  have  found  in  favour  of  the  defendant,  and  we  see  no 
reason  to  disturb  their  verdict.  The  matter  was  one  peculiarly  within 
their  experience,  and  their  judgment  upon  such  a  question  should  not 
be  lightly  set  aside.  A  careful  reading  of  the  testimony  in  this  case, 
however,  approves  rather  than  disapproves  their  conclusion. 
Motion  overruled. 


5.   LIEN. 

BURDICT  v.   MURRAY. 
3  Vt.  320  ;   21  Am.  D.  588.     1830. 

This  was  an  action  of  trespass  for 'taking  and  carrying  away  a  quan- 
tity of  sheepskins  and  goatskins.  Plea,  not  guilty.  At  the  trial  in 
the  county  court,  Turner,  J.,  presiding,  it  appeared  in  evidence,  that  a 
contract  had  been  made  between  Allen  Murray  and  Warren  Murray  and 
the  plaintiffs,  by  which  the  Murrays  were  to  furnish  four  thousand 
skins  annually  for  three  years,  to  be  tanned  and  dressed  into  morocco 
by  the  plaintiffs,  and  were  to  pay  the  plaintiffs  therefor  twenty-seven 
and  a  half  cents  for  each  skin.  The  Murrays  were  to  furnish  the  skins 
from  time  to  time  as  the  plaintiffs  might  want  them,  and  the  plaintiffs 
were  to  dress  and  deliver  them  at  their  shop  to  the  Murrays,  finished 
in  a  merchantable  condition,  for  the  price  above  mentioned.  Under 
this  contract  the  skins  in  question  had  been  delivered  to  the  plaintiffs ; 
and  after  they  had  been  partly  dressed,  and  were  in  an  unfinished  state, 
the  said  Allen  and  Warren  Murray  turned  them  out  to  the  defendant, 
Harvey  Murray,  a  creditor,  who  caused  them  to  be  attached  and  taken 
away,  on  a  writ  of  attachment  against  said  Allen  and  Warren.  The 
plaintiffs  contended  they  had  a  lien  on  said  skins  for  the  labour  already 
bestowed  in  dressing  them,  and  other  skins  delivered  on  said  contract, 
and  also  for  the  labour  they  were  thereafter  to  bestow  in  completing 
them. 

Prentiss,  Ch.  J.,  delivered  the  opinion  of  the  Court.  —  It  is  the  better 
opinion,  that  he  who  has  a  special  property  in  goods,  may  have  an 
action  of  trespass  against  him  who  has  the  general  property,  and  upon 
the  evidence  the  damage  shall  be  mitigated.  Thus,  a  bailee  of  a  chattel 
for  a  certain  time,  coupled  with  an  interest,  may  support  the  action 
against  the  bailor  for  taking  it  away  before  the  time.  —  (1  Chit.  PI.  170.) 
There  is  no  doubt,  therefore,  but  that  the  plaintiffs  in  the  case  before 
us,  if  they  had  a  special  property  in  the  skins,  were  entitled  to  maintain 


76  ORDINARY    BAILMENTS. 

this  action,  and  recover  according  to  their  interest,  although  the  skins 
were  turned  out  to  the  defendants,  on  the  writ  of  attachment,  by  Allen 
and  Warren  Murray,  the  owners. 

The  plaintiffs,  under  the  contract  with  the  Murrays,  were  bailees 
having  an  interest,  and  had  a  right  to  retain  the  skins  for  the  purpose 
for  which  they  were  bailed  to  them.  Until  the  skins  were  dressed  and 
made  into  morocco,  the  plaintiffs  were  entitled  to  the  possession  of 
them ;  and  even  then  they  would  have  a  lien  upon  the'  skins  for  the 
price  agreed  to  be  paid  for  their  labour  upon  them.  A  workman  who  has 
bestowed  his  labour  upon  a  chattel,  has  a  lien  for  the  remuneration  due 
to  him,  whether  the  amount  was  fixed  by  the  express  agreement  of  the 
parties  or  not ;  though  it  is  otherwise,  if,  by  the  bargain,  a  future  day 
of  payment  was  agreed  upon,  for  then  the  detention  of  the  chattel  would 
be  inconsistent  with  the  terms  of  the  contract.  —  (Chase  v.  Westmore, 
5  Maule  and  Selw.  180.)  Here  there  was  no  particular  time  or  mode  of 
payment  agreed  upon,  and  if  the  plaintiffs  had  completed  the  manufac- 
ture of  the  skins  according  to  the  agreement,  they  would  have  had  an 
unquestionable  right  to  detain  them  until  the  price  was  paid,  unl. 
they  had  already  in  their  hands  a  balance  sufficient  to  pay  the  price. 
But  the  skins  were  in  an  unfinished  state,  and  the  plaintiffs  had  a  right, 
under  the  contract,  to  retain  them  to  earn  the  price.  If  at  the  time  of 
taking  the  skins,  the  Murrays  had  offered  and  agreed  to  allow  the  plain- 
tiffs the  full  price  stipulated  to  be  paid  for  finishing  them,  out  of  monies 
actually  in  the  plaintiffs'  hands  sufficient  to  pay  the  price,  it  might  have 
been  a  good  defence.  But  as  no  such  offer  appears  to  have  been  made, 
the  evidence  proposed  by  the  defendants  could  not  avail  them. 

Judgment  affirmed. 


ARIANS  v.   BRICKLEY. 

65  Wis.  26;   56  Am.  R.  611.     1885. 

Orton,  J.  The  respondent,  as  plaintiff  in  the  case,  alleged  in  his 
complaint,  substantially,  that  he  was  the  owner  of  mills  for  sawing  lumber 
and  shingles  out  of  logs,  and  engaged  in  using  said  mills  for  such  pur- 
pose;  that  he  was  employed  by  the  defendants  to  saw  lumber  and 
shingles  out  of  their  logs,  delivered  to  him  for  that  purpose,  for  what  it 
was  reasonably  worth;  that  he  sawed  for  the  defendants  many  thou- 
sand feet  of  lumber  and  many  thousand  shingles  out  of  such  logs,  and 
demanded  of  them  what  it  was  reasonably  worth,  which  they  refused 
to  pay,  and  that  he  therefore  retained  the  possession  of  the  same  until 
he  should  be  paid,  and  the  defendants  sought  to  take  the  same  away 
by  force,  and  that  they  are  personally  irresponsible  and  insolvent. 
The  prayer  is  for  an  injunction  against  such  removal,  and  for  the  enforce- 


LIEN.  77 

ment  of  a  common-law  Hen  on  the  same  for  the  amount  to  which  the 
plaintiff  is  entitled. 

The  defendants  substantially  admitted  in  their  answer  such  employ- 
ment as  stated  in  the  complaint,  but  alleged  that  it  was  for  an  agreed 
compensation,  and  set  up  a  failure  to  perform,  and  damages  for  bad 
piling  and  manufacture,  etc.,  and  denied  the  common-law  lien.  On  the 
trial  the  defendants  objected  to  any  evidence  under  the  complaint  on 
the  ground  that  it  stated  no  cause  of  action,  which  objection  was  over- 
ruled. The  plaintiff  then  proved  the  sawing  in  said  mills  of  lumber  out 
of  the  defendants'  logs  so  furnished  by  them,  which  sawing  or  manufac- 
ture was  worth  $1191.21,  without  interest  since  that  time,  but  with 
interest,  $1285.36.  The  defendants  offered  no  evidence,  but  moved  to 
dismiss  the  action  on  the  ground  that  the  plaintiff  had  no  right  to  resort 
to  a  court  of  equity  to  foreclose  a  lien  for  labour  on  logs  and  lumber,  and 
that  he  has  an  adequate  remedy  at  law,  which  motion  was  overruled, 
and  the  circuit  court  rendered  judgment  against  the  defendants  for  the 
amount  last  stated,  and  for  a  lien  on  said  lumber  remaining  in  the 
possession  of  the  said  plaintiff.     This  appeal  is  from  said  judgment. 

The  only  material  question  presented  and  argued  in  the  brief  of  the 
learned  counsel  of  the  appellants  is  whether  the  plaintiff  was  entitled 
to  such  common-law  lien  on  the  lumber  so  manufactured  by  him  out 
of  the  logs  of  and  furnished  by  the  defendants.  The  question  is  divided 
in  the  argument:  (1)  Whether  the  plaintiff  had  a  common-law  lien, 
or  whether  a  common-law  lien  could  be  made  to  embrace  such  manufac- 
ture ;  and  (2)  whether,  if  such  a  lien  could  ever  have  been  enforced  in 
this  state,  the  statute  has  not  abrogated  it. 

1.  The  principle  upon  which  a  common-law  lien  was  anciently  al- 
lowed, and  its  allowance  extended  by  modern  decisions,  would  seem 
to  embrace  such  a  case.  That  principle  is  that  persons  who  have 
bestowed  labour  upon  an  article,  or  done  some  other  act  in  reference  to 
it  by  which  its  value  has  been  enhanced,  have  the  right  to  detain  the 
same  until  they  are  reimbursed  for  their  expenditure  and  labor  (Oakes 
v.  Moore,  24  Me.  214) ;  or  that  every  bailee  for  hire  who,  by  his  labor 
and  skill,  has  imparted  an  additional  value  to  the  goods,  has  a  lien  upon 
the  property  for  his  reasonable  charges  (Grinnell  v.  Cook,  3  Hill,  491) 
[79].  "This  right  rests  on  principles  of  natural  equity  and  commercial 
necessity,  and  it  prevents  circuity  of  action,  and  gives  security  and  con- 
fidence to  agents."  2  Kent's  Comm.  634.  The  extension  of  the  prin- 
ciple to  a  tailor  who  makes  clothing  out  of  cloth  furnished  (Cowper  v. 
Andrews,  Hob.  42),  and  to  a  dyer  who  imparts  colors  to  plain  fabrics 
(Green  v.  Farmer,  4  Burr.  2221),  has  led  to  its  recognition  in  all  cases 
of  a  bailee  for  hire  who  takes  property  in  the  way  of  his  trade  and  occu- 
pation and  by  his  labour  and  skill  imparts  additional  value  to  it.  Bevan 
v.  Waters,  Moody  &  M.  235  ?  Scarfe  v.  Morgan,  4  Mees.  &  W.  283 ; 
Trust  v.  Pirsson,  1  Hilt.  292.  A  lien  was  allowed  to  a  wagon-maker 
who  made  a  wagon  out  of  materials  furnished  by  another  (Gregory  v. 


78  ORDINARY    BAILMENTS. 

Stryker,  2  Denio,  631) ;  and  to  a  carpenter,  upon  doors  made  out  of 
lumber  furnished  by  another  (Curtis  c.  Jones,  1  How.  App.  Cas.  145, 
and  Mclntyre  v.  Carver,  2  Watts  &  S.  392) ;  and  to  a  thresher,  on  grain 
he  threshes  for  another  (Nevan  v.  Roup,  8  Iowa,  207) ;  to  a  raftsman,  on 
the  lumber  he  rafts  for  another  (Farrington  v.  Meek,  30  Mo.  585) ; 
and  to  a  harness  maker,  who  oils  the  harness  of  another  (Wilson  v. 
Martin,  40  N.  H.  88).  Morgan  v.  Congdon,  4  N.  Y.  552,  is  a  case  in 
point  of  a  common-law  lien  on  the  lumber  sawed,  for  the  sawing.  It  is 
claimed  by  the  learned  counsel  of  the  appellants  that  Oakes  v.  Moore, 
supra,  is  in  point  against  such  a  lien ;  but,  in  that  case,  the  retention  of 
possession  necessary  to  a  common-law  lien  was  not  shown,  but,  on  the 
other  hand,  the  possession  had  been  voluntarily  surrendered ;  and 
besides,  in  that  case  the  lien  claimed  was  upon  logs  for  cutting  them 
from  the  land  of  another  and  booming  them,  and  not  for  converting  the 
same  into  lumber.  We  think  it  is  clear,  both  from  principle  and  from 
authority,  that  the  plaintiff  had  a  common-law  lien  on  the  lumber,  so 
long  as  it  remained  in  his  possession,  for  what  it  was  reasonably  worth 
to  convert  the  logs  of  the  defendant  into  it  by  his  labour. 

2.  Has  our  statute  provided  an  exclusive  remedy  in  such  a  case,  or 
abrogated  the  common-law  lien  and  its  enforcement  in  equity  ?  Section 
3341,  R.  S.,  provides  for  a  lien  to  "  any  person  performing  manual  labour 
upon  any  lumber."  But  this  does  not  mean  making  lumber  out  of 
logs  by  sawing.  If  it  does  apply,  then  it  extends  the  common-law 
remedy  to  a  person  who  has  voluntarily  parted  with  the  possession  of 
the  property.  It  is  clear,  however,  that  the  subsequent  section  (3347) 
in  the  same  chapter  does  apply  to  all  cases  of  common-law  lien  of  this 
kind.  That  section  provides  that  every  person  having  a  lien  given  by 
either  of  the  four  last  sections,  "  or  existing  in  favour  of  any  bailee  for 
hire  .  .  .  by  the  common  law,"  may,  if  the  debt  remain  unpaid  for 
three  months,  and  the  value  of  the  property  affected  thereby  does  not 
exceed  one  hundred  dollars,  sell  the  property  at  public  auction,  etc., 
and  notice  of  such  sale  shall  be  given.  Then  it  provides  that  "  if  such 
property  exceed  the  value  of  one  hundred  dollars,  then  such  lien  may  be 
enforced  against  the  same  by  action  in  any  court  having  jurisdiction." 
This  last  clause  applies  to  this  case,  as  the  value  of  the  property  exceeds 
SI 00,  and  affords  an  express  warrant  for  the  common-law  remedy. 
The  first  section  of  Ch.  319,  Laws  of  1882,  extends  the  lien  of  §  3329, 
R.  S.,  to  "labour  and  service  in  sawing  or  manufacturing  into  lumber 
any  logs."  But  the  above  section  (3347,  R.  S.)  is  not  expressly  repealed 
by  said  chapter,  while  other  sections  are  expressly  repealed.  But, 
besides  this,  the  provisions  of  this  chapter  clearly  contemplate  cases 
in  which  the  possession  has  not  been  retained.  It  provides  for  filing 
a  claim  for  a  lien  within  thirty  days  from  the  last  day  of  labour,  and  for 
an  attachment  of  the  property,  as  in  personal  actions,  which  clearly 
implies  that  the  possession  has  been  surrendered,  and  that  subsequent 
purchasers  should  have  at  least  constructive  notice  of  such  lien.     Such 


LIEN.  79 

proceedings  would  be  unnecessary  if  the  lumber  manufactured  remained 
in  the  possession  of  the  lienholder  all  the  time.  But  if  such  a  lien  as  is 
sought  to  be  enforced  in  this  case  might  have  been  enforced  under  that 
chapter,  it  could  not  be  the  exclusive  remedy  by  mere  construction  or 
implication,  unless  such  remedy  is  made  to  apply  strictly  to  a  lien  at 
common  law,  where  the  possession  of  the  lienholder  is  an  essential 
prerequisite.  This  chapter,  in  order  to  repeal  the  common-law  remedy 
by  implication,  must  provide  specifically  for  a  new  remedy  in  such  a 
case.  But,  again,  this  chapter  provides  for  a  lien  in  many  cases  un- 
known to  the  common  law ;  so  there  can  be  no  inference  that  it  was 
intended  to  repeal  the  common-law  remedy.  There  was  no  common- 
law  lien  on  logs  for  the  labour  of  cutting  them.  Oakes  v.  Moore,  24  Me. 
214.  The  rules  of  the  common  law  are  not  to  be  changed  by  doubtful 
implication.  Meek  v.  Pierce,  19  Wis.  300.  We  are  satisfied  that  the 
common-law  lien  and  remedy,  in  such  a  case,  are  not  abrogated  by  the 
statute.  The  court  having  jurisdiction,  as  provided  in  the  last  clause 
of  §  3347,  may  well  be  the  court  of  chancery,  for  the  remedy  in  such 
cases  was  always  in  that  court.  4  Kent's  Comm.  643  ;  Black  v.  Bren- 
nan,  5  Dana,  311  ;  and  other  cases  cited  in  the  brief  of  the  learned 
counsel  for  the  respondent. 

The  other  exceptions  appearing  on  the  record  were  clearly  not  well 
taken. 

By  the  Court.  —  The  judgment  of  the  circuit  court  is  affirmed. 


GRINNELL  v.   COOK. 

3  Hill  (N.  Y.  S.  C.)  485 ;   38  Am.  Dec.  663.     1842. 

Error  to  the  Onondaga  C.  P.  On  appeal  from  the  judgment  of  a 
justice  of  the  peace  to  the  C.  P.  the  case  was  this  :  Grinnell  brought  an 
action  on  the  case  against  Cook,  who  was  a  deputy  sheriff,  for  taking 
and  selling  five  horses  on  an  execution  against  William  Tyler,  with- 
out paying  the  plaintiff's  bill  for  keeping  the  horses.  The  plaintiff  was 
an  innkeeper  in  the  village  of  Orville.  Tyler  lived  in  the  same  village, 
about  forty  rods  from  the  plaintiff.  Tyler  put  three  of  the  horses  in 
the  plaintiff's  stable,  where  they  remained  most  of  the  time,  and  were 
taken  care  of  by  the  plaintiff  from  the  20th  of  November  to  the  27th  of 
December;  and  two  other  horses  were  put  in  the  plaintiff's  stables 
on  the  9th,  and  remained  there  until  the  27th  of  December,  when  the 
defendant  took  and  sold  all  the  horses  on  an  execution  against  Tyler, 
without  paying  the  plaintiff's  bill  for  the  keeping,  which  amounted  to 
about  $40.  The  defendant  had  notice  that  the  plaintiff  claimed  pay 
for  the  keeping,  and  disregarded  the  claim.     The  witness  who  proved 


80  ORDINARY    BAILMENTS. 

the  plaintiff's  case  said  that  Tyler  had  a  barn  on  his  place,  and  kept 
his  horses  there  frequently.  .  .  .  On  this  case  the  plaintiff  was  non- 
suited by  the  court  of  common  pleas ;  and,  after  judgment,  sued  out 
a  writ  of  error. 

Bronson,  J.     [A  portion  of  the  opinion  in  which  it  is  held  that  the 
plaintiff  has  no  lien  as  innkeeper,  Tyler  not  being  a  guest,  is  omitted.] 

The  right  of  lien  has  always  been  admitted  where  the  party  was 
bound  by  law  to  receive  the  goods ;  and  in  modern  times  the  right  has 
been  extended  so  far  that  it  may  now  be  laid  down  as  a  general  rule, 
that  every  bailee  for  hire  who  by  his  labour  and  skill  has  imparted  an 
additional  value  to  the  goods,  has  a  lien  upon  the  property  for  his  rea- 
sonable charges.  This  includes  all  such  mechanics,  tradesmen,  and 
laborers  as  receive  property  for  the  purpose  of  repairing,  or  otherwise 
improving  its  condition.  But  the  rule  does  not  extend  to  a  livery  stable 
keeper,  for  the  reason  that  he  only  keeps  the  horse,  without  imparting 
any  new  value  to  the  animal.  And  besides,  he  does  not  come  within 
the  policy  of  the  law,  which  gives  the  lien  for  the  benefit  of  trade.  Upon 
the  same  reasons  the  agister  or  farmer  who  pastures  the  horses  or  cattle 
of  another  has  no  lien  for  their  keeping,  unless  there  be  a  special  agree- 
ment to  that  effect.  This  doctrine  was  laid  down  in  Chapman  v.  Allen, 
(Cro.  Car.  271).  And  in  York  v.  Grenaugh  (2  Ld.  Raym.  868),  Lord 
Holt  said,  a  livery  stable  keeper  had  no  lien.  (See  the  remarks  of  Lord 
Lyndhurst,  C.  B.,  upon  this  case  in  Judson  v.  Etheridge,  Cromp.  & 
Mees.  743.)  I  am  not  aware  that  this  rule  has  ever  been  departed 
from,  though  it  has  been  suggested  that  it  would  be  well  enough  to  place 
the  livery  man  on  the  same  footing  with  other  persons  who  bestow  their 
labour  and  care  upon  the  property  entrusted  to  their  keeping.  (Cowen's 
Tr.  299,  2d  ed.)  But  the  question  has  recently  undergone  a  good  deal 
of  discussion  in  England,  and  the  result  is  that  the  old  cases  remain 
unshaken,  and  it  must  now  be  regarded  as  the  settled  doctrine  that 
agisters  and  livery  stable  keepers  have  no  lien,  unless  there  be  a  special 
contract  to  that  effect.  (Wallace  v.  Woodgate,  1  Car.  &  Payne,  575 ; 
Ry.  &  Moody,  193,  S.  C. ;  Bevan  v.  Waters,  3  Car.  &  Payne,  520 ; 
Judson  v.  Etheridge,  1  Cromp.  &  Mees.  743 ;  Jackson  v.  Cummins,  5 
Mees.  &  Wels.  342.  And  see  Jacobs  v.  Latour,  5  Bing.  130 ;  2  Moore 
&  Payne,  201,  S.  C. ;  Saunderson  v.  Bell,  2  Mees.  &  Wels.  304 ;  Scarf e 
v.  Morgan,  4  id.  270.)  It  will  be  seen  from  the  cases  which  have  been 
mentioned,  that  a  distinction,  in  relation  to  the  question  of  lien,  has  been 
taken  between  the  mere  keeper  and  the  trainer  of  a  horse ;  and  it  is 
said  that  the  latter  has  a  lien,  because  he  has  done  something  for  the 
improvement  of  the  animal.1  And  in  Judson  v.  Etheridge,  it  was  sug- 
gested by  Bolland,  B.  that  the  doctrine  might,  perhaps,  be  extended  to 
the  case  of  a  breaker  who  takes  a  young  horse  to  be  broken,  on  the  ground 
that  he  makes  it  a  different  animal  from  what  it  was  before,  and  im- 
proves the  animal  by  the  application  of  labour  and  skill.  On  the  same 
1  Accord,  Forth  v.  Simpson,  13  Q.  B.  680  (1849). 


LIEN.  81 

principle  it  has  been  held,  that  if  a  farmer  or  stable  keeper  receive  a  mare 
for  the  purpose  of  being  covered  by  his  stallion,  he  has  a  specific  lien 
for  the  charge  of  covering.  Whether  these  distinctions  were  well 
taken  or  not,  they  shew  that  the  courts  have  steadily  adhered  to  the 
rule  that  one  who  merely  provides  food  and  takes  the  care  of  an  animal, 
as  an  agister  or  livery  stable  keeper,  has  no  lien  except  by  contract. 

There  is  a  further  reason  why  there  can  be  no  lien  in  these  cases. 
When  horses  are  kept  at  livery,  the  owner  takes  and  uses  them  at  pleas- 
ure, and  the  bailee  only  has  a  lien  so  long  as  he  retains  the  uninterrupted 
possession.  If  the  owner  gets  the  property  into  his  hands  without 
fraud,  the  lien  is  at  an  end,  and  it  will  not  be  revived  by  the  return  of 
the  goods.  (Bevan  v.  Waters,  3  Car.  &  Payne,  520 ;  Jones  v.  Thurloe, 
8  Mod.  172;  Jones  v.  Pearle,  1  Str.  556;  Sweet  v.  Pym,  1  East,  4.) 
So  in  the  case  of  milch  cows,  the  agister  has  no  lien,  for  the  reason  that 
the  owner  has  occasional  possession  for  the  purpose  of  milking  them. 
(Jackson  v.  Cummins,  5  Mees.  &  Wels.  342  ;  Cross  on  Lien,  25,  36,  332.) 
Now  here,  from  the  nature  of  the  case,  the  plaintiff  was  not  to  have 
the  continued  and  exclusive  possession  of  the  horses,  but  Tyler  was  at 
liberty  to  take  and  use  them  when  he  pleased,  and  he  did  in  fact  take 
them  at  pleasure.  The  witness  says  he  does  not  know  that  the  plaintiff 
was  at  home  when  Tyler  took  the  horses,  but  there  was  no  pretence  that 
they  were  taken  by  fraud,  or  against  the  will  of  the  plaintiff. 

The  plaintiff  cannot  stand  upon  any  better  footing  than  a  livery 
stable  keeper,  and  as  such  he  has  no  lien. 

Judgment  affirmed. 


WILLIAMS  v.   ALLSUP. 
Common  Pleas.     10  C.  B.  N.  S.  417  ;  100  Eng.  C.  L.  417.     1861. 

Erle,  C.  J.  This  is  an  action  by  the  mortgagee  of  a  steam-vessel 
against  a  shipwright  who  had  done  certain  repairs  on  the  vessel  at  the 
request  of  the  mortgagor,  who  had  been  allowed  to  be  in  the  posses- 
sion and  apparent  ownership.  The  defendant  claims  a  lien  upon  the 
ship  for  the  price  of  these  repairs  :  and  I  am  of  opinion  that  that  claim 
is  well  founded.  There  is,  it  seems,  no  authority  to  be  found  bearing 
on  the  question,  though  I  presume  it  must  have  arisen  many  times. 
I  should  rather  expect  that  it  had  never  been  made  the  subject  of  liti- 
gation because  the  right  of  lien  has  always  been  admitted  to  attach. 
I  put  my  decision  on  the  ground  suggested  by  Mr.  Mellish,  viz.  that  the 
mortgagee  having  allowed  the  mortgagor  to  continue  in  the  apparent 
ownership  of  the  vessel,  making  it  a  source  of  profit  and  a  means  of 
earning  wherewithal  to  payoff  the  mortgage-debt,  the  relation  so  created 


82  ORDINARY   BAILMENTS. 

by  implication  entitles  the  mortgagor  to  do  all  that  may  be  necessary 
to  keep  her  in  an  efficient  state  for  that  purpose.  The  case  states  that 
the  vessel  had  been  condemned  as  unseaworthy  by  the  government 
surveyor,  and  so  was  in  a  condition  to  be  utterly  unable  to  earn  freight  or 
to  be  an  available  security  or  any  source  of  profit  at  all.  Under  these 
circumstances,  the  mortgagor  did  that  which  was  obviously  for  the 
advantage  of  all  parties  interested :  he  puts  her  into  the  hands  of  the 
defendant  to  be  repaired ;  and,  according  to  all  ordinary  usage,  the 
defendant  ought  to  have  a  right  of  lien  on  the  ship,  so  that  those  who 
are  interested  in  the  ship,  and  who  will  be  benefited  by  the  repairs, 
should  not  be  allowed  to  take  her  out  of  his  hands  without  paying  for 
them.  The  70th  section  of  the  Merchant  Shipping  Act,  17  &  18  Vict, 
c.  104,  does  not  appear  to  me  at  all  to  interfere  with  this  view.  It  does 
not  to  my  mind  establish  the  right  of  the  mortgagee  to  the  possession 
of  the  ship,  or  negative  the  lien  of  the  person  doing  the  repairs.  That 
section  enacts  that  "a  mortgagee  shall  not  by  reason  of  his  mortgage 
be  deemed  to  be  the  owner  of  a  ship  or  any  share  therein,  nor  shall 
the  mortgagor  be  deemed  to  have  ceased  to  be  the  owner  of  such 
mortgaged  ship  or  share,  except  in  so  far  as  may  be  necessary  for  making 
such  ship  or  share  available  as  a  security  for  the  mortgage-debt."  The 
implication  upon  which  I  found  my  judgment  is  quite  consistent  with 
that  provision.  The  vessel  has  been  kept  in  a  state  to  be  available  as 
a  security  to  the  mortgagee,  by  her  destruction  being  prevented  b}7  the 
repairs  which  the  defendant  has  done  to  her.  I  think  there  is  nothing 
in  the  92d  section  to  affect  this  question.  There  is,  no  doubt,  some  diffi- 
culty in  the  case.  But  it  is  to  be  observed  that  the  money  expended  in 
repairs  adds  to  the  value  of  the  ship ;  and,  looking  to  the  rights  and 
interests  of  the  parties  generally,  it  cannot  be  doubted  that  it  is  much 
to  the  advantage  of  the  mortgagee  that  the  mortgagor  shall  be  held  to 
have  power  to  confer  a  right  of  lien  on  the  ship  for  repairs  necessary  to 
keep  her  seaworthy.  For  these  reasons,  I  am  of  opinion  that  the  defend- 
ant is  entitled  to  judgment. 

[Other  opinions  omitted.]  Judgment  for  the  defendant 


SARGENT  v.   USHER. 

55  N.  H.  287  ;   20  Am.  R,  208.     1875. 

[Action  of  trover  for  two  horses,  brought  to  the  plaintiff's  barn  in 
Nashua,  N.  H.,  by  one  Robinson,  and  there  kept  and  cared  for  by 
plaintiff  under  a  contract  with  said  Robinson,  until  they  were  seized 
and  taken  from  plaintiff's  possession  by  defendant  claiming  right  of 
possession  as  mortgagee  under  a  chattel  mortgage  previously  given  on 


LIEN.  83 

the  same  horses  by  Robinson  while  he  had  them  in  his  possession  at 
Maiden,  Mass.,  the  mortgage  being  there  duly  recorded.  Plaint  id' 
claimed  that  he  was  entitled  to  a  lien  on  the  horses  for  their  keep,  by  a 
statute  referred  to  in  the  court's  opinion.  There  was  a  verdict  for 
plaintiff.     Case  reserved  for  opinion  of  the  court  on  exceptions.] 

Ladd,  J.  The  general  property  in  the  horses,  carrying  with  it  the 
right  of  possession,  was  in  the  defendant  by  virtue  of  the  mortgages, 
subject  of  course  to  the  right  of  redemption  in  Robinson  —  Leach  v. 
Kimball,  34  N.  H.  568,  Brackett  v.  Bullard,  12  Met.  308,  4  Kent's  Com. 
138,  and  Bank  v.  Jones,  4  N.  Y.  497 ;  and  it  is  clear  that,  so  far  as 
regards  any  supposed  power  of  the  mortgagor  to  defeat  this  right  of 
possession,  and,  in  effect,  abrogate  this  right  of  property  by  subjecting 
it  to  a  lien,  he  stands  in  no  different  position  from  that  of  a  bailee.  The 
only  question  in  the  case,  then,  appears  to  be,  whether  the  statute 
giving  them  a  lien  for  the  agisting  of  cattle,  &c,  is  capable  of  such  a 
construction  as  will  permit  any  one  having  in  his  possession  the  animals 
of  another  to  subject  them  to  a  lien  for  their  keeping  as  against  the 
owner,  without  his  knowledge,  acquiescence,  or  consent,  express  or 
implied.     And  I  am  of  the  opinion  that  it  is  not. 

The  act  provides  that  "any  person,  to  whom  any  horses,  cattle, 
sheep,  or  other  domestic  animals  shall  be  entrusted  to  be  pastured  or 
boarded,  shall  have  a  lien  thereon  for  all  proper  charges  due  for  such 
pasturing  or  board,  until  the  same  shall  be  paid  or  tendered."  Gen. 
Stats.,  ch.  125,  §  2. 

Now,  if  the  whole  construction  of  this  act  be  made  to  turn  on  the 
word  "entrusted,"  it  undeniably  follows  that  it  makes  no  difference 
how  the  person  entrusting  animals  to  be  boarded  or  pastured  came 
by  them,  nor  what  his  right  to  them  is.  A  thief,  a  bailee,  and  an  abso- 
lute owner  are  in  this  respect  all  put  on  the  same  footing.  A  sale  of 
stolen  goods  by  the  thief  passes  no  title  against  the  owner,  and  the  same 
is  in  general  true  with  respect  to  a  sale  by  a  bailee,  unless  he  has  been 
so  clothed  with  the  indicia  of  title  by  the  owner,  or  held  out  as  author- 
ised to  sell  in  such  way  that  the  loss  ought  by  reason  of  his  own  acts 
to  fall  upon  the  owner  rather  than  on  an  innocent  purchaser.  The 
maxim,  Nemo  plus  juris  in  alium  transferre  potest  quam  ipse  habet,  is 
one  of  very  general  application,  and  the  rule  in  this  country,  to  which 
of  course  there  are  exceptions,  is,  that  the  title  of  the  true  owner  can- 
not be  lost  without  his  own  free  act  and  consent.  2  Kent's  Com.  324  ; 
Kingsbury  v.  Smith,  13  N.  H.  109 ;  Hyde  v.  Noble,  13  N.  H.  494 ;  Far- 
lay  v.  Lincoln,  51  N.  H.  580 ;  —  and  see  quite  a  forcible  discussion  of 
the  whole  subject  by  Senator  Verplanck,  in  Saltus  v.  Everett,  20  Wend. 
267. 

The  idea  that  a  lien  may  be  created  by  a  contract  of  the  possessor 
of  animals  for  their  keeping,  the  owner  being  in  no  way  privy  to  such 
contract,  when  no  rights  whatever,  as  against  the  owner,  could  be 
conferred  or  created  by  a  contract  of  sale,  seems  anomalous,  to  say  the 


84  ORDINARY    BAILMENTS. 

least.  Such  a  thing  would,  as  it  seems  to  me,  be  a  violation  of  the  fun- 
damental rights  of  property  guaranteed  by  the  constitution ;  and  if  the 
legislature  had  undertaken  by  this  act  to  create  a  lien,  to  arise  on  such 
a  state  of  facts,  I  think  it  would  be  the  duty  of  the  court,  as  more  than 
intimated  by  Foster,  J.,  in  Jacobs  v.  Knapp,  50  N.  H.  82,  to  hold  the 
act,  so  far,  unconstitutional  and  void. 

But  I  do  not  think  any  such  intention  is  to  be  found  in  the  statute. 
In  giving  this  specific  lien  I  think  the  legislature  used  the  word  in  its 
legal  and  generally  accepted  sense,  and  that  implies  some  privity  be- 
tween the  owner,  or  person  having  the  right  of  disposing  of  the  goods, 
and  him  in  whose  favour  the  lien  is  claimed ;  and  that  by  "entrusted" 
is  meant  entrusted  by. the  owner  or  other  person  having  authority  to 
pledge  the  animals  for  such  a  purpose,  —  that  is,  to  suspend  the  owner's 
right  of  possession  until  the  charges  are  paid. 

Cases  where  it  has  been  held  that  a  common  carrier,  who  innocently 
receives  goods  from  a  wrongdoer,  without  the  consent  of  the  owner, 
express  or  implied,  has  no  lien  upon  them  for  their  carriage  as  against 
such  owner,  seem  to  cover  the  whole  ground  and  more.  2  Redf .  Railw. 
171 ;  Robinson  v.  Baker,  5  Cush.  137  [852] ;  Stevens  v.  B.  &  W.  Rail- 
road, 8  Gray  262.  The  recent  English  case  of  Threfall  v.  Boswick,  Law 
Rep.,  7  Q.  B.  711  [subsequently  affirmed  in  Exchequer  Chamber,  L.  R. 
10  Q.  B.  210],  has  reference  to  an  innkeeper's  lien,  and,  in  my  judg- 
ment, is  not  applicable  to  the  case  before  us  here. 

The  whole  reasoning  of  Foster,  J.,  in  the  carefully  considered  opinion 
of  the  court  delivered  by  him  in  Jacobs  v.  Knapp,  is  against  the  position 
of  this  plaintiff ;  and  that  case  must,  as  it  seems  to  me,  be  regarded  as 
quite  a  direct  authority  upon  the  question  raised  in  the  present. 

Upon  these  views  it  is  obvious  that  the  plaintiff  is  not  entitled  to 
recover,  upon  the  facts  stated  in  the  case ;  and  the  ruling  and  charge 
of  the  court,  under  which  his  right  to  recover  was  made  to  depend 
upon  whether  or  not  the  horses  were  entrusted  to  him  to  be  boarded, 
without  reference  either  to  the  defendant's  right  and  interest  in  them 
as  mortgagee,  or  the  nature  and  extent  of  Robinson's  right  and  title, 
cannot  be  sustained. 

[Other  opinions  omitted.]  Judgment  for  the  defendant. 


CASE  v.   ALLEN. 

21  Kan.  217 ;   30  Am.  R.  425.     1878. 

Replevin,  brought  by  Allen,  against  R.  Case,  to  recover  possession 
of  certain  cattle.  R.  Case  died  before  a  trial  was  had,  and  F.  S.  Case, 
his  administrator,  was  substituted  in  said  cause.  The  district  court, 
at  April  Term,  1877,  gave  judgment  in  favour  of  plaintiff,  and  Case, 


LIEN.  85 

defendant,  brings  the  case  here  on  error.     The  facts  are  fully  stated 
in  the  opinion,  infra. 

Brewer,  J.  October  25,  1875,  one  Forseman  sold  certain  cattle 
to  P.  S.  Roberts,  and,  to  secure  the  payment,  took  a  chattel  mortgage 
on  the  cattle.  This  mortgage  was  filed  for  record  in  the  office  of  the 
register  of  deeds  of  Morris  county,  November  2,  1875.  The  stipula- 
tion in  the  mortgage  was:  — 

"  That  if  default  shall  be  made  in  the  payment  of  said  sum  of  money, 
or  any  part  thereof,  or  of  the  interest  due  thereon  at  the  time  or  times 
when  by  the  condition  of  said  obligation  the  same  shall  become  payable, 
or  if  the  said  party  of  the  second  part  shall  at  any  time  deem  himself 
insecure,  then  and  thenceforth  it  shall  be  lawful  for  the  said  party  of  the 
second  part,  his  executors,  administrators  or  assigns,  or  any  authorised 
agent,  to  enter  upon  the  premises  of  the  said  party  of  the  first  part,  or 
any  other  place  or  places  where  said  goods  and  chattels  aforesaid  may 
be,  to  remove  and  dispose  of  the  same,  and  all  the  equity  of  redemp- 
tion of  the  said  party  of  the  first  part,  at  public  auction  or  at  pri- 
vate sale,  to  the  person  or  persons  who  shall  offer  the  highest  price  for 
the  same.  After  satisfying  the  aforesaid  debt  and  interest  thereon, 
and  all  the  necessary  and  reasonable  costs,  charges,  and  expenses  in- 
curred, including  reasonable  attorneys'  fees,  out  of  the  proceeds  of  said 
sale,  he  shall  return  the  surplus  to  the  said  party  of  the  first  part,  or  his 
legal  representatives ;  and  if  from  any  cause  said  property  shall  fail  to 
satisfy  said  debt  and  interest  aforesaid,  said  party  of  the  first  part 
hereby  agrees  to  pay  the  deficiency  ;  and  until  default  be  made,  as  afore- 
said, or  until  such  time  as  the  said  party  of  the  second  part  shall  deem 
himself  insecure,  as  aforesaid,  the  said  party  of  the  first  part  shall  con- 
tinue in  the  peaceable  possession  of  all  the  said  goods  and  chattels,  all 
of  which,  in  consideration  thereof,  he  engages  shall  be  kept  in  as  good 
condition  as  the  same  now  are,  and  taken  care  of  at  his  proper  cost  and 
expense." 

Roberts,  during  November  (the  exact  time  in  the  month  not  appear- 
ing), turned  the  cattle  over  to  defendant  in  error  to  winter,  at  an  agreed 
price  of  five  dollars  per  head.  Defendant  in  error  was  a  farmer,  and 
engaged  in  the  business  of  pasturing  and  feeding  cattle.  He  kept  the 
cattle  until  spring,  under  such  contract.  In  the  spring,  Forseman,  the 
mortgagee,  indorsed  the  notes  and  assigned  the  mortgage  securing  them, 
to  the  intestate  of  plaintiff  in  error,  who  immediately  took  possession 
of  the  cattle  without  paying  for  their  wintering.  Defendant  in  error 
thereupon  commenced  this  action.  Upon  the  trial  the  district  court 
instructed  the  jury  that  — 

"  If  they  found  from  all  the  evidence  that  said  Roberts,  after  making 
said  chattel  mortgage,  turned  over  said  Allen  said  cattle  to  winter,  and 
agreed  to  pay  him  for  such  wintering  the  sum  of  five  dollars  per  head, 
and  that  said  Allen  did  take  possession  of  said  cattle  and  winter  the 
same  in  accordance  with  his  contract,  then  he  would  be  entitled  to  a 


86  ORDINARY    BAILMENTS. 

lien  upon  said  cattle  for  the  amount  due  him  for  the  wintering  and 
keeping  the  same,  and  would  be  entitled  to  the  possession  of  the  same 
until  such  lien  was  satisfied ;  and  if  they  so  found,  and  further  found, 
that  Allen  has  never  been  paid  the  amount  due  for  such  wintering 
and  keeping,  and  that  he  did  not  willingly  give  up  the  possession  of  the 
same,  but  that  the  same  were  forcibly  taken  from  his  possession  without 
his  consent  by  the  said  R.  Case,  he  would  be  entitled  to  recover  in  this 
action  —  unless,  however,  they  found  that  Allen  looked  to  Roberts 
alone  for  his  pay,  and  not  to  the  cattle.  But  any  agreement  between 
Roberts  and  Forseman,  that  Roberts  should  keep  said  cattle  without 
expense  to  him  (Forseman),  would  not  be  binding  upon  Allen  unless 
he  knew  of  such  agreement,  and  assented  thereto." 

This  instruction  presents  the  substantial  question  in  the  case.  By 
it  the  lien  of  the  mortgage  was  subordinated  to  the  lien  of  the  agister. 
Was  this  error  ? 

All  parties  were  residents  of  Morris  county,  and  chargeable  with  notice 
of  the  chattel  mortgage  from  the  time  of  filing ;  to  wit,  November  2, 
1875.  The  lien  of  the  mortgagee  was  prior  in  time,  was  created  by 
contract,  while  that  of  the  agister,  later  in  time,  arises  out  of  the  statute. 
Though  the  amount  in  controversy  is  small,  yet  the  question  is  of  some 
importance.  It  affects  a  great  many  of  the  smaller  transactions  of  busi- 
ness. A  buggy  is  taken  to  a  shop  for  repairs ;  a  horse  is  driven  to  a 
livery  stable  and  left  over  night ;  a  traveller  brings  his  trunk  and  stops 
at  a  hotel :  in  all  these  cases  a  lien  is  given  by  statute.  Suppose  a  prior 
chattel  mortgage  exists :  must  the  statutory  lien  give  way  to  the  prior 
contract  lien  ?  Must  a  mechanic,  a  livery  stable  or  hotel  keeper,  al- 
ways examine  the  register's  office  to  see  whether  there  be  a  chattel  mort- 
gage upon  the  property  before  receiving  it  for  repairs  or  keeping  ?  But 
the  question  is  not  free  from  difficulty ;  for  can  the  value  of  a  contract 
lien  be  diminished  by  any  act  of  the  promisor  ?  Can  he  who  has  prom- 
ised that  the  property  shall  to  the  extent  of  its  value  be  security  to  the 
mortgagee  for  a  certain  debt,  subsequently  cast  upon  it  a  lien  which  shall 
take  precedence  of  his  prior  contract,  and  to  that  extent  diminish  the 
value  of  the  mortgagee's  security  ?  It  will  be  conceded  that  no  subse- 
quent contract  lien  can  be  placed  upon  the  property  to  take  precedence 
of  the  prior  chattel  mortgage,  and  to  that  effect  is  the  case  of  Bissell  v. 
Pearce,  28  N.  Y.  252.  But  we  think  that  the  district  court  rightly  held 
that  the  agister's  lien  was  paramount  to  the  mortgage.  The  express 
stipulation  in  the  mortgage,  that  the  keeping  of  the  mortgaged  property 
should  be  at  the  expense  of  the  mortgagor,  is  no  more  than  the  law 
would  imply  in  the  absence  of  any  express  agreement.  The  mortgagor 
retaining  possession  must  of  course  pay  the  expenses  of  the  keeping. 
He  is  not  simply  an  agent  of  the  mortgagee.  He  can  make  no  contract 
on  behalf  of,  or  which  will  create  any  liability  against,  the  mortgagee : 
he  acts  on  his  own  behalf.  He  is  the  owner,  with  the  duties  of  owner 
and  the  powers  of  owner,  except  as  limited  by  the  restrictions  of  the 


LIEN.  87 

mortgage.     Unless  the  mortgagee,  by  express  contract,  assumes  the 
expense  of  the  keeping  of  the  property,  it  rests  upon  him. 

Now  the  lien  of  the  agister  is  not  the  mere  creature  of  contract : 
it  is  created  by  statute  from  the  fact  of  the  keeping  of  the  cattle.  The 
possession  of  the  agister  was  rightful,  and  the  possession  being  rightful, 
the  keeping  gave  rise  to  the  lien  ;  and  such  keeping  was  as  much  for  the 
interest  of  the  mortgagee  as  the  mortgagor.  The  cattle  were  kept 
alive  thereby ;  and  the  principle  seems  to  be,  that  where  the  mort- 
gagee does  not  take  the  possession,  but  leaves  it  with  the  mortgagor,  he 
thereby  assents  to  the  creation  of  a  statutory  lien  for  any  expenditure 
reasonably  necessary  for  the  preservation  or  ordinary  repair  of  the 
thing  mortgaged.  Such  indebtedness  really  inures  to  his  benefit. 
The  entire  value  of  his  mortgage  may  rest  upon  the  creation  of  such  in- 
debtedness and  lien,  as  in  the  case  at  bar,  where  the  thing  mortgaged 
is  live  stock,  and  the  lien  for  food. 

And  while  it  seems  essential  that  this  should  be  the  rule,  to  protect 
the  mechanic  or  other  person  given  by  statute  a  lien  upon  chattels  for 
labour  or  material,  the  rule,  on  the  other  hand,  will  seldom  work  any 
substantial  wrong  to  the  mortgagee.  The  amount  due  under  such 
liens  is  generally  small  —  a  mere  trifle  compared  with  the  value  of  the 
thing  upon  which  the  lien  is  claimed.  The  work  or  material  enhances 
or  continues  the  value  of  that  upon  which  the  work  is  done  or  to  which 
the  material  is  furnished ;  and  the  mortgagee  can  always  protect  him- 
self against  such  liens,  or,  at  least,  an  accumulation  of  debt  thereon, 
by  taking  possession  of  the  chattel  mortgaged. 

Authorities  directly  in  point  are  perhaps  few,  yet  the  following  seem 
to  bear  more  or  less  directly  on  the  question :  in  Johnson  v.  Hill,  3 
Starkie,  172,  it  appeared  that  one  who  had  obtained  wrongful  posses- 
sion of  a  horse  took  it  to  a  livery  stable  keeper,  and  left  it,  and  it  was 
held  that  a  lien  existed  in  favour  of  the  latter  against  the  owner.  In 
Williams  v.  Allsup,  100  Eng.  C.  L.,  p.  416  [81],  a  shipwright  who  had 
done  repairs  on  a  vessel  at  the  instance  of  the  mortgagor,  was  given  a 
lien  paramount  to  that  of  the  prior  mortgage  ; ,  and  the  same  conclusion 
was  reached  in  the  case  of  Scott,  et  al.,  v.  Delahunt,  5  Lansing,  372, 
in  which  the  court,  referring  to  and  distinguishing  the  case  of  Bissell  r. 
Pearce,   supra,   uses   this   language :  — 

"The  decision  in  that  case  is  no  authority  against  the  rights  of  the 
plaintiffs  to  enforce  their  lien  which  the  law  gives,  and  which  does  not 
rest  in  contract  with  the  mortgagor.  I  am  clearly  of  the  opinion,  in  a 
case  like  this,  where  the  repairs  are  necessary  for  the  preservation  of  the 
property,  and  the  law  gives  the  lien,  the  mechanic  may  lawfully  retain 
possession  and  enforce  his  lien  by  action  if  the  charges  for  repairs  are 
not  paid,  even  against  a  mortgagee  claiming  under  a  prior  mortgage." 

In  the  late  work  of  Herman  on  Chattel  Mortgages,  p.  308,  the  author 
says :  — 

"Where  the  owner  of  a  mortgaged  chattel  places  it  in  the  hands  of 


ORDINARY    BAILMENTS. 

a  mechanic  for  repairs  which  are  necessary  to  put  it  in  condition  for  use, 
and  the  mechanic  retains  po  .  until  his  chaj  ges 

is  prior  to  and  can  be  enforced  against  the  mortgage,  if  the  mortg   g 
becomes  due  before  the  r-  re  made  and  r     -  .  :   b lined  b; 

mechanic,  where  the  mo:  has  never  taken  possession  under  his 

mo."-    . 

And  in  Brown's  Admiralty,  p.  _  4.  in  the  case  of  "The  St.  Joseph." 
Mr.  Justice  Withey  thus  states  the  law  in  reference  to  maritime  liens  :  — 

Strictly  maritime  liens  have  -  held  priority  over  nior.    . 

without  reference  to  the  p  me  when  th  g  ^>und 

that  it  is  as  much  fo:  the  mortg.:  g         s  for  the  owner 

that  the  ship  should  be  kept  in  repair  and  supplied,  to  enable  her  to 
keep  afloat  and  be  in  receipt  of  earnings ;  thus  adding  to  the  value  of 
the  mor-  eurity,  as  well  as  to  the  ability  of  the  mortgagor  or  owner 

to  pay  the  mo: 

See  also  Brown  r.  Holmes.  13  Kas.  -192 :   Colquitt,  el  al..  v.  Kirkman. 
ra.  555. 

It  is  probable  that  the  amount  of  the  agister's  lien,  as  against  the 
mortgagee,  would  be  fixed,  not  by  the  contract  with  the  mortgagor, 
but  by  the  reasonable  value  of  the  servie  -  Still,  we  think  this  presents 
no  ground  for  disturbing  the  judgment,  for  the  plaintiff  testified  that 
he  considered  the  services  worth  the  contract  price,  and  there  was  no 
testimony  to  the  contrary,  and  the  attention  of  the  court  was  not  c 
to  the  matter,  and  the  exception  is  to  the  charge  of  the  court  as  a  wh 
and  not  to  any  specific  portion  of  it.  A  similar  answer  is  good  to  the 
objection  that  plaintiff  was  not  _  a  1  in  the  business  of  feeding  and 
taking  care  of  cattle,  within  the  scope  of  the  statute  giving  to  such 
parties  a  lien. 

The  testimony  does  not  leave  it  clear  in  our  minds  how  many  cattle 
were  in  fact  wintered ;    but  still  there  was  testimony  from  which  the 
jury  might  find  the  amount  they  did  in  fact  find,  and  we  cannot 
that  they  erred.     Upon  the  whole  record,  we  see  no  error. 

The  judgment  will  be  affirmed. 


-MALL         ROBINSON. 

69  Maine.  42.5  :   31  Am.  R.  299.     1879 

Appletox.  C.  J.     This  is  an  action  of  replevin  for  a  pair  of  wheels 
and  other  parts  of  a  hack,  upon  which  the  defendant  claims  a  lien 
reason  of  work  done  by  him  upon  them. 

The  plaintiff  is  the  owner  of  the  hack.     It  was  left  for  repairs  by  one 
Staples,  who  was  in  possession  under  a  contract  of  purchase,  the  terms 


LIEN.  89 

of  which  were  unperformed.  The  defendant  was  aware  of  the  plain- 
tiff's title.  The  presiding  justice  found  that  the  plaintiff  had  never 
given  Staples  any  authority  to  subject  the  hack  to  a  lien  for  repairs, 
and  ruled  that  no  such  authority  was  to  be  implied,  as  a  matter  of  law, 
from  the  relation  of  the  parties. 

"A  lien,"  observes  Shaw,  C.  J.,  in  Hollingsworth  v.  Dow,  19  Pick. 
228,  "is  a  proprietary  interest,  a  qualified  ownership,  and,  in  general, 
can  only  be  created  by  the  owner,  or  by  some  person  by  him  author- 
ised." Here  the  fact  of  authority  is  negatived.  The  plaintiff  never 
became  the  debtor  of  the  defendant,  and  never  authorised  the  imposition 
of  any  lien  on  his  property.  Globe  Works  v.  Wright,  100  Mass.  207. 
A  mortgagor  of  horses  cannot,  without  the  knowledge,  acquiescence,  and 
consent  of  the  mortgagee,  entrust  the  horses  to  be  boarded  so  as  to  sub- 
ject them  to  a  lien  for  keeping,  as  against  the  mortgagee.  Sargent  v. 
Usher,  55  N.  H.  287  [82].  Cushing,  C.  J.,  in  the  case  last  cited,  says, 
"  I  have  seen  no  case  in  which  it  has  been  held  that  a  party  who  permits 
another  to  have  possession  of  his  personal  property,  by  so  doing,  in  law- 
constitutes  that  other  his  agent  to  sell  or  pledge  the  property."  So  a 
bailee  can  give  no  lien  upon  property  bailed,  as  against  the  owner.  Gib- 
son v.  Gwinn,  107  Mass.  126. 

The  defendant  could  acquire  no  title  from  Staples,  when  he  had  none. 

The  exceptional  case  of  the  innkeeper  rests  upon  the  principle  that 
as  he  is  by  law  bound  to  receive  a  guest  and  his  goods,  and  might  be 
liable  to  indictment  for  not  so  receiving  them,  he  shall  have  a  lien  on 
such  goods  as  he  is  bound  to  receive,  whether  owned  by  his  guest  or  not. 

Exceptions  overruled. 


SENSENBRENNER  v.   MATHEWS. 
48  Wis.  250  ;   3  N.  W.  R.  599  ;   33  Am.  R.  809.     1879. 

[Action  of  replevin  for  a  buggy  on  which  plaintiff,  a  blacksmith, 
claimed  a  lien  for  work  done  upon  it,  against  defendant,  who,  as  officer, 
was  alleged  to  have  wrongfully  taken  the  buggy  out  of  the  possession 
of  plaintiff  under  a  writ  of  replevin  issued  at  the  suit  of  one  Henry, 
who  claimed  to  be  the  real  owner  by  purchase  from  one  Maxwell.  Judg- 
ment was  for  the  defendant,  and  the  plaintiff  appeals.] 

Ryan,  C.  J.  The  shops  of  the  appellant,  Schweitzer  and  Maxwell, 
although  in  the  same  building,  were  held  by  them  respectively  in 
severalty ;  and  the  right  of  way  of  Maxwell,  although  passing  through 
the  shops  of  the  appellant  or  Schweitzer,  was  part  of  his  holding  and  used 
by  him  of  his  own  right. 

The  buggy  belonging  to  Maxwell  was  delivered  to  him  through  the 
right  of  way  by  the  appellant,  after  it  had  been  ironed  by  the  latter. 


90  ORDINARY    BAILMENTS. 

It  was  delivered  with  the  expectation  that  it  should  be  painted  by  Max- 
well ;  but  Maxwell  owed  no  duty,  either  to  Schweitzer  or  the  appellant, 
to  paint  it.  The  delivery  was  unconditional,  and  the  buggy  must  be 
taken  to  have  been  delivered  to  Maxwell  in  his  right  as  owner  of  it. 

This  delivery  operated  as  an  absolute  waiver  of  all  lien  of  the  appel- 
lant for  ironing  the  buggy.  The  essence  of  lien,  in  such  cases,  is  posses- 
sion. Lien  cannot  survive  possession  ;  and  except  in  case  of  fraud,  and 
perhaps  mistake,  such  a  lien  cannot  be  restored  by  resumption  of  pos- 
session. "  Lien  is  a  right  to  hold  possession  of  another's  property  for 
the  satisfaction  of  some  charge  attached  to  it.  The  essence  of  the 
right  is  possession  ;  and  whether  that  possession  be  of  officers  of  the  law 
or  of  the  person  who  claims  the  right  of  lien,  the  chattel  on  which  the 
lien  attaches  is  equally  regarded  as  in  the  custody  of  the  law.  Lien  is 
neither  a  jus  ad  rem  nor  a  jus  in  re,  but  a  simple  right  of  retainer." 
3  Parsons'  Cont.  234. 

"  The  voluntary  parting  with  the  possession  of  the  goods  will  amount 
to  a  waiver  or  surrender  of  a  lien ;  for,  as  it  is  a  right  founded  upon 
possession,  it  must  ordinarily  cease  when  the  possession  ceases." 
Story's  Ag.,  §  367. 

As  this  disposes  of  the  lien  set  up  by  the  appellant  to  support  this 
action,  it  is  immaterial  how  the  respondents  came  into  possession.  In 
replevin,  a  plaintiff  recovers  on  his  own  right  of  possession,  not  on  the 
weakness  of  the  defendant's  right. 

By  the  Court.  —  The  judgment  of  the  court  below  is  affirmed. 


DOANE  v.   RUSSELL. 

5  Gray  (Mass.)  382.     1855. 

Action  of  tort  for  the  conversion  of  a  wagon.  Trial  in  the  court  of 
common  pleas,  before  Hoar,  J. 

The  plaintiff  claimed  title  as  assignee  in  insolvency  of  Lemuel  T. 
Starkey,  and  offered  in  evidence  an  assignment  to  him  of  all  Starkey's 
property,  purporting  to  be  executed  by  "Joshua  C.  Stone,  commissioner 
in  insolvency"  for  the  county  of  Bristol.  The  defendant  objected  to 
its  admission,  without  proof  that  proceedings  in  insolvency  had  been 
commenced,  and  that  Stone  had  been  legally  appointed  commissioner. 
But  the  objection  was  overruled,  and  the  paper  admitted. 

The  evidence  tended  to  show  that  Starkey  left  the  wheels  and  shafts 
of  a  wagon  with  the  defendant,  to  be  repaired,  and  a  body  made  and 
put  upon  them  ;  that  the  defendant  did  the  work,  as  directed,  and  gave 
Starkey  notice  in  writing  of  the  amount  of  his  bill,  and  that  he  should 
sell  the  wagon  by  public  auction  at  a  place  and  hour  named,  a  week 


LIEN.  91 

after  the  notice,  for  the  purpose  of  defraying  said  bill,  and  of  perfecting 
his  lien,  unless  the  bill  should  be  previously  paid ;  and  that  he  sold  the 
wagon  pursuant  to  this  notice. 

The  defendant  requested  the  judge  to  instruct  the  jury  "  that  a  me- 
chanic, for  additions  to  or  services  upon  personal  property,  has  a  right, 
on  giving  due  and  reasonable  notice  to  the  owner,  to  sell  the  same,  to 
perfect  his  lien."  But  the  judge  refused  so  to  instruct  the  jury ;  and 
instructed  them  "that  the  defendant  would  have  no  right  to  sell  said 
property,-  unless  upon  a  contract,  express  or  implied ;  and  that  the  sale 
was  a  conversion." 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

Shaw,  C.  J.  The  assignment  to  the  plaintiff  was  properly  admitted. 
No  evidence  of  the  commencement  of  proceedings  in  insolvency  was 
necessary,  for  the  assignment  is  made,  by  St.  1838,  c.  163,  §  5,  conclu- 
sive evidence  of  the  authority  of  the  assignee  to  sue.  And  the  signa- 
ture, purporting  to  be  the  official  signature  of  a  commissioner  of  insol- 
vency to  an  instrument  which  he  was  empowered  by  law  to  execute, 
proves  itself,  in  the  absence  of  opposing  evidence. 

The  more  interesting  question  is,  whether  the  defendant,  holding  a 
mechanic's  lien  on  the  wagon,  for  the  payment  of  his  work  and  mate- 
rials, had  a  right,  upon  notice,  and  in  case  the  bill  was  not  paid  in  a 
reasonable  time,  to  sell  the  wagon,  and  deduct  his  pay  from  the  pro- 
ceeds. If  he  had  not,  then  the  act  of  sale,  being  an  abuse  of  his  right 
of  possession,  and  an  unwarrantable  exercise  of  dominion  over  the 
property,  especially  of  such  a  character  as  to  put  it  out  of  his  power  to 
surrender  the  chattel,  on  demand,  accompanied  with  payment  or  tender 
of  his  bill,  would  in  law  amount  to  a  conversion.  If  he  has  such  right, 
trover  would  not  lie,  and  he  would  be  responsible  in  assumpsit  only  for 
the  balance  of  the  proceeds  of  the  sale,  if  any. 

We  have  no  case  in  Massachusetts  in  which  this  point  has  been 
directly  decided.  The  general  impression,  we  think,  has  been  that  the 
party  having  such  lien  for  his  work  and  materials  has  no  legal  right 
to  sell  the  chattel  for  his  reimbursement.  The  general  language  of 
the  books,  in  describing  such  lien,  favours  this  impression.  It  is  a  right 
"to  retain,"  "to  keep  possession  of,"  "to  detain,"  &c,  until  he  is  paid. 
Such  a  right  is  said  to  be  a  personal  right  to  detain,  in  contra-distinc- 
tion  to  an  interest  in  the  property ;  and  if  the  party  parts  with  the 
article,  by  a  pledge,  sale,  or  otherwise,  he  loses  his  lien.  Hence  the 
distinction  between  such  a  lien  for  work  and  materials,  as  given  by 
what  was  anciently  called  the  custom  of  the  realm,  or  now  the 
general  law,  and  an  express  pawn  or  pledge  of  goods  by  the  owner, 
as  collateral  security  for  a  loan  of  money.  In  the  latter  case,  it  is 
now  held  that  when  the  debt  has  become  due,  and  remains  unpaid, 
the  creditor,  after  a  reasonable  time,  may  sell  the  pledge ;  but  other- 
wise when  there  is  a  mere  lien,  as  in  the  case  of  mechanics,  innholders 


92  ORDINARY    BAILMENTS. 

and  others,  by  custom.     And  we  think  this  distinction  and  these  rules 
are  well  established  by  authorities. 

In  the  case  of  Pothonier  v.  Dawson,  Holt  N.  P.  383,  before  Chief 
Justice  Gibbs,  he  says  :  "  Undoubtedly,  as  a  general  proposition,  a  right 
of  lien  gives  no  right  to  sell  the  goods.  But  when  goods  are  deposited, 
by  way  of  security,  to  indemnify  a  party  against  a  loan  of  money,  it  is 
more  than  a  pledge."  He  places  it  on  the  ground  of  an  implied  author- 
ity, arising  from  the  nature  of  the  transaction,  that  the  pledgee,  after 
due  notice,  shall  have  a  power  to  sell  the  goods  and  reimburse  himself. 
The  latter  point  has  been  held  in  this  and  other  American  states. 
Parker  v.  Brancker,  22  Pick.  40 ;   Hart  v.  Ten  Eyck,  2  Johns.  Ch.  100. 

The  case  in  Holt,  in  which  it  was  laid  down  as  the  general  rule  that 
a  lien  gives  no  right  of  sale,  was  a  nisi  prius  case ;  but  it  was  stated, 
by  a  very  eminent  judge,  as  a  rule  well  established,  and  has  been  cited 
with  approbation  since. 

In  Jones  v.  Pearle,  1  Stra.  557,  it  was  held  that,  except  by  the  custom 
of  London,  an  innkeeper  had  no  right  to  sell  horses  on  which  he  had  a 
lien  for  their  keeping. 

So  it  is  stated  by  Mr.  Justice  Buller,  in  his  celebrated  judgment  in 
Lickbarrow  v.  Mason,  reported  in  a  note  to  6  East,  21.  Having  de- 
scribed a  lien  to  be  a  qualified  right  which,  in  given  cases,  may  be 
exercised  over  the  property  of  another,  and  illustrating  the  distinc- 
tion between  the  owner  of  property  and  one  having  a  lien  on  it,  he  says, 
that  the  former  may  sell  or  dispose  of  the  goods  as  he  pleases  ;  "  but  he 
who  has  a  lien  only  on  goods  has  no  right  so  to  do ;  he  can  only  retain 
them  till  the  original  price  be  paid."  This  is  no  judicial  decision; 
but  it  is  a  statement  of  what  the  law  was  understood  to  be  by  a  judge 
of  great  authority,  and  stated  as  a  point  so  clearly  settled  and  under- 
stood that  it  was  used  by  way  of  illustration  of  a  principle  less  clear. 

But  even  in  case  of  a  pledge,  as  security  for  a  debt,  the  property  is  not 
divested  ;  the  general  property  remains  in  the  pledgor ;  it  is  a  lien  with 
a  power  of  sale  superadded  ;  but,  till  the  rightful  execution  of  the  power, 
the  general  property  is  not  divested.     Walter  v.  Smith,  5  B.  &  Aid.  439. 

These  general  doctrines  are  well  stated,  and  the  authorities  reviewed, 
in  Cortelyou  v.  Lansing,. 2  Caines  Cas.  200. 

We  think  the  rule  is  generally  stated  by  the  text  writers,  that  a  party 
having  a  lien  only,  without  a  power  of  sale  superadded  by  agreement, 
cannot  lawfully  sell  the  chattel  for  his  reimbursement.  It  is  so  stated 
in  1  Chit.  Gen.  Pract.  492 ;  and  he  advises  carriers  and  others,  entitled 
to  a  lien,  to  obtain  an  express  stipulation  for  a  power  of  sale  in  case  the 
lien  is  not  satisfied.  2  Kent  Com.  (6th  ed.)  642.  Cross  on  Lien,  47. 
Woolrych  on  Com.  &  Merc.  Law,  237.  The  language  of  the  learned 
American  commentator,  in  summing  up  his  article  on  lien,  is  this : 
"I  will  conclude  with  observing  that  a  lien  is,  in  many  cases,  like  a 
distress  at  common  law,  and  gives  the  party  detaining  the  chattel  the 
right  to  hold  it  as  a  pledge  or  security  for  the  debt,  but  not  to  sell  it." 


LI  EX.  93 

If  it  be  said  that  a  right  to  retain  the  goods,  without  the  right  to  sell, 
is  of  little  or  no  value,  it  may  be  answered  that  it  is  certainly  not  so 
adequate  a  security  as  a  pledge  with  a  power  of  sale ;  still,  it  is  to  be 
considered  that  both  parties  have  rights  which  are  to  be  regarded  by 
the  law ;  and  the  rule  must  be  adapted  to  general  convenience.  In 
the  greater  number  of  cases,  the  lien  for  work  is  small  in  comparison 
with  the  value,  to  the  owner,  of  the  article  subject  to  lien  ;  and  in  most 
cases  it  would  be  for  the  interest  of  the  owner  to  satisfy  the  lien  and 
redeem  the  goods  ;  as  in  the  case  of  the  tailor,  the  coachmaker,  the  inn- 
keeper, the  carrier,  and  others.  Whereas,  many  times,  it  would  cause 
great  loss  to  the  general  owner  to  sell  the  suit  of  clothes  or  other  articles 
of  personal  property.  But  further,  it  is  to  be  considered  that  the  secur- 
ity of  this  lien,  such  as  it  is,  is  superadded  to  the  holder's  right  to  re- 
cover for  his  services  by  action.  And  if  the  transaction  be  a  large  one, 
and  of  such  a  character  as  to  require  further  security,  it  may  be  pro- 
vided for  by  an  express  stipulation  for  a  power  of  sale,  under  such 
limitations  as  the  particular  circumstances  of  the  case  may  indicate 
as  suitable  to  secure  the  rights  of  all  parties  concerned. 

Under  the  circumstances  of  the  present  case,  the  court,  without  stop- 
ping to  consider  whether  the  notice  to  the  general  owner  was  reason- 
able and  sufficient  or  not,  are  of  opinion  that  the  defendant  had  no 
legal  right  to  sell  the  wagon ;  that  by  the  wrongful  sale  and  parting 
with  the  possession,  he  lost  his  lien ;  that  the  owner's  general  property 
in  the  wagon  remained  unchanged ;  that  this  property,  upon  proceed- 
ings being  taken  against  the  owner  as  an  insolvent  debtor,  and  a  regu- 
lar assignment  of  the  property,  passed  to  the  plaintiff  as  assignee; 
that  this  action  can  be  maintained,  and  that  the  directions  of  the  judge 

at  the  trial  were  right. 

Exceptions  overruled. 


LAMBERT  v.   NICKLASS. 
45  W.  Va.  527  ;   72  Am.  St.  R.  828.     1898. 

Brannon,  P.  Lambert  kept  a  horse  and  buggy  for  Brown,  claiming 
a  lien  for  the  keeping,  refusing  to  let  Brown  take  them  without  pay- 
ment. Brown  agreed  that  they  should  stand  good  for  their  keeping. 
Brown  became  insolvent  and  assigned  for  the  benefit  of  creditors,  but 
did  not  include  this  property  in  his  assignment.  Lambert  sued  for 
keeping  the  property,  levied  an  attachment  on  it,  the  officer  leaving  it 
in  his  possession.  The  attachment  was  quashed,  but  personal  judgment 
was  rendered  for  the  debt.  Afterward,  Nicklass  Brothers  &  Co.  levied 
an  execution  against  Brown  on  the  property,  and  Lambert  procured  an 


94  ORDINARY    BAILMENTS. 

injunction  against  selling,  and  the  court  held  that  Lambert  had  no  lien, 
dissolved  the  injunction,  and  gave  the  execution  preference  over  Lam- 
bert's lien,  and  Lambert  appealed. 

Lambert  claims  a  lien  for  keeping  a  horse  and  buggy  at  his  stable 
belonging  to  Brown,  under  section  15,  chapter  100,  of  the  code,  that 
"persons  keeping  live  stock  for  hire  shall  have  the  same  rights  and 
remedies  for  the  recovery  of  their  charges  therefor  as  innkeepers  have." 
It  is  questioned  by  counsel  whether  Lambert  ever  had  any  lien.  Coun- 
sel say  that  agisters  and  liverymen  have  no  lien  at  common  law,  as  is 
true :  13  Am.  &  Eng.  Ency.  of  Law,  1st  ed.,  943.  They  say  that  an 
innkeeper  has  a  lien  on  the  goods  of  his  guest,  as  he  has  sole  and  exclu- 
sive possession,  not  concurrently  with  the  owner;  but  that  one  who 
merely  feeds  and  takes  care  of  a  horse  has  not  sole  possession,  but  one 
concurrent  with  the  possession  of  the  owner ;  that  only  exclusive 
possession  gives  a  lien.  Now,  I  see  little  difference  as  to  possession. 
The  transient  guest  sometimes  takes  his  horse  and  uses  him  during  his 
stay  at  the  inn,  as  does  one  who  merely  keeps  his  horse  at  the  stable. 
It  is  the  keeping  the  guest  and  the  keeping  the  horse  that  gives  rise  to 
the  lien,  not  alone  possession,  that  being  only  the  means  of  enforcing 
pay.  It  is  very  plain  to  me  that  the  statute  intended  to  remedy  the 
defect  of  the  common  law,  and  give  any  one  keeping  live  stock  for 
compensation  a  lien  for  such  compensation  —  a  lien  like  that  of  the 
innkeeper.  Of  course,  it  does  not  mean  one  who  keeps  stock  to  be 
hired,  as  there  the  compensation  goes  to  the  other  party  for  use  of  the 
stock ;  but  it  means  to  give  a  lien  to  any  one  who,  for  hire  or  compen- 
sation, keeps  stock.     Lambert  clearly  had  a  lien. 

But  it  is  said  Lambert  waived  or  forfeited  his  lien  by  bringing  action 
for  the  same  demand  before  a  justice,  and  levying  an  attachment  upon 
the  property.  First,  it  is  argued  that  judgment  in  this  action  merged 
and  destroyed  the  lien.  Judgment  does  merge  the  cause  of  action,  so 
that  it  cannot  be  sued  on  again ;  but  I  understand  that  in  law  the  debt 
is  one  thing  and  its  lien  on  given  property  another  thing,  and  that  judg- 
ment does  not  destroy  the  lien.  The  creditor  may  enforce  both,  and 
his  election  of  one  does  not  exclude  the  other  as  a  remedy.  "Though 
the  debt  is  merged  in  the  judgment,  its  nature  is  not  destroyed  or 
affected  ;  and  if  the  debt  was  one  for  which  a  lien  was  given  at  common 
law  or  by  statute,  the  lien  continues  after  judgment"  :  1  Jones  on  Liens, 
§  1032a. 

But  it  is  claimed  with  more  confidence  by  counsel  for  appellees  that 
the  lien  given  by  this  statute  is  like  that  given  an  innkeeper  by  common 
law,  and  that,  as  loss  of  possession  destroys  the  innkeeper's  lien,  so  the 
levy  of  the  attachment  took  away  from  Lambert  the  possession,  and  gave 
the  officer  possession,  and  thus  lost  Lambert's  lien.  There  is  quoted  to 
us  the  passage  from  Jones  on  Liens,  §  1014,  saying:  "An  attach- 
ment of  goods  by  one  who  claims  a  lien  on  them,  to  secure  the  same  debt 
for  which  the  lien  is  claimed,  is  a  waiver  of  the  lien.     The  attachment 


LIEN.  95 

is,  in  effect,  an  assertion  that  the  property  belongs  to  the  defendant. 
Having  made  the  attachment,  he  is  estopped  from  afterwards  assert- 
ing the  contrary."  Also  Herman's  Law  of  executions,  §  172, 
saying :  "  Taking  property  in  execution  at  the  suit  of  a  party  having  a 
lien  thereon  destroys  the  lien  by  changing  the  possession  from  the 
bailee  to  the  officer,  though  the  property  is  left  with  the  party.  The 
possession  must  of  necessity  vest  in  the  officer  in  order  to  enable  him  to 
sell  the  property."  And  citations  from  13  American  and  English  Ency- 
clopedia of  Law,  586,  and  Jones  of  Liens,  §  328,  to  the  effect  that 
a  carrier's  lien  is  lost  by  his  attaching  property.  As  to  the  clause  from 
Jones,  that  "the  attachment  is  an  assertion  that  the  property  belongs 
to  the  defendant,"  I  will  say  that  there  is  no  force  in  it,  because  by  claim- 
ing a  lien  the  plaintiff  asserts  that  it  belongs  to  the  defendant  as  much 
as  by  attaching  it.  He  asserts  the  same  thing  by  both  lien  and  attach- 
ment, and  no  estoppel  can,  therefore,  be  based  upon  any  contradiction 
between  the  two.  Very  little  authority  is  cited  for  the  above-cited  doc- 
trine ;  the  same  is  cited  for  all  the  propositions  above  given.  Regard- 
ing it  unreasonable,  I  have  sought  to  trace  its  origin,  and  find  it  in  an 
English  decision  in  1828  (Jacobs  v.  Latour,  5  Bing.  130),  holding  that 
where  one  entitled  to  a  lien  as  stable  keeper  and  trainer  sued  and  sold 
and  bought  the  horses  under  execution,  he  could  claim,  in  trover  against 
him  by  an  assignee  in  bankruptcy,  only  under  the  execution,  not  under 
his  lien,  his  lien  being  waived  by  the  execution.  Legg  v.  Willard,  17 
Pick.  140,  28  Am.  Dec.  282,  seems  to  hold  that  when  one  has  a  lien, 
and  attaches  for  the  same  debt,  his  lien  is  gone ;  but  it  is  a  mere  asser- 
tion, and  no  discussion  of  any  authority.  Wingard  v.  Banning,  39  Cal. 
543,  is  cited  for  the  proposition;  but  there  the  affidavit  declared  the 
creditor  had  no  lien,  which  was  an  express  renunciation  of  it.  It  seems 
only  three  out  of  five  judges  concurred  in  the  opinion.  In  Arendale  v. 
Morgan,  5  Sneed,  703,  the  question  is  considered,  and  the  court  refused 
to  follow  that  doctrine,  and  held  that  where  one  has  property  in  pledge 
for  debt,  and  parts  with  possession  with  intent  to  abandon  the  lien, 
as  if  he  agrees  that  it  be  attached  at  the  suit  of  a  third  person,  it  is  gone  ; 
but  not  so  where  he  attaches  for  his  own  debt.  This  is  the  true  posi- 
tion. 

To  sustain  this  loss  of  lien  we  must  place  it  on  one  or  the  other  of 
two  ideas  —  intentional  waiver,  or  from  loss  of  possession.  As  to  the 
first,  authority  is  abundant  to  show  that  one  will  not  be  held  to  waive 
a  lien  unless  the  intent  be  express  or  very  plain  and  clear.  The  presump- 
tion is  always  against  it.  Merely  taking  a  new  security  does  not: 
Bansimer  v.  Fell,  39  W.  Va.  448 ;  Hopkins  v.  Detwiler,  25  W.  Va.  734, 
748;  Hess  v.  Dille,  23  W.  Va.  97.  So  with  the  innkeeper's  lien:  11 
Am.  &  Eng.  Ency.  of  Law,  49. 

And  as  to  the  loss  of  lien  by  loss  of  possession :  An  innkeeper  having 
a  lien  has  no  right  to  sell  the  property  without  a  judicial  proceeding. 
If  he  does,  he  is  liable  to  an  action  of  trover  for  its  unlawful  conversion, 


93  ORDINARY   BAILMENTS. 

besides  losing  his  lien.  His  only  remedy  is  to  hold  it  till  payment.  Un- 
reasonable this  is ;  but,  where  no  statute  can  be  found  providing  for 
a  sale,  it  is  so,  by  much  authority  :  11  Am.  &  Eng.  Ency.  of  Law,  1st 
ed.,  46;  Jones  on  Liens,  §  523.  In  fact,  on  the  mere  strength  of 
lien,  he  can  sue  neither  at  law  nor  in  equity,  if  there  is  no  statute  to  allow 
it.  It  is  different  from  a  pledge  or  pawn  :  13  Ency.  of  PI.  &  Pr.  127  ; 
1  Jones  on  Liens,  §§  1033,  1038.  The  horse  is  in  the  innkeeper's 
stable,  eating  its  head  off,  and  he  has  no  remedy.  Suppose,  however, 
by  reason  of  non-residence  or  other  cause,  the  innkeeper  can  sue  out 
an  attachment,  why  shall  he  not  do  so  ?  He  is  not  thus  waiving,  but 
enforcing,  his  lien.  Why  it  should  be  said  that,  when  the  officer  levies 
on  the  property  to  enforce  this  lien,  the  innkeeper  loses  his  lien  because 
he  gives  up  possession,  I  cannot  see.  The  officer  is  his  agent  for  this 
purpose.  To  say  so  is  technical  in  the  highest  degree,  and  defeats  jus- 
tice. The  innkeeper  is  not  surrendering  possession  to  the  owner,  nor 
to  an  officer  acting  in  furtherance  of  his  demand.  He  could  bring  a 
suit,  as  shewn  above,  without  forfeiting  his  lien ;  and  by  resorting  to 
an  attachment  he  simply  availed  himself  of  a  fact  giving  him  the  right 
to  attachment  to  enforce  a  debt  for  which  there  was  a  lien,  using  a  cumu- 
lative remedy.  Houck  on  Liens,  §  6,  says,  "If  possession  is  re- 
linquished after  the  lien  attaches,  the  lien  is  gone  ;  for,  by  parting  with 
possession,  the  creditor  shows  that  he  trusts  to  the  personal  credit  of 
the  debtor"  ;  and  cites  numerous  authorities.  This  is  so  where  he  lets 
the  owner  or  an  officer  under  process  for  debts  of  others  have  posses- 
sion. Then  you  can  fairly  say  that  he  looks  to  the  debtor  only ;  and 
that,  as  Houck  says,  is  the  reason  why  surrender  of  possession  destroys 
the  lien.  But  how  can  we  say  that  Lambert  intended  to  look  to  the 
personal  credit  of  Brown  by  an  act  which  told  the  very  reverse,  and  told 
that  he  looked  to  the  property  for  pay,  not  to  Brown  ?  Furthermore, 
Brown  expressly  pledged  the  horse  to  Lambert  for  his  keep.  Lambert 
could  sell  it  as  a  pawn.  This  he  could  do  by  agent,  and  the  agent's 
possession  would  be  his.  Is  the  officer  anything  but  his  agent  ?  He 
is  responsible  for  the  officer's  trespass,  because  he  acts  for  him.  Judge 
Story  condemns  this  doctrine  as  not  well  established,  and  says  the 
Massachusetts  ruling  was  local  to  that  state :  Story  on  Bailments, 
§  366.  In  Townsend  v.  Newell,  14  Pick.  332,  one  had  goods,  with 
right  to  lien,  and  an  attachment  was  levied  in  favour  of  a  creditor,  and 
he  refused  to  give  them  up,  but  kept  possession,  and  gave  a  receipt  to 
the  officer  for  them.  Later  he  levied  an  attachment  for  his  own  lien 
debt,  still  retaining  possession,  but  receipting  to  the  officer  for  the  goods. 
It  was  held  that  the  lien  was  not  lost.  There,  as  in  this  case,  the  officer 
let  the  lien  owner  keep  the  goods  in  his  custody.  In  that  case,  it  is 
true,  he  expressly  claimed  his  lien ;  but  who  imagines  that  Lambert 
intended  to  give  up  his  lien  ?  His  attachment  itself  speaks  the  negative. 
In  that  case,  after  levy,  it  was  as  much  the  officer's  possession  as  in 
this,  and  the  court  did  not  give  it  the  force  of  forfeiture  of  lien,  but 


LIEN.  97 

said,  as  the  party  did  not  intend  to  surrender  it,  it  still  held  good.  There 
is  no  evidence  that  Lambert  intended  to  give  up  his  lien,  and  if  it  stands 
on  intention,  and  not  on  loss  of  possession,  he  who  asserts  such  inten- 
tion must  make  it  clear.  In  Whitaker  v.  Sumner,  20  Pick.  399,  where 
one  having  a  pledge  allowed  a  levy  for  a  debt  once  owned  by  him  and 
debts  of  strangers,  he  was  held  to  have  lost  the  lien ;  but  Chief  Justice 
Shaw  was  careful  to  say,  "We  would  not  be  understood  hereby  to  hold 
that  an  attachment  under  all  circumstances,  though  made  by  the  party 
holding  the  pledge,  or  by  his  consent,  would  be  a  waiver  of  the  lien." 
I  have  not  said  anything  about  jurisdiction  in  equity,  as  the  question 
was  not  raised  or  discussed. 

Decree  reversed,  and  the  case  is  remanded,  with  direction  to  the  cir- 
cuit court  to  enter  a  decree  allowing  Lambert's  debt  as  a  lien,  to  be 
paid  out  of  the  proceeds  of  the  property,  in  preference  to  the  execution 
of  Nicklass  Brothers  &  Co. 


98  PLEDGES. 


II.    PLEDGES. 

1.    POSSESSION    ESSENTIAL. 
WILSON  v.  LITTLE. 
2  N.  Y.  (Comst.)  443;   51  Am.  D.  307.     1849. 

Appeal  from  the  superior  court  of  the  city  of  New  York  where 
James  Wilson  brought  an  action  on  the  case  against  Jacob  Little  and 
others  for  wrongfully  selling  fifty  shares  of  stock  in  the  New  York  and 
Erie  Rail-Road  Company.  The  cause  was  tried  before  Sandford,  J., 
in  December,  1847,  and  the  plaintiff  had  a  verdict  for  $4000  damages, 
subject  to  the  opinion  of  the  court  on  a  case  to  be  made,  with  liberty 
to  either  party  to  turn  the  case  into  a  bill  of  exceptions.  The  amount 
of  the  verdict,  if  the  plaintiff  was  entitled  to  recover,  was  also  subject 
to  adjustment  by  the  court.  On  a  case  being  made,  the  superior  court 
deducted  from  the  verdict  the  amount  of  the  debt  to  secure  which  the 
stock  in  question  had  been  pledged  to  the  defendants,  and  gave  judg- 
ment in  the  plaintiff's  favour  for  $2609.05,  damages  and  costs  of  suit. 
The  case  having  been  turned  into  a  bill  of  exceptions,  the  defendants 
appealed  to  this  court.  The  facts  are  sufficiently  stated  in  the  opinion 
of  the  court. 

Ruggles,  J.,  delivered  the  opinion  of  the  court.  This  was  an  action 
for  wrongfully  selling  fifty  shares  of  Erie  railroad  stock,  which  the 
defendants  Little  &  Co.  had  received  in  security  for  a  loan  of  $2000 
made  by  them  to  Wilson,  through  the  agency  of  R.  L.  Cutting,  a  broker. 
The  contract  in  writing  was  in  these  words :  — 

"  New  York,  Dec.  20,  1845. 
"$2000.     I  promise  to  pay  Jacob  Little  or  order  two  thousand  dollars, 
for  value  received,  with  interest  at  the  rate  of  seven  per  cent  per  annum, 
having  deposited  with  them  as  collateral  security,  with  authority  to  sell  the 

same  at  the  broker's  board,  or  at  public  auction,  or  at  private  sale,  at 

option,  on  the  non-performance  of  this  promise,  without  notice  on  

fifty  Erie. 


.. 


R.  L.  Cutting." 


The  stock  in  fact  belonged  to  the  plaintiff  Wilson,  but  stood  in 
Cutting's  name  on  the  books  of  the  New  York  and  Erie  Rail-Road 
Company.  It  was  of  that  kind  known  as  consolidated  capital  stock. 
Cutting  negotiated  the  loan  as  the  plaintiff's  broker.     On  the  same 


POSSESSION   ESSENTIAL.  99 

day  Cutting  made  a  transfer  of  the  stock  on  the  books  of  the  company 
in  the  words  following  :  — 

"N.  Y.  &  Erie  Co. 

"For  value  received,  I  hereby  transfer  unto  Jacob  Little  &  Co.,  all  my 
right,  title  and  interest  in  fifty  shares  of  the  consolidated  capital  stock  of 
the  New  York  &  Erie  Rail-Road  Company.     New  York,  Dec.  20th,  1845. 

"R.  L.  Cutting." 

It  is  contended,  on  the  part  of  the  defendants,  that  the  transaction 
was  a  mortgage  and  not  a  pledge ;  that  the  money  was  payable  imme- 
diately, and  the  stock  became  absolutely  the  property  of  the  appel- 
lants, and  was  only  redeemable  in  equity.  If  this  be  true,  the  supreme 
court  and  the  court  for  the  correction  of  errors  must  have  rendered 
their  judgments  in  the  case  of  Allen  v.  Dykers  (3  Hill,  593,  and  7  id. 
498),  upon  a  mistaken  view  of  the  law.  In  that  case,  as  in  the  present, 
there  was  a  loan  of  money,  a  promissory  note^for  the  payment  of  the 
amount,  in  which  it  was  stated  that  the  borrower  had  deposited  with 
the  lenders,  as  collateral  security,  with  authority  to  sell  the  same  on  the 
non-performance  of  the  promise,  250  shares  of  a  stock  therein  mentioned. 
The  money  in  that  case  was  payable  in  sixty  days  —  the  sale  was  to  be 
made  at  the  board  of  brokers,  and  notice  waived  if  not  paid  at  maturity. 
The  stock  was  assigned  to  the  lenders  of  the  money,  and  the  transfer 
entered  on  the  books  of  the  company,  on  the  day  the  note  was  given. 
With  respect  to  the  question  whether  the  stock  was  mortgaged  or 
pledged,  I  can  perceive  no  difference  between  that  case  and  the  present. 
The  question  does  not  appear,  by  the  report  of  that  case,  to  have  been 
raised.  It  would  have  been  a  decisive  point,  for  if  it  had  been  a  mort- 
gage and  not  a  pledge,  the  plaintiff  must  have  failed.  The  sale  of  the 
stock  in  that  case,  by  the  lender,  before  the  maturity  of  the  note,  did 
not  make  it  the  less  decisive.  (See  Brown  v.  Bement,  8  John.  98.) 
If  there  had  been  good  ground  for  saying,  in  Allen  v.  Dykers,  that  the 
stock  was  mortgaged  and  not  pledged,  it  is  not  to  be  believed  that  it  would 
have  escaped  the  attention  of  the  eminent  counsel  who  argued  the 
cause,  and  of  both  the  courts ;  and  on  examining  the  question,  I  am 
satisfied  that  if  the  point  had  been  taken  it  would  have  been  overruled. 

The  argument  of  the  defendant  in  this  case  is  founded  on  the  assump- 
tion that  when  personal  things  are  pledged  for  the  payment  of  a  debt, 
the  general  property  and  the  legal  title  always  remains  in  the  pledger ; 
and  that  in  all  cases  where  the  legal  title  is  transferred  to  the  creditor, 
the  transaction  is  a  mortgage  and  not  a  pledge.  This,  however,  is  not 
invariably  true.  But  it  is  true  that  possession  must  uniformly  accom- 
pany a  pledge.  The  right  of  the  pledgee  cannot  otherwise  be  consum- 
mated. And  on  this  ground  it  has  been  doubted  whether  incorporeal 
things  like  debts,  money  in  stocks,  &c,  which  cannot  be  manually 
delivered,  were  the  proper  subjects  of  a  pledge.     It  is  now  held  that  they 


100  PLEDGES. 

are  so ;  and  there  seems  to  be  no  reason  why  any  legal  or  equitable 
interest  whatever  in  personal  property  may  not  be  pledged ;  provided 
the  interest  can  be  put,  by  actual  delivery  or  by  written  transfer,  into 
the  hands  or  within  the  power  of  the  pledgee,  so  as  to  be  made  available 
to  him  for  the  satisfaction  of  the  debt.  Goods  at  sea  may  be  passed 
in  pledge  by  a  transfer  of  the  muniments  of  title,  as  by  a  written  assign- 
ment of  the  bill  of  lading.  This  is  equivalent  to  actual  possession, 
because  it  is  a  delivery  of  the  means  of  obtaining  possession.  And 
debts  and  choses  in  action  are  capable,  by  means  of  a  written  assign- 
ment, of  being  conveyed  in  pledge.  (Story  on  Bail.,  §§  290,  297.) 
The  capital  stock  of  a  corporate  company  is  not  capable  of  manual 
delivery.  The  scrip  or  certificate  may  be  delivered,  but  that  of  itself 
does  not  carry  with  it  the  stockholder's  interest  in  the  corporate  funds. 
Nor  does  it  necessarily  put  that  interest  under  the  control  of  the  pledgee. 
The  mode  in  which  the  capital  stock  of  a  corporation  is  transferred 
usually  depends  on  its  by-laws.  (1  R.  S.  600,  §  1.)  It  is  so  in  the  case 
of  the  New  York  and  Erie  Rail-Road  Company.  (Laws  of  1832, 
ch.  224,  §  18.)  The  case  does  not  show  what  the  by-laws  of  that  cor- 
poration were.  It  may  be  that  nothing  short  of  the  transfer  of  the  title 
on  the  books  of  the  company  would  have  been  sufficient  to  give  the 
defendants  the  absolute  possession  of  the  stock,  and  to  secure  them 
against  a  transfer  to  some  other  person.  In  such  case  the  transfer  of 
the  legal  title  being  necessary  to  the  change  of  possession,  is  entirely 
consistent  with  the  pledge  of  the  goods.  Indeed,  it  is  in  no  case  incon- 
sistent with  it,  if  it  appears  by  the  terms  of  the  contract  that  the  debtor 
has  a  legal  right  to  the  restoration  of  the  pledge  on  payment  of  the  debt 
at  any  time,  although  after  it  falls  due,  and  before  the  creditor  has  exer- 
cised the  power  of  sale.  Reeves  v.  Cappen  (5  Bing.  N.  C.  142)  was  a 
case  in  which  the  debtor  " made  over"  to  the  creditor  " as  his  property" 
a  chronometer,  until  a  debt  of  £50  should  be  repaid.  It  was  held  to 
be  a  valid  pledge. 

In  the  present  case  the  note  for  the  repayment  of  the  loan  and  the 
transfer  of  the  stock  were  parts  of  the  same  transaction,  and  are  to  be 
construed  together.  The  transfer,  if  regarded  by  itself,  is  absolute, 
but  its  object  and  character  is  qualified  and  explained  by  the  contem- 
poraneous paper  which  declares  it  to  be  a  deposit  of  the  stock  as  col- 
lateral security  for  the  payment  of  $2000,  and  there  is  nothing  in  the 
instrument  to  work  a  forfeiture  of  the  right  to  redeem  or  otherwise  to 
defeat  it,  except  by  a  lawful  sale  under  the  power  expressed  in  the 
paper. 

The  general  property  which  the  pledger  is  said  usually  to  retain,  is 
nothing  more  than  a  legal  right  to  the  restoration  of  the  thing  pledged 
on  payment  of  the  debt.  Upon  a  fair  construction  of  the  note  and  the 
transfer  taken  together,  this  right  was  in  the  plaintiff,  unless  it  was 
defeated  by  the  sale  which  the  defendant  made  of  the  stock. 

In  every  contract  of  pledge  there  is  a  right  of  redemption  on  the  part 


POSSESSION    ESSENTIAL.  101 

of  the  debtor.  But  in  this  case  that  right  was  illusory  and  of  no  value, 
if  the  creditor  could  instantly,  without  demand  of  payment  and  without 
notice,  sell  the  thing  pledged.  We  are  not  required  to  give  the  trans- 
action so  unreasonable  a  construction.  The  borrower  agreed  thai  the 
lender  might  sell  without  notice,  but  not  that  he  might  sell  without 
demand  of  payment,  which  is  a  different  thing.  The  lender  might 
have  brought  his  action  immediately,  for  the  bringing  an  action  is  one 
way  of  demanding  payment ;  but  selling  without  notice  is  not  a  demand 
of  payment,  and  it  is  well  settled  that  where  no  time  is  expressly  fixed 
by  contract  between  the  parties  for  the  payment  of  a  debt  secured  by 
a  pledge,  the  pawnee  cannot  sell  the  pledge  without  a  previous  demand 
of  payment,  although  the  debt  is  technically  due,  immediately.  (Story 
on  Bail.,  §  308;   Stearns  v.  Marsh,  4  Denio,  227.) 

Payment  of  the  note  in  this  case  was  not  demanded  until  the  3d  of 
January,  1846.  Previous  to  that  time,  and  about  the  24th  of  December, 
1845,  the  defendants  had  sold  the  whole  or  the  greater  part  of  the  fifty 
shares  of  consolidated  stock  pledged  to  them  by  the  plaintiff,  and  were 
therefore  not  in  condition  to  fulfil  the  contract  on  their  part  by  restor- 
ing the  pledge.  Nor  were  they  able  nor  did  they  offer  to  restore  the 
same  kind  of  stock,  or  stock  of  the  same  value  as  that  which  had  been 
pledged  in  behalf  of  the  plaintiff.  On  the  3d  of  January,  when  the 
defendants  offered  to  deliver,  the  converted  stock,  which  was  of  a  different 
kind  and  value,  the  plaintiff's  broker  was  willing  to  receive  any  stock 
of  the  same  description  as  that  which  had  been  pledged ;  but  no  stock 
of  that  kind  was  offered  by  the  defendants.  There  was  at  that  time 
a  material  difference  in  the  market  price  between  the  consolidated  and 
the  converted  stock  of  the  company,  the  former  selling  at  $85  and  the 
latter  at  $55  per  share.  The  pledge  of  the  50  shares  of  consolidated 
stock,  therefore,  could  not  be  restored  or  made  good  to  the  plaintiff, 
by  assigning  to  him  the  same  number  of  shares  of  converted  stock. 
The  defendants  were  bound  to  restore  the  identical  stock  pledged.  The 
sale  of  it  by  the  defendants  before  payment  demanded  was  therefore 
wrongful,  and  the  evidence  sustains  the  third  count  in  the  plaintiff's 
declaration.  The  defendants  having  voluntarily  put  it  out  of  their 
power  to  restore  the  pledge,  a  tender  of  the  money  borrowed  would 
have  been  fruitless,  and  was  therefore  unnecessary.  (3  Hill,  590 ;  7 
id.  498.) 

The  remaining  question  is  as  to  the  rule  of  damages.  The  stock  was 
disposed  of  by  the  defendants  as  early  as  the  24th  of  December,  when 
its  market  price  was  about  $68  the  share.  The  defendant  did  not, 
however,  distinctly  inform  the  plaintiff  then  or  afterwards  that  he  had 
sold  it,  although  he  said  he  "had  not  got  it,"  and  gave  that  as  a  rea- 
son why  he  did  not  then  transfer  it,  promising  at  the  same  time  that 
he  would  make. the  transfer  as  soon  as  the  stock  came  in.  The  plain- 
tiff, to  accommodate  the  defendant,  agreed  to  wait  until  the  following 
day,  when  the  transfer  was  not  made,  the  defendant  again  promising 


102  PLEDGES. 

to  make  it  shortly.  The  plaintiff's  broker  reminded  the  defendant  of 
the  stock  frequently,  and  on  the  30th  of  December  formally  notified 
him  that  he  wanted  to  pay  the  loan  and  get  back  the  stock,  insisting  that 
there  should  be  no  more  delay,  and  that  if  it  was  not  returned,  he  was 
directed  by  the  party  for  whom  he  was  acting  to  buy  fifty  shares  at  the 
board  and  charge  it  to  the  defendants.  The  defendant  then  said  the 
stock  should  be  returned  the  next  day,  but  failed  to  return  it ;  and  it 
was  not  until  the  2d  of  January,  that  the  defendant  ceased  to  hold  out 
the  expectation  of  restoring  the  stock,  or  stock  of  the  same  kind,  and 
of  equivalent  value.  On  that  day  and  on  the  3d  of  January,  the  con- 
solidated stock  sold  at  $85  a  share. 

The  defendants  insist  that  they  are  chargeable  only  with  the  value 
of  the  pledge  at  the  time  it  was  wrongfully  converted  by  them  to  their 
own  use  on  or  before  the  24th  of  December,  and  not  with  its  increased 
value  at  any  subsequent  period.  The  court  below  in  making  up  the 
verdict  estimated  the  stock  at  $84  the  share.  In  actions  for  the  wrong- 
ful conversion  of  personal  property,  it  has  in  some  cases  been  held  that 
the  value  of  the  property  is  to  be  estimated  according  to  its  price  at 
the  time  of  the  conversion,  and  in  others  that  the  plaintiff  is  entitled 
to  damages  according  to  its  value  at  any  time  between  the  time  of  the 
conversion  and  the  day  of  the  trial.  (Bank  of  Buffalo  v.  Kortright,  22 
Wend.  348,  366.)  It  is  unnecessary  in  this  case  to  settle  the  general 
rule.  The  ground  on  which  the  defendants  insist  that  the  damages 
must  be  estimated  according  to  the  price  of  the  stock  on  the  24th  of 
December,  is  that  the  plaintiff,  on  learning  that  the  defendants  had 
sold  it,  might  then  have  gone  into  the  market  and  purchased  it  at  the 
current  price  on  that  day.  But  it  is  evident  that  he  was  prevented 
from  doing  so  by  the  repeated  promises  of  the  defendants  to  restore  the 
stock.  Although  the  plaintiff  was  strictly  entitled  to  a  retransfer  of 
the  same  shares  that  were  pledged,  it  appears  that  his  broker  was  will- 
ing to  receive  other  stock  of  the  same  description  and  value,  which  the 
defendant  promised  from  day  to  day  to  give,  the  plaintiff  being  all  the 
time  ready  to  pay  the  money  borrowed.  Time  having  thus  been  given 
to  the  defendants  at  their  request  for  the  fulfilment  of  their  obligation, 
and  the  plaintiff  having  waited  for  the  delivery  of  the  stock  for  the  ac- 
commodation of  the  defendants,  and  having  relied  on  the  expectation, 
thus  held  out,  and  lost  the  opportunity  of  purchasing  at  a  reduced  price, 
it  is  manifestly  just  that  the  plaintiff  should  recover  according  to  the 
value  of  the  thing  pledged  when  the  defendant  finally  failed  in  his 
promises  to  restore  it. 

Judgment  affirmed. 


POSSESSION    ESSENTIAL.  103 

WALKER  v.   STAPLES. 

5  Allen  (Mass.)  34.     1862. 

Replevin  of  a  carryall  and  chaise.  The  following  facts  were  agreed 
in  the  superior  court :  — 

In  May,  1860,  S.  W.  Howe  executed  a  bill  of  sale  of  the  articles  to 
the  plaintiff,  absolute  in  terms,  and  delivered  them  to  him.  It  was 
agreed  that  the  plaintiff  should  hold  them  as  security  for  indorsing  a 
note  for  the  accommodation  of  Howe,  which  the  plaintiff  has  since 
been  compelled  to  pay.  The  plaintiff  then  left  the  carriages  in  Howe's 
custody,  telling  him  that  he  might  let  them  to  his  most  careful  drivers ; 
and  Howe  accordingly  kept  them  and  let  them  to  his  customers.  The 
plaintiff  frequently  visited  Howe's  barn  and  saw  them.  In  December, 
1860,  while  the  carriages  were  in  Howe's  custody,  he  sold  them  for 
a  valuable  consideration  to  the  defendant,  who  had  no  notice  of  the 
transaction  between  him  and  the  plaintiff.  It  was  not  contended  by 
the  defendant  that  there  was  any  fraud  in  the  transaction  between  Howe 
and  the  plaintiff. 

Upon  the  foregoing  facts,  judgment  was  rendered  in  the  superior 
court  for  the  defendant,  and  the  plaintiff  appealed  to  this  court. 

Chapman,  J.  According  to  the  cases  of  Whitaker  v.  Sumner,  20  Pick. 
399,  and  Hazard  v.  Loring,  10  Cush.  267,  the  sale  of  the  property  by 
Howe  to  the  plaintiff,  though  absolute  in  form,  is  to  be  regarded  as  a 
pledge,  because  it  was  made  merely  as  security  to  the  plaintiff  for  indors- 
ing Howe's  note.  And  the  bill  of  sale,  being  a  mere  bill  of  parcels,  is 
subject  to  explanation  by  parol  evidence,  even  as  between  the  parties 
to  it. 

A  radical  distinction  between  a  pledge  and  a  mortgage  is,  that  by 
a  mortgage  the  general  title  is  transferred  to  the  mortgagee,  subject  to 
be  revested  by  performance  of  the  condition ;  but  in  case  of  a  pledge, 
the  pledger  retains  the  general  title  in  himself,  and  parts  with  the  pos- 
session for  a  special  purpose.  To  constitute  a  pledge,  the  pledgee  must 
take  possession ;  and  to  preserve  it,  he  must  retain  possession.  Homes 
v.  Crane,  2  Pick.  607 ;  Bonsey  v.  Amee,  8  Pick.  236.  A  pledgee  has 
merely  a  lien.  Cross  on  Lien,  63.  Continuance  of  possession  is  indis- 
pensable to  the  right  of  lien  ;  an  abandonment  of  the  custody  of  articles 
over  which  the  right  extends  necessarily  frustrates  any  power  to  retain 
them,  and  operates  as  an  absolute  waiver  of  the  lien.  The  holder  is, 
in  such  cases,  deemed  to  yield  up  the  security  he  has  upon  the  goods, 
and  trust  to  the  responsibility  of  the  owner.     lb.  38. 

But  the  doctrine  that  possession  must  be  retained  is  held  with  rea- 
sonable qualifications.  Thus  where  the  master  of  a  ship  pledged  his 
chronometer  to  the  owners,  and  they  permitted  him  to  keep  it  on  board 
their  ship,  and  use  it  for  the  purpose  of  navigating  the  ship  for  a  limited 
period,  it  was  held  that  they  had  not  thereby  lost  their  lien.     Reeves 


104  PLEDGES. 

v.  Capper,  5  Bing.  N.  C.  136.  So  where  a  person  had  contracted  with 
the  lessees  of  a  brickyard  to  take  clay  and  pay  them  for  it,  furnish 
wood,  &c,  and  manufacture  bricks,  and  that  they  should  have  a  lien 
on  the  bricks  as  security  for  the  advances  they  should  make  to  him,  it 
was  held  that  he  had  not  such  possession  as  to  destroy  their  lien,  because 
he  had  no  possession,  charge,  or  authority  in  his  character  of  pledger  of 
the  bricks.     Macomber  v.  Parker,  14  Pic.  497. 

But  in  the  present  case,  the  plaintiff,  after  taking  formal  possession 
of  the  carriages,  left  them  in  the  custody  of  Howe,  and  told  him  he  might 
let  them  to  his  most  careful  drivers.  Howe  kept  them  in  his  barn  and 
let  them  to  his  customers.  He  thus  retained  the  possession  for  his  own 
use.  Such  possession  was  unlike  that  of  the  chronometer,  in  the 
pledgee's  own  ship,  or  the  bricks  in  the  pledgee's  own  yard;  for  the 
plaintiff  in  this  case  had  no  title  to  the  barn.  The  possession  of  Howe 
must  be  regarded  as  absolute  and  unqualified,  and  not  special  or  sub- 
ordinate, notwithstanding  the  limitation  of  the  authority  to  let  the 
carriages  to  his  most  careful  drivers. 

It  is  stated  further,  that  the  plaintiff  frequently  visited  the  barn,  and 
saw  the  property ;  but  this  fact  is  immaterial,  inasmuch  as  he  did  not, 
on  any  of  these  occasions,  exercise  or  assert  any  control  over  the  prop- 
erty. To  hold  that  such  a  disposition  of  pledge  property  is  sufficient 
to  maintain  the  lien,  would  be  going  far  beyond  any  of  the  cases  cited, 
and  would  substantially  destroy  the  whole  doctrine  of  pledges,  as  rest- 
ing on  possession.  The  cases  cited,  of  Spaulding  v.  Adams,  32  Maine, 
211,  and  Beeman  v.  Lawton,  37  Maine,  543,  sustain  this  view.  In 
the  latter  case  the  court  say,  "  The  element  of  possession  failing,  there 
can  be  no  pawn  nor  pledge." 

Judgment  for  the  defendant. 


CASEY  v.   CAVAROC. 
96  U.  S.  467.     1877. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  District 
of  Louisiana. 

The  National  New  Orleans  Banking  Association,  an  organisation 
formed  under  the  National  Banking. Act  of  1864,  failed  and  suspended 
payment  on  the  4th  of  October,  1873,  and  on  the  27th  of  that  month 
was  placed  in  the  hands  of  a  receiver,  under  the  fiftieth  section  of  the 
act.  At  or  about  the  time  of  the  failure,  Charles  Cavaroc,  the  presi- 
dent of  the  bank,  took  therefrom  certain  bills  and  notes  to  the  amount 
of  $325,011.26,  and  delivered  the  same  to  his  firm  of  C.  Cavaroc  &  Son, 
who  claimed  to  hold  them  as  agents  for  the  Societe  de  Credit  Mobilier 
of  Paris,  by  way  of  pledge  to  secure  said  society  for  certain  acceptances 


POSSESSION    ESSENTIAL.  105 

of  bills  drawn  by  the  bank  in  July  previous.  The  bill  in  this  case  was 
filed  by  the  receiver  to  recover  possession  of  said  securities,  alleging 
that  they  were  delivered  by  the  bank  to  Cavaroc  &  Son,  in  contempla- 
tion of  the  insolvency  of  the  bank,  not  by  way  of  pledge,  but  with  a 
view  to  give  a  preference  to  Cavaroc  &  Son  and  the  Credit  Mobilier 
over  other  creditors  of  the  bank,  contrary  to  the  provisions  of  the  fifty- 
second  section  of  the  banking  act.  The  defendants,  Cavaroc  &  Son 
and  the  Credit  Mobilier,  by  their  several  answers,  deny  that  the  secur- 
ities were  delivered  by  way  of  preference  in  contemplation  of  the  insol- 
vency of  the  bank,  and  insist  that  they  were  actually  pledged  to  the 
society  by  virtue  of  a  distinct  agreement,  as  a  consideration  and  security 
for  the  acceptance  by  it  of  bills  drawn  by  the  bank  to  the  amount  of 
one  million  francs ;  which  bills  were  drawn  in  pursuance  of  said  agree- 
ment, and  were  negotiated  by  the  bank  for  over  $218,000,  and  were 
duly  accepted  by  the  society  upon  the  faith  of  the  pledged  securities. 
The  answers  aver  that  at  the  time  of  this  transaction  the  bank  was  in 
good  credit  and  standing. 

[The  evidence  is  sufficiently  summarised  in  the  opinion.] 

The  Circuit  Court  rendered  a  decree  dismissing  the  bill  of  complaint, 
and  from  that  decree  the  receiver  appealed. 

Mr.  Justice  Bradley,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  substance  of  the  agreement  in  this  case,  so  far  as  necessary  to 
be  considered,  was,  that  the  Credit  Mobilier  should  accept  the  drafts 
of  the  banking  association  to  the  amount  of  a  million  of  francs  at  ninety 
days,  the  bank  agreeing  to  furnish  funds  to  pay  the  drafts  at  maturity, 
with  the  privilege  of  a  renewal ;  and  it  was  stipulated  that  this  obliga- 
tion of  the  bank  should  be  guaranteed  by  Cavaroc  &  Co.,  and  by  a 
deposit  with  them,  for  the  use  of  the  Credit  Mobilier,  of  first-class 
securities,  of  which  deposit  the  latter  was  to  be  advised. 

This  arrangement  was  immediately  telegraphed  to  New  Orleans,  and 
the  drafts  were  drawn  on  the  12th  of  July ;  but  the  weight  of  the  evi- 
dence is,  that  none  of  the  collateral  securities  were  delivered  until  the 
19th  of  August,  —  which  might  raise  a  question  whether  the  accommo- 
dation acceptances  of  the  Credit  Mobilier  could  be  considered  as  a  con- 
temporary consideration  therefor ;  or,  if  not,  whether  the  bank  was  at 
that  time,  in  the  apprehension  of  Cavaroc  (the  common  agent),  in  a 
condition  of  solvency  and  good  credit,  —  as  to  which  an  affirmative 
answer  could  not  well  be  given,  since  the  proof  is  quite  clear  that  the 
bank  was  then  struggling  with  serious  financial  difficulties,  from  which 
it  never  recovered. 

Waiving  this  question,  however,  for  the  present,  we  will  proceed  to 
examine  whether,  supposing  that  no  objection  arises  from  the  time  when 
this  transaction  took  place,  it  amounted  to  such  a  transfer  or  pledge  of 
the  securities  in  question  as  to  entitle  the  Credit  Mobilier  to  a  prefer- 
ence upon  them  over  the  other  creditors  of  the  bank  at  the  time  of  its 


106  PLEDGES. 

failure.  Was  there  such  a  delivery  and  retention  of  possession  of  the 
collateral  securities  as  to  constitute  a  valid  pledge  by  the  law  of  Louisi- 
ana ?  Clearly  they  were  never  out  of  the  possession  of  the  officers  of 
the  bank,  and  were  never  out  of  the  bank  for  a  single  moment,  but  were 
always  subject  to  its  disposal  in  any  manner  whatever,  whether  by 
collection,  renewal,  substitution,  or  exchange ;  and  collections,  when 
made,  were  made  for  the  benefit  of  the  bank,  and  not  that  of  the  Credit 
Mobilier. 

The  case  has  some  features  in  common  with,  though  differing  in  others 
from,  that  of  Clarke  v.  Iselin  (21  Wall.  360),  in  which  this  court  held 
that  collateral  securities  transferred  by  the  borrower  to  the  lender  at 
the  time  of  the  loan  were  not  divested  out  of  the  latter  by  the  mere 
fact  of  his  depositing  them  with  the  borrower  for  collection.  The  court 
say :  "  Obviously  this  deposit  in  no  degree  affected  the  title  of  the 
defendants  to  the  notes.  It  merely  facilitated  collections."  The  court 
then  cited  White  v.  Piatt,  a  New  York  case  in  5  Denio,  269,  in  which  it 
was  said :  "  Where  promissory  notes  are  pledged  by  a  debtor  to  secure 
a  debt,  the  pledgee  acquires  a  special  property  in  them.  That  prop- 
erty is  not  lost  by  their  being  redelivered  to  the  pledgor  to  enable  him 
to  collect  them,  the  principal  debt  being  still  unpaid.  Money  which 
he  may  collect  upon  them  is  the  specific  property  of  the  creditor.  It  is 
deemed  collected  by  the  debtor  in  a  fiduciary  capacity." 

The  case  of  Clarke  v.  Iselin,  being  a  New  York  case,  and  governed  by 
New  York  law,  or  the  common  law  as  understood  in  New  York,  the 
authority  cited  was  necessarily  of  great  weight,  if  not  controlling. 
When,  as  in  that  case,  the  title  has  been  transferred  to  the  creditor,  and 
the  collections  are  made  for  his  benefit,  the  pledgor  merely  acting  as 
his  servant  or  agent  in  making  them,  the  character  of  the  security  is 
not  affected  at  the  common  law  by  the  debtor  having  actual  possession 
of  the  collaterals,  there  being  no  fraud  in  the  transaction.  In  such  a 
case,  they  are  held  by  the  creditor  by  way  of  mortgage  as  well  as  pledge  ; 
and  a  mortgage  is  valid,  notwithstanding  the  mortgagor  has  the  posses- 
sion. The  difference  ordinarily  recognised  between  a  mortgage  and  a 
pledge  is,  that  title  is  transferred  by  the  former,  and  possession  by  the 
latter.  Indeed,  possession  may  be  considered  as  of  the  very  essence 
of  a  pledge  (Pothier,  Nantissement,  8) ;  and  if  possession  be  once 
given  up,  the  pledge,  as  such,  is  extinguished.  The  possession  need  not 
be  actual ;  it  may  be  constructive ;  as  where  the  key  of  a  warehouse 
containing  the  goods  pledged  is  delivered,  or  a  bill  of  lading  is  assigned. 
In  such  case,  the  act  done  will  be  considered  as  a  token,  standing  for 
actual  delivery  of  the  goods.  It  puts  the  property  under  the  power  and 
control  of  the  creditor.  In  some  cases,  such  constructive  delivery 
cannot  be  effected  without  doing  what  amounts  to  a  transfer  of  the 
property  also.  The  assignment  of  a  bill  of  lading  is  of  that  kind.  Such 
an  assignment  is  necessary,  where  a  pledge  is  proposed,  in  order  to  give 
the  constructive  possession  required  to  constitute  a  pledge ;    and  yet 


POSSESSION    ESSENTIAL.  107 

it  formally  transfers  the  title  also.  In  such  a  case,  there  is  a  union  of 
two  distinct  forms  of  security,  —  that  of  mortgage  and  that  of  pledge ; 
mortgage  by  virtue  of  the  title,  and  pledge  by  virtue  of  the  possession. 

This  advantage  exists  when  notes  and  bills  are  transferred  to  a 
creditor  by  way  of  collateral  security.  His  possession  of  them  gives 
them  the  character  of  a  pledge.  Their  indorsement  if  payable  to  order, 
or  their  delivery  if  payable  to  bearer,  gives  him  the  title  also,  which  is 
something  more  than  a  pledge.  This  double  title  existed  in  White  v. 
Piatt,  and  in  Clarke  v.  Iselin.  Hence  the  actual  possession  of  the 
securities  by  the  creditor  was  a  matter  of  less  importance  in  those  cases. 

Whether  constructive  possession  in  the  creditor  can  be  affirmed, 
where  an  article  to  which  his  only  title  is  that  of  pledge  is  actually  re- 
delivered to  the  debtor,  with  general  authority  to  dispose  of  it  and  sub- 
stitute another  article  of  equal  value  in  its  place,  is  the  question  which 
we  have  to  meet  in  this  case.  Such  a  redelivery  for  a  mere  temporary 
purpose,  as  for  shoeing  a  horse  which  has  been  pledged  and  is  owned  by 
the  farrier,  or  for  repairing  a  carriage  which  has  been  pledged  and  is 
owned  by  the  carriage-maker,  does  not  amount  to  an  interruption  of 
the  pledgee's  possession.  The  owner  is  but  a  mere  special  bailee  for 
the  creditor.  So,  when  the  debtor  is  employed  in  the  creditor's  service, 
his  temporary  use  of  the  pledged  article  in  the  creditor's  business  does 
not  effect  a  restoration  of  the  possession  to  the  debtor.  This  is  in 
accordance  both  with  the  common  and  the  civil  law.  Reeves  v.  Capper 
(5  Bing.  N.  C.  136)  was  a  case  of  this  kind.  A  sea-captain  pledged  his 
chronometer  for  a  debt.  He  was  afterwards  employed  by  the  pledgee 
as  master  of  one  of  his  ships,  and  the  chronometer  was  placed  in  his 
charge,  to  be  used  on  the  voyage.  It  was  held  that  the  possession  of 
the  pledgee  was  not  lost.  He  recovered  the  chronometer  against  a 
person  to  whom  the  master  pledged  it  a  second  time. 

In  Hays  v.  Riddle  (1  Sandf.  (N.  Y.)  248),  the  plaintiff  delivered  to 
the  defendant,  at  his  request,  a  convertible  bond  of  the  New  York  and 
Erie  Rail-Road  Company  (which  had  been  pledged  by  the  latter  to  the 
former),  in  order  to  get  it  exchanged  for  stock  of  the  same  company, 
which  stock  was  to  be  returned  and  substituted  for  the  bond  in  pledge. 
The  defendant  never  returned  either  the  bond  or  the  stock.  The  plain- 
tiff brought  an  action  of  trover  against  him  for  the  bond,  and  recovered 
its  value,  being  less  than  the  debt  for  which  it  was  pledged.  It  being 
objected  that  by  delivering  back  the  bond  to  the  pledgor  the  plaintiff 
had  lost  his  special  property  in  it  as  pledgee,  the  court  said  :  "  At  com- 
mon law,  as  a  general  rule,  the  positive  delivery  back  of  possession  of  the 
thing,  with  the  consent  of  the  pledgee,  terminates  his  title.  2  Pick. 
607;  15  Mass.  389.  If  the  thing,  however,  is  delivered  back  to  the 
owner  for  a  temporary  purpose  only,  and  it  is  agreed  to  be  redelivered 
by  him,  the  pledgee  may  recover  it  against  the  owner,  if  he  refuse  to 
restore  it  to  the  pledgee,  after  the  purpose  is  fulfilled.  2  Taunt.  266; 
Story  on  Bailm.,  §  299.     So,  if  it  be  delivered  back  to  the  owner  in 


108  PLEDGES. 

a  new  character  ;  as,  for  example,  as  a  special  bailee  or  agent.  In  such 
case,  the  pledgee  will  still  be  entitled  to  the  pledge,  not  only  as  against 
the  owner,  but  also  as  against  third  persons.     14  Pick.  497." 

In  Macomber  v.  Parker  (14  Pick.  (Mass.)  497),  referred  to  in  the  last 
case,  the  proprietors  of  a  brickyard  contracted  it  out  on  shares  to  a 
brickmaker,  agreeing  to  advance  the  money  requisite  to  carry  on  the 
manufacture  of  bricks,  and,  after  being  repaid  their  advances,  to  divide 
the  profits  with  the  latter.  It  was  agreed  that  the  bricks,  as  fast  as 
made,  should  be  pledged  to  the  owners  of  the  yard  as  security  of  their 
advances  ;  but  the  brickmaker  was  to  keep  them  in  his  charge,  and  sell 
them  at  retail,  and  as  often  as  he  got  the  amount  of  a  hundred  dollars 
from  the  sales  he  was  to  deposit  it  in  bank  to  the  credit  of  the  owners. 
The  bricks  were  afterwards  attached  as  to  the  share  of  the  maker  for 
his  debts.  But  the  court  held  that  the  owners  of  the  yard  had  not, 
by  leaving  the  bricks  in  the  hands  of  the  maker,  lost  their  lien  as  pledgees 
of  the  entire  property.  They  remark :  "  To  say  that  this  limited 
authority  to  sell  the  bricks  by  retail,  in  small  sums,  on  account  of  the 
plaintiffs,  was  a  waiver  of  their  possession  of  the  residue  that  remained 
in  the  kilns  in  their  yard,  would  be  clearly  against  the  intent  and 
meaning  of  the  parties,  unreasonable,  and  unwarranted  by  the  evi- 
dence." Again:  "The  special  authority  given  by  the  plaintiffs  to 
Evans  [the  brickmaker]  was  to  clothe  him  with  the  character  of  agent 
to  a  limited  extent  only,  and  no  remission  to  him,  in  his  character  of 
pledgor,  of  the  plaintiffs'  right  to  retain  the  bricks  according  to  the 
agreement."  To  the  objection  that  retention  of  possession  by  the 
pledgor  would  have  the  effect  to  deceive  those  dealing  with  him,  the 
court  said  :  "  If  the  vendor  or  the  pledgor  should  have  the  actual  posses- 
sion of  the  property  after  it  were  pledged  or  sold,  it  would  only  be 
prima  facie,  but  not  conclusive,  evidence  of  fraud.  The  matter  might 
be  explained  and  proved  to  be  for  the  vendee  or  pledgee.  It  is  a  most 
familiar  principle,  that  one  man  may  have  the  actual  possession  or 
custody,  while  another  has  the  legal  title  and  the  constructive  posses- 
sion. 

In  this  case,  it  will  be  observed,  the  pledgees  were  joint  owners 
of  the  brick,  and  were  owners  of  the  premises  on  which  the  bricks  were 
kept ;  and  the  decision  was  undoubtedly  correct.  But,  in  the  general 
remarks  made  by  the  court,  there  is  manifest,  as  in  many  other  cases, 
a  tendency  to  confound  the  distinction  between  cases  in  which  the 
title  is  in  the  creditor,  and  those  in  which  his  whole  interest  depends  on 
possession.  All  the  cases  cited,  however,  show  that  a  bailment  to  the 
pledgor  for  a  mere  temporary  purpose  for  the  use  of  the  pledgee,  or  for 
the  repair  and  conservation  of  the  pledge,  will  not  destroy  the  latter's 
possession ;  at  the  same  time,  they  imply  that  a  redelivery  to  the 
pledgor,  except  for  the  special  and  temporary  purposes  indicated,  divests 
the  possession  of  the  pledgee,  and  destroys  the  pledge. 

The  civil  law,  which  is  more  particularly  our  guide  in  the  present 


POSSESSION    ESSENTIAL.  109 

case,  is  to  the  same  general  effect ;  though  it  is  more  careful  in  denounc- 
ing the  danger  of  losing  the  right  of  pledge  by  parting  with  anything 
like  permanent  or  continued  possession  to  the  pledgor  ;  and  it  preser 
very  clearly  the  distinction  between  pledge  and  hypothecation,  or 
mortgage.  The  old  civil  law  of  the  Digest,  it  is  true,  was  more  indul- 
gent, and  permitted  the  pledge  to  be  delivered  to  the  pledgor  without 
prejudice  to  the  security,  in  a  manner  that  would  not  be  allowed  at  the 
present  day.  Thus,  in  book  xiii.  of  the  Digest,  title  vii.,  law  35,  Modes- 
tinus  says :  "  a  pledge  transfers  only  the  possession  to  the  creditor, 
the  property  remaining  in  the  debtor ;  yet  the  debtor  may  have  the 
use  of  it,  either  as  a  gratuity,  or  for  hire."  And  Paulus,  in  the  same 
title,  law  37,  says :  "  If  I  lend  a  pledge  to  the  owner  thereof,  I  retain 
possession  by  means  of  the  loan;  for  before  the  debtor  borrowed  it, 
the  possession  was  not  in  him ;  and  when  he  borrowed  it,  it  was  my 
intention  still  to  retain  the  possession,  and  it  was  not  his  to  acquire  it." 
Pothier's  Pandects,  vol.  vii.,  p.  360. 

As  to  this  law  of  the  Digest,  Mr.  Bell,  in  his  Commentaries  on 
the  Scotch  Law,  remarks  as  follows :  "  Voet  very  justly  observes, 
in  criticising  this  law,  that  to  permit  such  practices  were  to  en- 
danger the  safety  of  other  creditors,  and  to  sanction  a  fraud  upon 
the  rule  which  requires  possession  to  complete  a  real  right  to  mov- 
ables ;  and  that  no  true  analogy  can  hold  between  the  law  of 
Rome,  where  hypothecs  without  possession  were  admitted,  and  the 
laws  of  modern  commercial  nations,  in  which  the  rule  is  established 
that  possession  preserves  property.  It  is  true,"  Bell  continues, 
"that,  in  the  course  of  many  contracts,  there  is  a  necessity  for 
separating  property  and  possession ;  and  that  the  mere  circumstance 
of  goods  being  in  the  hands  of  another  on  a  temporary  contract  will 
not  deprive  the  real  proprietor  of  his  right,  in  favour  of  the  credi- 
tors of  the  temporary  possessor.  And  there  seems  to  be  no  doubt 
that  the  right  of  a  pledgee  will  also  be  sufficiently  strong  to  support 
this  temporary  dereliction  of  possession,  in  the  course  of  necessary  oper- 
ations on  it ;  the  manufacturer,  or  other  holder,  being  custodier  for  the 
pledgee,  without  injury  to  the  real  security.  But  the  doctrine  delivered 
by  Voet  is  sound,  where  the  possession  is  given  up  without  necessity 
to  the  owner  of  the  goods."     2  Bell.  Com.  (7th  ed.),  p.  22. 

[The  discussion  of  the  modern  French  law,  requiring  possession  to 
be  in  pledgee,  as  embodied  in  the  Civil  Code  of  Louisiana,  and  of  the 
rights  of  the  receiver  of  the  bank  to  insist  that  the  transaction  was 
invalid  as  to  the  bank's  creditors,  is  omitted.] 

On  this  ground,  therefore,  of  want  of  possession  in  the  pledgee,  or  of 
a  third  person  agreed  upon  by  the  parties,  and  of  actual  possession 
and  control  in  the  pledgor,  we  feel  compelled  to  hold  that  the  Credit 
Mobilier  had  no  privilege  as  to  third  persons,  and  that  the  receiver  was 
entitled  to  the  securities  in  question. 

The  decree  will,  accordingly,  be  reversed,  and  the  cause  remanded     i 


110  PLEDGES. 

the  Circuit  Court  with  directions  to  enter  a  decree  in  favour  of  the 
complainant  below  in  conformity  to  this  opinion ;    and  it  is 

So  ordered. 
Mr.  Justice  Swayne,  Mr.  Justice  Field,  and  Mr.  Justice  Harlan 
dissented. 


GEILFUSS  v.   CORRIGAN. 

95  Wis.  651 ;   70  N.  W.  R.  306 ;   60  Am.  St.  R.  143.     1897. 

This  is  an  action  to  recover  the  value  of  10,800  tons  of  pig  iron  levied 
on  by  the  sheriff  of  Mercer  county,  Pennsylvania,  on  the  19th  day  of 
July,  1893,  upon  an  execution  issued  out  of  the  court  of  common  pleas 
of  Mercer  county,  Pennsylvania,  upon  a  judgment  in  favour  of  Price 
McKinney,  receiver  of  Corrigan,  Ives  &  Co.,  for  $178,908,  against  the 
Douglas  Furnace  Company,  a  corporation  under  the  laws  of  the  state 
of  Illinois.  The  title  of  the  iron  is  the  question  in  controversy  in  this 
case.  The  plaintiff,  as  assignee  of  the  bank,  claims  a  right  in  this  iron, 
as  pledgee  of  the  Buffalo  Mining  Company,  a  Wisconsin  corporation, 
and  of  Ferdinand  Schlesinger,  to  secure  certain  loans  made  by  the  bank 
to  the  Buffalo  Mining  Company,  and  to  Schlesinger.  The  defendants, 
who  are  members  of  the  firm  of  Corrigan,  Ives  &  Co.,  justified  the  seiz- 
ure and  subsequent  sale  of  the  iron  under  the  said  execution  against  the 
Douglas  Furnace  Company,  on  the  ground  that  the  attempted  transfer 
or  pledge  of  the  same  was  fraudulent  and  void  as  against  creditors  of 
the  Douglas  Furnace  Company. 

[The  evidence  is  sufficiently  summarised  in  the  opinion.  There  was 
judgment  against  the  defendants,  and  they  appeal.] 

Winslow,  J.  [Certain  "storage  warrants"  issued  by  the  Douglas 
Furnace  Co.  under  which  plaintiff,  as  assignee,  claimed  title  to  the  iron 
in  question,  are  held  not  to  be  warehouse  receipts  and  therefore  in- 
effectual.] 

Thus,  at  the  outset  of  the  case,  it  appears  that  the  plaintiff  had  no 
interest  in  or  lien  upon  the  iron  in  question,  as  indorsee  of  a  warehouse 
receipt  nor  as  a  chattel  mortgagee.  Nor  can  it  be  claimed  that  the 
plaintiff  actually  bought  or  obtained  legal  title  to  the  iron.  These  pos- 
sible claims  being  thus  eliminated,  we  know  of  no  other  claim  which  the 
plaintiff  can  make,  unless  it  be  a  claim  as  pledgee  of  the  iron  as  collat- 
eral to  the  debts  of.  the  Buffalo  Mining  Company,  and  of  Schlesinger ; 
and  this,  in  fact,  is  the  claim  made  in  the  complaint,  and  the  only 
claim  which  the  evidence  tends  to  justify.  It  becomes  necessary,  then, 
to  consider  the  question  whether  the  evidence  shows  a  valid  pledge. 
The  principles  of  law  governing  a  pledge  of  personal  property  are 
simple  and  familiar.  'To  constitute  a  valid  pledge,  there  must  be  trans- 
fer of  possession  to  the  pledgee,  actual  or  constructive.     Seymour  v. 


POSSESSION    ESSENTIAL.  HI 

Colburn,  43  Wis.  71.  A  pledge  differs  from  a  mortgage  in  this  impor- 
tant respect ;  namely,  that  the  legal  title  to  the  property  pledged  remains 
in  the  pledgor,  subject  to  the  pledgee's  lien  for  his  debt,  while  a  mort- 
gage passes  the  legal  title  to  the  mortgagee.  In  the  case  of  a  pledge,  a 
lien  is  created,  to  the  existence  of  which  possession  is  absolutely  neces- 
sary ;  in  the  case  of  a  mortgage,  title  passes,  subject  to  be  revested  by 
performance  of  a  condition  subsequent.  Jones,  Pledges,  §§4,  7 ; 
Thompson  v.  Dolliver,  132  Mass.  103.  Therefore,  if  the  bank  had  any 
interest  in  the  iron  at  the  time  of  its  seizure,  it  was  that  of  a  lien  thereon, 
by  way  of  a  pledge. 

In  considering  the  question  of  whether  it  had  such  a  lien  which  was 
valid  as  against  the  creditors  of  the  furnace  company,  a  brief  recapitu- 
lation of  the  essential  facts  will  be  useful.  Ferdinand  Schlesinger 
owned  two  corporations  —  one,  a  mining  corporation,  engaged  in  mining 
ore  in  Michigan ;  the  other,  a  furnace  company,  engaged  in  smelting 
ore  in  Pennsylvania.  These  corporations  were  nominally  furnished 
with  full  complements  of  officers,  but  in  fact  the  business  of  each  was 
directed  and  controlled  by  Schlesinger  as  though  it  were  his  own.  The 
furnace  company  had  a  large  stock  of  pig  iron  constantly  on  hand  in  its 
yards  in  Pennsylvania,  and  was  largely  indebted  to  Corrigan,  Ives  &  Co., 
of  whom  it  purchased  its  iron.  It  refused  to  give  Corrigan,  Ives  &  Co. 
security  on  the  iron,  on  the  ground  that  such  a  course  would  injure  its 
credit.  In  order  to  raise  money  for  the  furnace  company,  Schlesinger 
caused  the  furnace  company  to  issue  apparent  storage  receipts  to  the 
mining  company,  without  consideration,  and  without  agreement  to 
purchase,  and  without  selection  or  delivery  of  the  property,  either  actual 
or  constructive,  unless  the  handing  over  of  the  receipts  be  delivery, 
and  with  the  agreement  that  the  receipts  should  be  returned  whenever 
the  furnace  company  needed  them  on  account  of  sale  of  the  iron.  On 
receiving  the  receipts,  he  borrowed  money  of  the  plaintiff  bank  upon 
the  notes  of  the  mining  company,  secured  by  assignment  of  the  receipts 
as  collateral.  What  was  done  with  all  the  money  so  borrowed  does 
not  appear.  The  original  purpose  seems  to  have  been,  as  said  in  respon- 
dent's brief,  to  raise  money  for  the  furnace  company,  and  the  evidence 
shows  the  fact  that  the  mining  company  was  almost  daily  remitting 
money  in  large  amounts  to  the  furnace  company,  as  well  as  the  fact 
that  the  furnace  company  was  frequently  remitting  to  the  mining 
company.  None  of  the  remittances  were  made  in  payment  of  the  iron 
certificates,  nor  were  they  ever  intended  to  be  applied  thereon.  The 
fact  seems  to  be  that  each  enterprise  was  bolstering  up  the  other  as 
occasion  required,  or,  rather,  that  Mr.  Schlesinger  was  using  the 
property  and  credit  of  his  apparently  separate  concerns  indiscriminately, 
to  obtain  money  as  it  was  needed.  It  seems  probable  that  much  of  the 
money  borrowed  on  the  notes  of  the  mining  company  secured  by  the 
receipts  in  question  was  forwarded  to  the  furnace  company. 

The  court  found  that  the  bank  took  the  certificates  innocently, 


112  PLEDGES. 

without  knowledge  of  any  defect.  We  cannot  probably  disturb  this 
finding,  because  it  is  based  on  the  affirmative  evidence  of  the  cashier 
who  made  the  loans  ;  but,  in  view  of  the  facts  proven  on  cross-examina- 
tion of  the  cashier  himself,  this  finding  seems  to  be  a  considerable  tax 
on  the  credulity.  The  facts  are,  in  brief,  that  the  cashier  was  well 
acquainted  with  Mr.  Schlesinger,  so  much  so  that  in  1892  Mr.  Schles- 
inger  put  in  his  hands  one  share  of  stock  in  the  Buffalo  Mining  Company, 
in  order  that  he  might  become  a  director  of  the  company,  and  he  was 
thereupon  made  a  director  and  secretary  of  the  company,  and  re- 
mained such  until  April,  1893,  when  he  resigned,  and  returned  his  share 
of  stock.  This  was  after  the  loans  on  the  credit  of  the  receipts  had  be- 
gun to  be  made.  Notwithstanding  his  high  official  position  in  the 
mining  company,  he  testifies  that  he  "knew  nothing  of  its  business," 
except  that  it  was  engaged  in  mining.  We  think  he  could  hardly  have 
failed  to  discover  the  manner  in  which  Mr.  Schlesinger  conducted  the 
business  of  his  nominal  corporations.  However  this  may  be,  he  knew, 
as  he  testifies,  that  the  mining  company  was  engaged  in  mining  ore, 
and  not  in  buying  or  selling  pig  iron.  He  knew  "something"  about 
the  furnace  company ;  knew  where  it  was  doing  business  ;  knew  Mr. 
Hirshfeld,  the  nominal  president ;  discounted  some  of  the  furnace 
company's  paper,  obtained  general  information  about  it  by  inquiries 
through  commercial  agencies  at  the  time  of  the  pledging  of  the  receipts. 
In  view  of  all  these  facts  which  were  within  his  knowledge,  and  the  facts 
which  he  might  have  ascertained  without  difficulty  by  very  little  inquiry, 
it  seems  almost  an  impeachment  of  his  intelligence  to  say  that  he  received 
the  receipts  in  ignorance  of  any  defect  or  infirmity  in  them  ;  but  we  sup- 
pose we  are  bound  by  the  finding,  and  we  shall  proceed  on  that  basis. 
It  is  very  apparent  that,  had  the  certificates  remained  in  the  hands 
of  the  mining  company,  they  would  have  constituted  no  obstacle  to  cred- 
itors of  the  furnace  company  in  the  collection  of  their  debts.  They 
were  subject  to  nearly,  if  not  quite,  all  the  objections  which  render  trans- 
fers void  as  to  creditors.  They  were  absolutely  false  in  fact.  There 
was  no  change  of  possession  of  the  iron ;  no  payment  nor  agreement  to 
pay  for  it ;  no  intention  to  pass  title.  They  were  the  merest  shams. 
There  was  in  effect  an  agreement  that  the  furnace  company  should 
remain  the  apparent  owner,  with  the  right  to  sell  and  receive  and  dis- 
pose of  the  proceeds  of  sales,  and  that  it  should  have  the  right  to  call 
back  certificates  whenever  it  needed  them  for  this  purpose ;  and  it 
was  further  expected  that,  when  the  need  for  borrowing  money  was 
over,  the  certificates  should  all  be  returned.  The  scheme  was  cer- 
tainly a  brilliant  one.  If  successful,  it  created  a  shifting  title  or  inter- 
est, which  readjusted  itself  from  day  to  day  as  the  stock  changed, 
automatically  attaching  to  each  new  pig  of  iron  as  it  emerged  glowing 
from  the  furnace,  and  with  equal  facility  detaching  itself  from  each  pig 
that  was  sold  as  it  was  loaded  on  the  car  for  transportation  to  the 
vendee.     Certainly,  if  such  a  scheme  could  be  successful,  the  inventor 


POSSESSION    ESSENTIAL.  113 

should  take  high  rank  among  a  certain  class  of  financiers  ;  and  the  laws 
which  have  been  supposed  to  prevent  secret  transfers  and  conveyanc 
in  fraud  of  creditors  must  be  at  once  revised,  or  they  will  pass  into  the 
dim  limbo  of  unexecuted  and  worn-out  legislation. 

It  is  seriously  and  ably  argued  that  the  scheme  has  been  successful  ; 
that  the  original  transaction  has  been  purged  of  all  objections  by  tin 
intervention  of  the  innocent  third  person,  in  the  shape  of  the  plaintiff 
bank;  and  thus  that  the  shifting  and  self-adjusting,  but  void,  title  of 
the  mining  company  has  been  turned  into  an  equally  shifting  and  delu- 
sive, but  good,  lien  for  the  benefit  of  the  bank, — alien  which  is  secret  and 
invisible  to  creditors,  but  entirely  visible  and  very  real  to  the  plaintiff. 
As  before  said  in  this  opinion,  the  only  interest  which  the  plaintiff  claims 
or  can  claim  in  the  iron  in  question  is  that  of  a  lien  thereon  as  pledgee ; 
and,  in  order  to  make  a  valid  pledge,  there  must  have  been  either  actual 
or  constructive  delivery  of  the  property  pledged.  Bona  fides  does  not 
avail  the  pledgee  in  the  absence  of  delivery  and  possession,  either  actual 
or  constructive.  There  was  confessedly  no  actual  delivery  here,  and 
the  only  thing  that  can  be  claimed  to  be  a  symbolical  or  constructive 
delivery  is  the  indorsement  and  delivery  of  the  false  receipts.  Hence 
the  question  becomes  whether  the  delivery  of  the  receipts  under  the 
circumstances  is  a  constructive  delivery  of  so  much  iron.  Had  they  been 
in  fact  warehouse  receipts,  the  transfer  and  indorsement  thereof  by  way 
of  pledge  would  have  operated  as  a  sufficient  constructive  delivery  of 
the  property,  both  by  the  common  law  and  by  the  statute.  R.  S.  § 
4194;  Shepardson  v.  Cary,  supra;  Price  v.  Wis.  M.  &  F.  Ins.  Co., 
supra.  Bills  of  lading  and  railroad  receipts  are  placed  by  the  statutes 
of  both  states  on  the  same  footing.  See  statutes  of  Pennsylvania  be- 
fore cited  in  this  opinion.  The  reasons  for  this  rule  are  very  apparent. 
In  such  cases  the  property  itself  is  in  the  hands  of  a  third  person  or 
corporation,  instead  of  in  the  possession  of  the  vendor  or  pledgor.  Con- 
sequently it  does  not  furnish  any  false  basis  of  credit,  nor  is  any  creditor 
deceived,  because  it  is  well  understood  that  goods  in  the  hands  of  ware- 
housemen or  carriers  are  or  may  be  the  property  of  others,  and,  by  the 
long  usage  of  trade,  subject  to  just  this  mode  of  transfer.  No  such 
considerations,  however,  apply  in  the  case  of  goods  in  the  possession 
of  the  vendor  or  pledgor,  or  of  some  third  person  who  is  not  a  warehouse- 
man or  wharfinger,  and  we  know  of  no  rule  which  makes  the  mere  de- 
livery of  a  receipt  a  constructive  delivery  of  the  property  in  pledge  in 
such  a  case.  In  Shepardson  v.  Cary,  supra  (which  was  an  action  in 
equity  to  enforce  a  pledge  of  personal  property  as  collateral,  alleged  to 
have  been  made  by  means  of  transfer  of  a  warehouse  receipt),  Dixon. 
C.  J.,  says  :  "To  uphold  the  receipt  as  a  proper  warehouse  document 
transferring  the  title  to  the  property,  and  operating  as  a  good  construc- 
tive delivery  of  it  to  the  vendee,  it  must  in  all  cases  distinctly  appear 
that  it  was  executed  by  a  warehouseman,  one  openly  engaged  in  thai 
business,   and  in  the  usual  course  of  trade."     There  are  numerous 


114  PLEDGES. 

examples  of  constructive  delivery  in  the  books,  but  none,  we  think, 
which  holds  that  the  facts  here  constitute  such  delivery.  Constructive 
or  symbolical  delivery  is  permitted  because  of  the  difficulty  or  impossi- 
bility in  some  cases,  of  actual  delivery.  Thus,  where  the  goods  are 
very  bulky,  as  logs  in  a  boom,  delivery  may  be  made  by  pointing  them 
out  to  the  pledgee ;  or,  where  they  are  goods  in  a  warehouse,  by  a 
delivery  of  the  keys  ;  or,  where  a  savings  bank  deposit  is  to  be  pledged, 
it  may  be  done  by  delivery  of  the  pass  book.  Jewett  v.  Warren,  12 
Mass.  300 ;  Jones,  Pledges,  §§  36,  37 ;  Boynton  v.  Payrow,  67  Me.  587 
[127].  So,  also,  where  goods  are  in  possession  of  a  third  person,  and  the 
pledgor  gives  an  order  on  the  custodian  to  hold  the  goods  for  the  pledgee, 
which  is  brought  to  the  knowledge  of  the  custodian,  it  seems  that  this 
would  be  a  sufficient  delivery  and  change  of  possession.  Whitaker  v. 
Sumner,  20  Pick.  399  ;  Tuxworth  v.  Moore,  9  Pick.  347.  In  all  these 
cases  it  will  be  readily  seen  that  the  property  is  placed  beyond  the  con- 
trol of  the  pledgor,  and  is  not  being  used  to  maintain  an  appearance  of 
wealth  by  either  the  pledgor  or  others  with  the  consent  of  the  pledgee. 
In  the  present  case  there  is  no  such  element.  The  pledgee  never  saw 
or  attempted  to  see  the  iron  described  in  the  certificates,  and  made  no 
inquiries  concerning  it.  It  never  notified  the  furnace  company  that 
it  held  any  certificates  in  pledge,  or  claimed  any  interest  in  any  iron  in 
its  possession.  It  tacitly  allowed  the  furnace  company  to  go  on  in  its 
business  for  months,  selling  out  the  very  iron  nominally  covered  by  the 
certificates,  and  replacing  it  with  other  iron,  and  collecting  and  using  the 
proceeds  of  its  sales.  There  can  be  no  constructive  or  symbolical 
delivery  and  continuance  of  possession  logically  claimed  where  such  a 
state  of  facts  appears.  Conceding  that  the  title  to  the  iron  was  in  the 
mining  company,  the  furnace  company  was  the  custodian,  and  the  cus- 
todian received  no  notice  of  pledge,  made  no  agreement  to  hold  for  the 
benefit  of  the  pledgee,  but  went  on  in  business,  selling  the  property, 
and  substituting  other  property  in  its  place,  with  no  one  to  hinder  or 
make  it  afraid.  Apparently  the  owner  of  more  than  20,000  tons  of 
iron,  it  was  (if  plaintiff's  theory  is  correct)  really  not  the  owner  of  it  in 
case  a  creditor  appeared  with  an  execution.  It  was  held  in  Casey  v. 
Cavaroc,  96  U.  S.  467,  that  where  property  alleged  to  have  been  pledged 
has  at  all  times  been  in  the  actual  possession  of  the  pledgor,  with  author- 
ity to  dispose  of  it  and  substitute  another  article  of  equal  value  in  its 
place,  there  exists  no  pledge  as  against  third  persons.  No  reason  is 
perceived  why  this  is  not  wholesome  doctrine,  nor  why  it  does  not  apply 
with  equal  force  to  possession  by  a  third  person,  with  power  of  sale  and 
substitution,  as  in  the  present  case.  Our  conclusion  is  that,  as  against 
third  persons,  the  bank  never  perfected  its  pledge  by  obtaining  posses- 
sion, either  actual  or  constructive,  of  the  iron  named  in  the  certificates, 
and  hence  that  it  cannot  maintain  this  action. 
[Discussion  of  other  points  is  omitted.] 
These  views  necessitate  reversal  of  the  judgment. 


DUTIES    OF    PLEDGEE.  115 

2.   DUTIES  OF  PLEDGEE. 

ST.   LOSKY  v.   DAVIDSON. 
6  Cal.  643.     1856. 

The  plaintiffs  brought  their  action  for  damages  for  injuries  occurring 
to  certain  cases  of  cigars,  pledged  to  defendants  as  security  for  a  loan, 
by  the  negligence  of  defendants  in  storing  the  same.  The  facts  of  the 
case  are  as  follows  :  — 

The  plaintiff  pledged  to  defendants  a  lot  of  cigars  to  secure  certain 
notes.  The  written  memorandum,  signed  by  the  plaintiff,  contained 
the  following  words  :  "  We  have  this  day  delivered,  as  collateral  security 
for  the  above  note,  to  the  said  Emanuel  Berri,  eighty-two  cases  of 
cigars,  who  has  stored  the  same  in  the  Bay  Warehouse  at  our  risk  and 
expense." 

The  cigars  were  deposited  in  the  Bay  Warehouse  as  the  property, 
and  subject  to  the  order  of  Berri,  one  of  the  defendants.  Afterwards, 
on  account  of  some  injury  to  the  warehouse,  the  keeper,  without  the 
order  or  knowledge  of  the  defendants,  removed  them  to  another  place 
which  was  damp  and  unfit  for  the  storage  of  such  goods,  and  in  conse- 
quence of  the  removal,  the  cigars  were  damaged,  and  their  value  greatly 
impaired.     The  Court  below  nonsuited  the  plaintiffs. 

Plaintiffs  appealed. 

Mr.  Justice  Terry.  A  pledge  is  a  bailment  which  is  reciprocally 
beneficial  to  both  parties.  The  law  therefore  requires  of  the  pledgee 
the  exercise  of  ordinary  diligence  in  the  care  and  custody  of  the  goods 
pledged,  and  he  is  responsible  for  ordinary  negligence.  Story  on  Bail- 
ments, §§  323,  332;  Smith's  Lead.  Ca.  251,  258.  What  will  amount 
to  ordinary  negligence  must  depend  on  the  circumstances  of  the  trans- 
action, and  the  character  of  the  pledge.  In  general,  it  may  be  defined 
to  be  the  neglect  to  exercise  that  degree  of  care  which  an  ordinarily 
prudent  man  usually  bestows  upon  his  own  property  of  like  description. 

Was  the  liability  of  defendants  changed  by  the  stipulation,  and  if  so, 
to  what  extent  ? 

It  is  contended  that  it  was  competent  for  the  parties,  to  stipulate 
for  a  different  degree  of  liability  to  that  which  would  attach  in  the 
absence  of  an  express  contract,  and  that  the  words,  "stored  in  the 
Bay  Warehouse  at  our  risk  and  expense,"  operated  to  discharge  the 
defendants  from  all  responsibility  on  account  of  damages  from  any 
other  cause  than  intentional  fraud  of  defendants. 

We  do  not  give  the  words  cited  a  construction  so  comprehensive.  In 
our  opinion  they  could  operate  to  release  the  defendants  from  respon- 
sibility only  while  the  goods  remained  in  the  place  designated.  Tpon 
their  removal  it  was  avoided,  and  the  defendant's  liability  was  such  as 
by  law  attaches  under  like  contracts. 


116  PLEDGES. 

The  fact  that  the  goods  were  removed  by  the  keeper  of  the  warehouse 
without  the  direction  or  knowledge  of  defendants,  is  not  material ;  it 
was  their  duty  to  see  that  goods  were  kept  in  the  place  agreed  on,  or, 
if  a  removal  was  necessary,  to  have  them  stored  in  a  secure  and  proper 
place.  The  keeper  of  the  warehouse,  as  the  agent  or  bailee  of  defend- 
ants, is  responsible  to  them  for  any  damage  resulting  from  his  un- 
authorised acts. 

Judgment  reversed  and  cause  remanded. 


DRAKE  v.   WHITE. 
117  Mass.  10.     187.'). 

Contract  upon  the  following  agreement,  signed  by  the  defendants : 
"Boston,  October  22,  1872.  Received  of  John  E.  Drake,  one  Morris  & 
Ireland  fire  proof  safe,  which  we  promise  to  deliver  the  same  to  said 
Drake,  or  its  equivalent  in  money,  on  payment  of  a  certain  note  signed 
by  said  Drake,  dated  October  22,  1S72,  payable  in  four  months  from 
date,  for  the  sum  of  8276.(58. "  Trial  in  the  Superior  Court,  before 
Putnam,  J.,  who  allowed  a  bill  of  exceptions  in  substance  as  follows  :  — 

The  plaintiff  purchased  leather  of  the  defendants,  giving  them  his 
note  for  the  price  thereof,  and,  to  secure  the  payment  of  the  note,  de- 
posited with  them  the  safe  in  question,  giving  them  a  bill  of  sale  of  the 
safe,  upon  the  back  of  which  was  written  the  agreement  upon  which 
this  action  is  brought. 

The  plaintiff  testified  that  he  authorised  the  defendants  to  find  a 
customer  for  the  safe,  which  he  desired  to  sell,  and  authorised  the  de- 
fendants to  sell  it  for  8400,  but  that  any  customer  for  a  less  price  was 
to  be  referred  to  him.  The  defendants  testified  that  they  were  author- 
ised to  sell  it  for  8300,  but  that,  if  any  less  sum  was  offered  for  the 
safe,  they  were  to  inform  the  plaintiff,  who  was  to  decide  about  accept- 
ing the  offer.     No  customer  was  found  for  the  safe. 

The  plaintiff  paid  his  note  at  maturity,  and  made  a  demand  for  the 
safe,  before  bringing  this  action.  The  safe  was  destroyed  by  the  fire 
of  November  9,  1872,  and  there  was  no  evidence  of  negligence  or  want 
of  due  care  upon  the  part  of  the  defendants. 

The  judge  instructed  the  jury,  that  by  the  terms  of  the  agreement 
the  defendants  were  bound  to  account  to  the  plaintiff  for  the  value  of 
the  safe  as  it  was  when  deposited  with  them.  The  jury  returned  a  ver- 
dict for  the  plaintiff ;    and  the  defendants  alleged  exceptions. 

Ames,  J.  This  is  a  case  of  a  deposit  of  personal  property  by  a  debtor 
in  the  hands  of  a  creditor  as  collateral  security  for  the  debt.  If  it 
presented  merely  the  ordinary  incidents  of  a  pledge,  it  would  be  manifest 


DUTIES    OF    PLEDGEE.  \yj 

that  the  action  could  not  be  maintained.  The  destruction  of  the  prop- 
erty is  conceded  to  have  been  accidental,  without  fault  or  neglect  of 
duty  on  the  part  of  the  defendants. 

But  the  claim  of  the  plaintiff  is,  that  the  transaction  differs  widely 
from  an  ordinary  pledge,  and  he  contends  that,  by  the  terms  of  a  written 
contract,  the  defendants  have  taken  upon  themselves  a  special  liability 
of  a  much  more  extensive  character.  If,  in  the  common  case  of  a 
pledge,  the  common  law  contract  were  reduced  to  writing,  it  would 
contain  among  other  things  a  stipulation  that  the  pledgee  should  not 
be  responsible  for  the  loss  of  the  property,  unless  some  want  of  reason- 
able and  ordinary  care  on  his  part  were  the  cause  of  such  loss.  In  the 
present  case  the  parties  have  reduced  their  contract  to  writing,  and  have 
omitted  to  attach  to  the  defendants'  liability  for  the  property  any  limi- 
tation whatever.  On  the  contrary,  their  express  promise  is  to  do  one 
or  the  other  of  two  things :  either  to  return  the  property  specifically, 
or  to  pay  for  it  in  money.  There  can  be  no  doubt  that  if  a  creditor 
sees  fit  to  accept  a  deposit  of  security  upon  such  terms,  and  to  place  him- 
self in  the  position  of  an  insurer  of  its  safety,  he  can  legally  do  so.  It  is 
not  difficult  to  suppose  a  case  in  which  the  parties  might  find  it  convenient 
that  the  business  of  guarding  against  the  risk  of  fire  or  other  accident 
should  be  attended  to  by  the  depositary.  But  however  that  may  be, 
the  proper  interpretation  of  the  contract  is  to  be  determined  by  the 
general  rules  of  construction  recognised  by  the  law ;  and  if  the  parties 
have  improvidently  made  their  contract  more  onerous  than  they 
expected,  the  difficulty  cannot  be  removed  by  a  violation  of  those 
rules. 

It  is  said  that  the  written  instrument  declared  upon  is  a  receipt,  and 
as  such  is  open  to  explanation.  It  is  true  that  it  is  a  receipt,  but  it  is 
also  a  promise  clearly  expressed.  Brown  v.  Cambridge,  3  Allen,  474. 
We  see  no  way  to  avoid  the  conclusion  that  the  plaintiff's  construction 
of  that  promise  is"  correct.  The  difficulty  with  the  defendants'  case 
is,  that,  although  their  purpose  was  to  take  collateral  security  for  a 
debt,  the  terms  in  which  they  have  expressed  themselves  as  to  what 
they  are  to  do  with  the  pledge  on  the  payment  of  the  debt  contain  a 
positive  and  unequivocal  promise  either  to  return  it,  or  to  pay  an  equiv- 
alent. The  fact  that  one  part  of  this  alternative  promise  has  become 
impossible  of  fulfilment  does  not  relieve  them  from  the  other.  Chit, 
on  Con.  (11th  Am.  ed.),  1061 ;  Stevens  v.  Webb,  7  C.  &  P.  60;  State 
v.  Worthington,  7  Ohio,  171. 

Exceptions  overruled. 


118  PLEDGES. 

3.   LIEN. 

STEARNS  v.  MARSH. 
4  Denio  (N.  Y.  S.  C),  227;   47  Am.  D.  248.     1847. 

Assumpsit  by  the  payees  against  the  makers  of  a  promissory  note. 
Plea,  non-assumpsit.  The  cause  was  tried  at  the  Niagara  circuit,  in 
October,  1845,  before  Dayton,  C.  Judge.  The  note  was  dated  July  5, 
1837,  and  was  for  the  sum  of  $436.54,  payable  in  four  months  from 
date.  The  defendants  resided  at  Haverhill,  Mass. ;  and  the  plaintiffs 
at  Boston.  It  appeared  that  the  note,  at  its  date,  was  sent  to  the 
plaintiffs  in  a  letter,  from  the  defendants,  in  which  they  stated  that 
they  had  on  that  day  forwarded  to  the  plaintiffs,  by  team,  ten  cases, 
numbered  1  to  10,  of  boots  and  shoes,  of  the  value,  according  to  an 
invoice  contained  in  the  letter,  of  $520.32,  "as  collateral  security"  for 
the  note.  They  added,  "We  hope  that  now  everything  will  be  satis- 
factory ;  and  should  you  find  a  purchaser  for  the  shoes  in  season  to  meet 
your  demand,  we  should  be  glad  to  have  them  sold."  On  the  17th  of 
the  same  month,  the  defendants  wrote  to  the  plaintiffs,  that  they  had 
learned  that  there  was  to  be  a  public  sale  of  boots  and  shoes  at  O. 
Rich's  Broad-street,  on  the  19th  instant,  and  added :  "  If  you  please, 
you  may  put  in  three  of  the  cases  of  the  boots  we  sent  you  (Nos.  5,  6, 
and  7),  and  take  the  proceeds.  Please  send' us  the  account  of  sales, 
and  indorse  the  proceeds  on  your  note."  On  the  2d  day  of  November 
following,  the  plaintiffs  caused  a  notice  of  a  sale  of  "  a  large  and  general 
assortment  of  boots  and  shoes"  to  be  inserted  in  an  advertisement  of 
O.  Rich,  the  auctioneer ;  the  sale  to  be  on  the  15th  day  of  that  month, 
at  the  auctioneer's  office.  Other  articles  were  included  in  the  adver- 
tisement, and  the  boots  and  shoes  were  not  otherwise  described  or 
referred  to  than  as  above  stated.  The  advertisement  was  published 
in  a  daily  paper,  printed  in  Boston,  from  the  day  last  mentioned  until 
the  day  of  sale.  The  plaintiffs  sent  the  cases  to  the  auctioneer,  and 
they  were  sold,  pursuant  to  the  notice,  and  produced  $166.97,  besides 
charges,  which  amount  was  indorsed  on  the  note.  It  was  shewn  that 
the  note  was  given,  and  the  boots  and  shoes  sent  to  the  plaintiffs,  in 
consequence  of  their  demanding  security  for  a  debt  against  the  defend- 
ants, Of  the  amount  mentioned  in  the  note.  It  was  proved  that  the 
boots  and  shoes  were  worth  the  amount  mentioned  in  the  invoice  — 
$520.32. 

The  defendants'  counsel  requested  the  judge  to  charge  that  the 
plaintiffs  had  no  right  to  dispose  of  the  property  without  first  giving 
the  defendants  notice  to  redeem  it ;  and  that  having  done  so,  they  were 
accountable  for  its  value;  and  that  if  such  value  was  equal  to  the 
money  due  on  the  note,  that  it  was  extinguished;  and  if  more,  that 
they  were  entitled  to  have  the  balance  certified  in  their  favour.     They 


•     LIEN.  119 

also  insisted  that  the  notice  of  sale  was  insufficient ;  that  it  was  pre- 
maturely given  —  the  note  not  having  fallen  due  when  it  was  first 
published  —  and  that  it  did  not  sufficiently  describe  the  property  or 
state  the  occasion  of  the  sale.  The  judge  declined  to  charge  as  requested, 
but  instructed  the  jury  that  the  plaintiffs  were  entitled  to  a  verdict  for 
the  balance  of  principal  and  interest  due  on  the  note,  crediting  the 
indorsement.  The  defendants'  counsel  excepted,  and  the  jury  found 
a  verdict  according  to  the  instruction.  The  defendants  move  for  a 
new  trial  on  a  bill  of  exceptions. 

Jewett,  J.  The  contract  between  these  parties  was  strictly  a  pledge 
of  the  boots  and  shoes.  At  common  law,  a  pledge  is  defined  to  be  a 
bailment  of  personal  property,  as  a  security  for  some  debt  or  engage- 
ment. (2  Kent's  Com.  577,  5th  ed. ;  Story  on  Bailment,  §  286.)  The 
plaintiffs'  debt,  thus  secured,  became  payable  on  the  8th  day  of  Novem- 
ber, 1837.  On  the  15th  of  that  month,  the  plaintiffs  caused  the  pledge 
to  be  sold  at  a  public  sale  by  an  auctioneer  in  Boston,  pursuant  to  a 
public  notice  published  in  certain  newspapers  in  that  city  from  the  2d 
to  the  15th  of  November  inclusive ;  but  no  notice  of  sale,  or  to  redeem, 
was  at  any  time  given  to  the  defendants.  The  net  proceeds  of  the  sale 
was  $166.97,  which  the  plaintiffs  applied  on  their  debt  without  the 
assent  of  the  defendants. 

The  first  question  made  on  the  argument  is,  whether  the  sale  thus 
made  was  authorised  and  bound  the  defendants.  On  the  part  of  the 
plaintiffs  it  was  insisted,  that  the  pledge  having  been  made  as  a  security 
for  their  debt,  which  was  payable  at  a  future  day,  the  plaintiffs  had  a 
right,  after  a  default  in  payment,  to  sell  the  pledge,  fairly  in  the  usual 
course  of  business ;  without  calling  on  the  defendants  to  redeem,  or 
giving  them  notice  of  the  intended  sale ;  and  that  such  sale  concluded 
the  defendants.  It  is  said  that  the  law  makes  a  distinction  between 
the  case  of  a  pledge  for  a  debt  payable  immediately  and  one  where  the 
debt  does  not  become  payable  until  a  future  day ;  and  that  in  the  latter 
case  the  creditor  is  not  bound  to  call  for  a  redemption  or  to  give  notice 
of  sale,  though  in  the  former  it  is  conceded  that  there  must  be  such 
demand  and  that  notice  must  be  given.  Non-payment  of  the  debt 
at  the  stipulated  time  did  not  work  a  forfeiture  of  the  pledge,  either  by 
the  civil  or  at  the  common  law.  It  simply  clothed  the  pledgee  with 
authority  to  sell  the  pledge  and  reimburse  himself  for  his  debt,  interest 
and  expenses ;  and  the  residue  of  the  proceeds  of  the  sale  then  be- 
longed to  the  pledgor.  The  old  rule,  existing  in  the  time  of  Glanville, 
required  a  judicial  sentence  to  warrant  a  sale,  unless  there  was  a  special 
agreement  to  the  contrary.  But  as  the  law  now  is,  the  pledgee  may 
file  a  bill  in  chancery  for  a  foreclosure  and  proceed  to  a  judicial  sale  ; 
or  he  may  sell  without  judicial  process,  upon  giving  reasonable  notice 
to  the  pledgor  to  redeem,  and  of  the  intended  sale.  I  find  no  authority 
countenancing  the  distinction  contended  for,  but  on  the  contrary,  I 
understand  the  doctrine  to  be  well  settled,  that  whether  the  debt  be 


120  PLEDGES. 

due  presently  or  upon  time,  the  rights  of  the  parties  to  the  pledge  are 
such  as  have  been  stated.  (Cortelyou  v.  Lansing,  2  Caines'  Cas.  in 
Err.  204;  2  Kent's  Com.  5th  ed:,  581,  582;  4  id.  138,  139;  Tuckers. 
Wilson,  1  P.  Wms.  261 ;  Lockwood  v.  Ewer,  2  Atk.  303 ;  Johnson  v. 
Varnon,  1  Bailey's  S.  C.  Rep.  527 ;  Perry  v.  Craig,  3  Missouri  Rep. 
516 ;  Parker  v.  Brancker,  22  Pick.  40 ;  De  Lisle  v.  Priestman,  1  Browne's 
Penn.  R.  176;  Story's  Com.  on  Eq.  §  1008;  Story  on  Bailm.,  §§  309, 
310,  346;  Hart  v.  Ten  Eyck,  2  John.  Ch.  100;  Patchin  v.  Pierce,  12 
Wend.  61 ;  Garlick  v.  James,  12  John.  146.)  Nor  do  I  see  any  reason 
for  such  a  distinction.  In  either  case  the  right  to  redeem  equally  exists 
until  a  sale  ;  the  pledgor  is  equally  interested,  to  see  to  it  that  the  pledge 
is  sold  for  a  fair  price.  The  time  when  the  sale  may  take  place  is  as 
uncertain  in  the  one  case  as  in  the  other ;  both  depend  upon  the  will  of 
the  pledgee,  after  the  lapse  of  the  term  of  credit  in  the  one  case,  and 
after  a  reasonable  time  in  the  other ;  unless  indeed  the  pledgor  resorts 
to  a  court  of  equity  to  quicken  a  sale.  Personal  notice  to  the  pledgor 
to  redeem,  and  of  the  intended  sale,  must  be  given  as  well  in  the  one 
case  as  in  the  other,  in  order  to  authorise  a  sale  by  the  act  of  the  party. 
And  if  the  pledgor  cannot  be  found  and  notice  cannot  be  given  to  him, 
judicial  proceedings  to  authorise  a  sale  must  be  resorted  to.  (2  Stor. 
Com.  on  Eq.,  §  1008.)  Before  giving  such  notice,  the  pledgee  has  no 
right  to  sell  the  pledge  ;  and  if  he  do,  the  pledgor  may  recover  the  value 
of  it  from  him,  without  tendering  the  debt ;  because  by  the  wrongful 
sale  the  pledgee  has  incapacitated  himself  to  perform  his  part  of  the 
contract ;  that  is,  to  return  the  pledge,  and  it  would  therefore  be  nuga- 
tory to  make  the  tender.  (Cortelyou  v.  Lansing,  supra;  Story  on 
Bailm.,  2d  ed.,  349  ;  McLean  v.  Walker,  10  John.  472.) 

The  evidence  in  this  case  shows  that  the  plaintiffs,  in  November,  1837, 
long  prior  to  the  commencement  of  this  suit,  tortiously  sold  the  pledge, 
and  thereby  put  it  entirely  beyond  their  power  to  return  it,  upon  pay- 
ment of  the  debt.  Where  a  pledge  is  made  by  a  debtor  to  his  creditor 
to  secure  his  debt,  for  a  certain  term,  the  law  requires  that  the  latter  shall 
safely  keep  it  without  using  it,  so  as  to  cause  any  detriment  thereto ; 
and  if  any  detriment  happens  to  it  within  the  term  appointed,  it  may  be 
set  off  against  the  debt,  according  to  the  damage  sustained.  And  if 
the  pledge  is  made  without  mention  of  any  particular  term,  the  credi- 
tor may  demand  his  debt  at  any  time.  When  the  debt  is  paid,  the 
creditor  is  bound  to  restore  the  pledge  in  the  condition  he  received  it, 
or  make  satisfaction  for  any  injury  that  it  has  received ;  for  it  is  a  rule 
that  a  creditor  is  to  restore  the  pledge  or  make  satisfaction  for  it ;  if 
not,  he  is  to  lose  his  debt.  (1  Reeve's  Hist.  Eng.  Law,  161,  162.)  If  the 
pledgor,  in  consequence  of  any  default  of  the  pledgee,  or  of  his  conver- 
sion of  the  pledge,  has  by  any  action  recovered  the  value  of  the  pledge, 
the  debt  in  that  case  remains,  and  is  recoverable,  unless  in  such  prior 
action  it  has  been  deducted.  By  the  common  law  the  pledgee,  in  such 
an  action  brought  for  the  tort,  has  a  right  to  have  the  amount  of  his 


LIEN.  121 

debt  recouped  in  the  damages.  (Bac.  Abr.  Bailment,  B. ;  Jarvis  v. 
Rogers,  15  Mass.  R.  389 ;  Story  on  Bailm.,  2d  ed.,  §§  315,  349.) 

The  plaintiffs  were  wrongdoers  in  selling  the  pledge  at  the  time  they 
did,  without  notice  to  redeem  or  of  the  sale  being  given  to  the  defend- 
ants ;  and  it  is  shown  that  the  value  of  the  pledge  at  the  time  equalled, 
if  it  did  not  exceed,  the  debt  which  it  was  made  to  secure. 

The  counsel  for  the  defendants,  in  effect,  offered  to  recoup  their  dam- 
ages arising  from  the  plaintiffs'  breach  of  the  contract  of  pledge,  but  was 
not  permitted  to  do  so.  It  is  urged  by  the  plaintiffs'  counsel,  that  the 
defence  was  not  admissible  under  the  pleadings ;  but  I  am  satisfied 
that  it  was  unnecessary  to  plead  specially,  or  to  give  notice  of  the  mat- 
ters relied  on.  The  evidence  establishes  that  the  plaintiffs  had  no  cause 
of  action,  and  the  defence  is  fairly  covered  by  the  plea  of  non-assumpsit. 
(Batterman  v.  Pierce,  3  Hill,  171 ;  Barber  v.  Rose,  5  id.  76 ;  Ives  v. 
Van  Epps,  22  Wend.  155.) 

The  defendants  clearly  had  an  election  of  remedies  against  the  plain- 
tiffs for  the  conversion  of  the  pledge.  They  could  maintain  trover  or 
assumpsit,  and  in  the  latter  action  could  recover  the  value  under  the 
common  counts.  (Hill  v.  Perrott,  3  Taunt.  274 ;  Butts  v.  Collins,  13 
Wend.  139  to  154.)  If  assumpsit  was  maintainable  by  them,  they 
may,  in  an  action  by  the  plaintiffs,  set  off  the  value  of  the  boots  and 
shoes  as  for  such  property  sold.  There  is  no  valid  objection  on  the 
ground  that  the  damages  are  unliquidated  or  uncertain.  The  case  of 
Butts  v.  Collins  is  decisive  on  that  point.     There  must  be  a  new  trial. 

New  trial  granted. 


ROBINSON  v.   HURLEY. 

11  Iowa,  410;   79  Am.  D.  497.     1861. 

The  plaintiff  brought  his  suit  to  recover  $554.69  as  the  amount  due 
on  a  promissory  note.  Defendant  pleaded  payment  and  set-off  founded 
upon  the  following  receipt ;  to  wit :  — 

"Received,  Dubuque,  August  6th,  1857,  of  John  Hurley,  two  orders  on 
the  treasurer  of  Dubuque  City,  both  orders  dated  August  4th,  1857.  One 
-is  numbered  4146,  calling  for  five  hundred  dollars;  the  other  is  No.  4148, 
calling  for  two  hundred  and  fifty  dollars.  The  above  orders  are  placed  in 
my  possession  as  security  for  a  certain  note,  dated  as  above,  calling  for 
five  hundred  and  forty-six  dollars  and  fifty  cents,  ninety  days  after  date. 
Should  the  said  note  not  be  promptly  met  at  maturity,  then  I  reserve  the 
right  and  privilege  of  disposing  of  said  city  orders  at  private  sale,  and  to 
appropriate  so  much  of  the  sale  of  said  bonds  as  shall  fully  satisfy  said 
note,  interest  and  costs,  and  pay  the  balance,  if  any,  to  said  John  Hurley 

(Signed)  "J.M.Robinson. 


>> 


122  PLEDGES. 

* 

At  the  maturity  of  the  note,  defendant  made  default  in  payment. 
The  plaintiff  did  not  at  that  time,  to  wit,  on  the  9th  of  November, 
1857,  when  the  note  matured,  sell  the  city  scrip  described  in  the  above 
receipt,  but  deferred  the  same  till  the  10th  of  May  following,  when  he 
sold  the  same  for  forty-five  cents  on  the  dollar. 

On  the  trial,  the  defendant  proved,  against  the  objection  of  the 
plaintiff,  that  at  or.  about  the  time  that  the  note  matured,  the  city  scrip 
in  question  was  worth  in  the  market  from  seventy-five  to  eighty  cents 
on  the  dollar.  The  plaintiff  then  offered  to  prove  by  two  witnesses 
that  in  May,  1858,  about  the  time  he  sold  said  scrip,  it  was  worth  only 
about  forty  cents  on  the  dollar.  This  evidence  was  declared  inadmis- 
sible by  the  court,  and  exceptions  taken  to  both  rulings.  The  jury 
found  a  verdict  of  seventy-seven  dollars  and  fifty  cents  for  the  defend- 
ant. A  motion  for  a  new  trial,  based  upon  the  alleged  errors  of  the 
court  in  admitting  and  rejecting  certain  testimony,  and  in  its  charge 
of  the  law  of  the  case  to  the  jury,  was  overruled ;  and  the  cause  is  ap- 
pealed to  this  court  by  the  plaintiff. 

Lowe,  C.  J.  Upon  the  foregoing  facts  the  court,  at  the  request  of 
the  defendant,  gave  the  following  instructions  as  the  law  of  this  case ; 
to  wit :  That  under  the  receipt  offered  in  evidence  by  defendant,  if  the 
plaintiff  sold  the  scrip  at  all,  he  was  required  by  the  terms  of  the  receipt 
to  sell  the  same  at  or  about  the  time  of  the  maturity  of  the  note ;  and 
that  if  they  (the  jury)  find  from  the  evidence  that  said  plaintiff  had  not 
sold  the  scrip,  he  was  liable  for  the  value  of  said  scrip  at  or  about  the 
time  of  the  maturity  of  the  note.  The  court  also  refused  to  charge  the 
jury  that  the  value  of  the  scrip  at  the  time  it  was  sold  by  the  plaintiff  was 
the  measure  of  his  liability  to  the  defendant  for  the  same. 

If  the  plaintiff  acted  tortiously  or  misappropriated  the  scrip  in  dis- 
posing of  it  at  the  time  he  did,  the  above  rule  of  damages  would  seem 
to  be  proper  and  just.  But  if  it  was  his  right  under  the  law  which 
governs  pledges,  even  as  modified  by  the  contract  of  the  parties  in  this 
case,  to  sell  these  collateral  securities  at  the  time  and  under  the  circum- 
stances which  he  did,  then  there  was  no  misappropriation,  and  a  differ- 
ent criterion  of  damages  obtains ;  to  wit,  the  value  of  the  scrip  at  the 
time  of  its  conversion. 

That  we  may  arrive  at  a  better  understanding  of  the  rights,  duties, 
and  obligations  of  the  parties  under  the  receipt  in  question,  let  us  inquire 
what  they  would  be  under  the  law  in  the  absence  of  such  a  contract. 
After  the  debt  falls  due,  the  pledgee,  under  the  law,  has  his  election 
to  pursue  one  of  three  courses  :  First,  to  proceed  personally  against  the 
pledgor  for  his  debt  without  selling  the  collateral  security ;  or,  second, 
to  file  a  bill  in  chancery  and  have  a  judicial  sale  under  a  regular  decree 
of  foreclosure ;  or  third,  to  sell  without  judicial  process,  upon  giving 
reasonable  notice  to  the  debtor  to  redeem.  2  Kent  (9  ed.),  785;  1 
P.  Wms.  261 ;  2  Atk.  303.  The  plaintiff  in  executing  said  receipt  did 
not  waive  his  right  of  adopting  either  of  the  above  methods  to  satisfy 


LIEN.  123 

his  claim.  The  only  change  made  in  the  rights  and  obligations  of  the 
parties  by  this  instrument  was  simply  to  dispense  with  notice  to  the 
debtor  to  redeem  before  the  creditor  could  sell.  There  is  nothing  in  the 
language  or  terms  of  this  receipt  which  obliged  the  plaintiff  to  sell  tin 
collaterals  at  the  maturity  of  the  note.  He  simply  reserved  the  right 
to  do  so,  a  right  which  the  law  gave  him,  without  such  reservation, 
upon  giving  notice  to  redeem.  A  postponement  of  the  exercise  of  this 
right  is  a  thing  of  which  the  debtor  cannot  very  well  complain;  it 
only  enlarges  his  opportunity  to  redeem  and  thereby  prevent  any  sac- 
rifice that  might  result  from  a  forced  sale  of  the  pledge.  The  deprecia- 
tion in  this  case  which  the  scrip  in  question  suffered  between  the 
maturity  of  the  note  and  the  sale  of  the  same,  was  without  the  fault  or 
power  of  prevention  on  the  part  of  the  plaintiff.  He  was  only  bound 
to  that  attention  and  diligence  in  the  preservation  of  the  thing  pledged 
which  a  careful  man  bestows  upon  his  own  property,  for  the  reason  that 
the  arrangement  or  contract  was  reciprocally  beneficial  to  both  parties. 
We  conclude  therefore  that  the  plaintiff  in  selling  the  collateral  securi- 
ties at  the  time  and  under  the  circumstances  which  he  did,  violated  no 
obligation  or  duty  growing  out  of  the  understanding  of  the  parties,  or 
expressed  by  the  receipt,  or  law  itself.  And  if  we  are  right  in  this  con- 
clusion, it  follows  that  the  measure  of  his  liability  for  said  scrip  is  the 
value  thereof  at  the  time  of  the  conversion.  This  rule  of  damages,  in 
cases  of  this  kind,  is  well  established.  See  Sedgw.  on  Dam.,  365-366 
and  480-481,  and  authorities  there  cited. 

Judgment  reversed  and  new  trial  granted. 


WHITE  v.   PHELPS. 
14  Minn.  27  ;    100  Am.  D.  190.     1869. 

Appeal  by  plaintiff  from  an  order  of  the  court  of  common  pleas, 
Ramsey  county,  sustaining  a  demurrer  to  the  complaint. 

The  complaint  set  forth  a  note  made  by  defendant,  payable  to  the 
order  of  one  Benjamin  Phelps,  and  alleged  that  the  payee  transferred 
and  delivered  it  to  plaintiff  as  security  for  a  debt  due  from  him  to  the 
plaintiff. 

McMillan,  J.  The  principal  question  presented  by  the  demurrer 
to  the  complaint  in  this  action  is  whether  the  transfer  and  delivery  of 
a  promissory  note,  after  maturity,  and  without  indorsement,  as  collat- 
eral security  for  the  payment  of  a  debt,  enables  the  pledgee,  upon 
default  of  the  pledgor,  to  maintain  an  action  on  the  note  in  his  own  name 
against  the  maker.  The  transaction  is  in  the  nature  of  a  pledge,  and 
the  rights  and  liabilities  of  the  parties  must  be  determined  by  the  law- 
applicable  to  pledges  of  personal  property  of  this  character.     It  is  a 


124  PLEDGES. 

well-settled  rule  of  law  relating  to  this  class  of  bailments  that  the  gen- 
eral property  in  the  pawn  remains  in  the  pledgor,  and  a  special  prop- 
erty therein  passes  to  the  pledgee. 

There  is  no  rule  of  law  which  limits  or  defines  absolutely  the  special 
property  of  a  pledgee,  but  the  rights  and  liabilities  of  the  latter  are  to 
be  determined  from  the  terms,  express  or  implied,  of  the  contract  be- 
tween the  parties,  and  we  apprehend  that  whatever  special  interest  or 
estate  in  the  pawn  is  necessary  to  enable  the  pledgee  to  exercise  the 
rights  guaranteed  to  him,  or  discharge  the  obligations  imposed  on  him 
by  the  contract,  will  vest  in  him. 

Let  us  consider,  then,  so  far  as  it  is  necessary,  what  are  the  rights  and 
liabilities  of  the  parties  in  this  case. 

Where  goods  are  deposited  to  secure  a  loan,  "it  may  be  inferred," 
says  Gibbs,  C.  J.,  "  that  the  contract  was  this  :  if  I  (the  borrower)  repay 
the  money,  you  must  redeliver  the  goods  ;  but  if  I  fail  to  repay  it,  you 
may  use  the  security  to  repay  yourself."  Pothonier  v.  Dawson,  1 
Holt,  Nisi  Prius,  383;  3  E.  C.  L.  154. 

The  primary  and  indeed  the  only  purpose  of  the  pledge  is  to  put  it 
into  the  power  of  the  pledgee  to  reimburse  himself  for  the  money 
advanced  when  it  becomes  due  and  remains  unpaid. 

The  contract  carries  with  it  an  application  that  the  security  shall 
be  made  effectual  to  discharge  the  obligation.  Wheeler  v.  Newbould, 
16  N.  Y.  396.  When  the  pledge  is  given  as  collateral  security  for  the 
payment  of  a  debt,  it  can  be  made  effectual  to  pay  the  debt  only  by 
being  converted  into  money ;  and  in  the  absence  of  any  special  agree- 
ment to  the  contrary,  and  where  there  is  nothing  in  the  nature  of  the 
pawn  inconsistent  with  such  intention  in  the  parties,  the  pawnee  may 
proceed  to  sell  the  property  without  judicial  process  upon  giving  rea- 
sonable notice  to  the  debtor  to  redeem. 

The  means  generally  resorted  to  for  the  accomplishment  of  the  pur- 
pose of  the  pledge  is  a  sale  of  the  property  pledged,  and  writers  upon  the 
subject  generally  state  this  as  the  power  conferred  upon  the  creditor  to 
satisfy  his  debt.     Story,  Eq.  Jur.,  §  1008;  2  Kent,  Comm.,  582. 

But  there  is  nothing  in  the  nature  of  this  bailment  which  absolutely 
requires  a  sale  in  all  cases ;  and  if  the  subject  of  the  pledge  is  such 
that  from  its  nature  it  is  to  be  inferred  with  reasonable  certainty  that 
the  parties  intended  to  restrict  the  pawnee  in  the  exercise  of  his  powers 
to  a  proceeding  in  chancery,  he  will  not  be  permitted  to  sell  without  a 
decree.  Clark  v.  Gilbert,  2  Bing.  N.  C.  356,  explained ;  Smith,  Lead. 
Cas.  298, 299.  Or  if,  from  its  nature,  the  pawn  cannot  be  converted  into 
cash  without  injury  to  both  or  one  of  the  parties,  and  may  be  converted 
into  money  by  some  other  method  more  beneficial  to  the  parties,  we 
think  the  pledgee  is  permitted,  and  in  equity,  if  not  at  law,  required, 
to  pursue  the  latter  course,  for  the  bailment  is  for  the  mutual  benefit  of 
both  parties,  and  is  in  the  nature  of  a  trust.  "  The  creditor,"  says  Kent, 
is  required  "at  his  peril  to  deal  fairly  and  justly  with  the  pledge." 


LIEN.  12o 

"The  law,  especially  in  the  equity  courts,  is   vigilant  and  jealous  in 
its  circumspection  of  the  conduct  of  trustees."     2  Kent,  Comm.  583. 

In  the  case  under  consideration  there  is  nothing  in  the  contract  ex- 
pressly restricting  the  power  of  the  pledgee  in  the  disposition  of  the 
pledge.  Is  there  anything  in  the  nature  of  the  pledge  from  which  it  is 
reasonably  to  be  inferred  that  the  parties  intend  to  prohibit  a  sale  of 
the  pledge,  either  with  or  without  judicial  process ;  or  to  afford  any 
remedy  concurrently  with  a  sale  ;  or  to  restrict  the  pledgee  in  any  event 
in  pursuing  his  remedy  to  a  proceeding  in  chancery  ? 

The  pawn  in  this  case  is  an  unindorsed  negotiable  note.  There  are 
no  facts  or  circumstances  going  to  shew  that  the  amount  of  the  note, 
so  far  as  the  maker  is  concerned,  cannot  be  fully  realised  in  a  suit 
at  law.  Under  these  circumstances,  we  think,  the  pawnee  is  not  per- 
mitted to  dispose  of  the  note  by  sale. 

The  reasoning  of  Brown,  J.,  on  the  same  question,  in  Wheeler  v. 
Newbould,  fully  sustains  this  conclusion.  Is  there  anything  in  the 
nature  of  the  pawn  in  this  case  which  would  reasonably  indicate  an 
intention  to  restrict  the  pledgee  to  a  proceeding  in  chancery,  in  realis- 
ing his  debt  from  the  property  pledged  ?  If  there  is  not,  the  party  has 
an  election  to  pursue  his  remedy  either  at  law  or  in  equity.  The  rights 
and  remedies  of  parties  to  promissory  notes  are  generally  within  the 
exclusive  jurisdiction  of  the  courts  of  law.  If  in  this  case  the  pledgee 
has  not  a  remedy  by  action  at  law,  and  we  are  right  in  the  view  we 
have  taken  of  the  power  of  sale,  it  is  only  because  the  note  is  not  indorsed 
by  the  payee.  Does  this  deprive  him  of  his  right  of  action  at  law  ?  It 
is  doubtless  true,  that  by  the  law  merchant,  if  a  promissory  note  is 
originally  payable  to  a  person,  or  his  order,  it  is  properly  transferable 
by  indorsement,  and  that  the  indorsement  of  the  payee  is  necessary  to 
pass  the  legal  title  to  a  third  pe'rson,  so  that  at  law,  in  the  absence  of 
statutory  provision  to  the  contrary,  he  can  maintain  an  action  on  the 
note  in  his  own  name.  But  by  a  transfer  without  an  indorsement  the 
holder  will  acquire  the  same  rights  that  he  would  acquire  upon  a  trans- 
fer of  a  note  not  negotiable;  that  is,  he  may  at  law  sue  the  other 
parties  thereto  in  the  name  of  the  payee  or  assignor.  Story,  Prom. 
Notes,  §  120,  note  3;  Story,  Bills,  §  201,  note  3;  Jones  v.  Witter,  L3 
Mass.  304-306.  Does  the  pledge  of  a  note  unindorsed  operate  as  an 
assignment  of  it?  It  is  to  be  observed  that  the  contract  of  pledge 
exists  in  law  as  well  as  equity,  and  that  by  operation  of  law  the  pledgee 
takes  not  a  lien  only,  which  is  merely  a  right  to  retain  until  the  debt 
in  respect  of  which  the  lien  was  created,  has  been  satisfied,  but  a  prop- 
erty—  an  ownership  in  the  property  pledged.  Story,  Bailm.,  §93, 
g,  h,  c.  It  is  a  special  ownership  —  that  is,  it  is  special  from  the  fad 
that  it  is  limited  in  its  character;  it  is  an  ownership  limited  to  the 
purposes  of  the  pledge,  but  as  to  these  purposes  the  property  in  the 
pawn  is  vested  in  the  pledgee,  and  the  rights  of  the  pledgee  to  the  same 
extent  are  paramount  to  those  of  the  pledgor. 


126  PLEDGES. 

The  purpose  of  the  pledge  is,  as  we  have  seen,  that  the  pledgee  may 
reimburse  himself  for  his  debt  when  it  becomes  due  and  remains  un- 
paid. This  can  only  be  done  by  converting  the  pledge  into  money. 
This,  then,  he  has  a  right  to  do  in  a  bona  fide  manner,  and  the  contract 
assigns  him  such  a  property  in  the  pledge  as  will  enable  him  to  do  it. 
Whether  it  is  a  note  or  goods  and  chattels  makes  no  difference  —  the 
property  passes ;  but  in  the  case  of  a  negotiable  note,  the  pledgee,  in 
any  action  in  a  court  of  law  which  requires  a  legal  title  to  the  property 
in  the  plaintiff,  must  proceed  in  the  name  of  the  payee  of  the  note,  un- 
less there  is  statutory  provision  to  the  contrary. 

Assuming  that  we  are  right  thus  far,  we  think  our  statute  has  so 
changed  the  law  as  to  permit  the  pledgee,  after  default  of  the  pledgor, 
to  maintain  an  action  in  his  own  name.  The  statute  reads  as  follows : 
"  Every  action  shall  be  prosecuted  in  the  name  of  the  real  party  in  in- 
terest, except  as  hereinafter  provided  ;  but  this  section  does  not  author- 
ise the  assignment  of  a  thing  in  action  not  arising  out  of  a  contract." 
Gen.  St.  c.  66,  tit.  3,  §  26,  p.  453.  In  considering  this  section  with 
reference  to  the  right  of  action  upon  a  note  unindorsed,  Flandrau,  J., 
says :  "  The  only  question  under  our  practice  is,  in  whom  is  the  real, 
substantial  ownership  and  property  of  the  note  ?  In  whomsoever  that 
is  found,  there  the  cause  of  action  is  also."  Pease  v.  Rush,  2  Minn. 
Ill  (Gil.  89). 

As  the  plaintiff  by  the  pledge  acquired  a  substantial  ownership  and 
property  in  the  note,  an  action  brought  for  the  purpose  of  enforcing  a 
right  incident  to  that  property  or  ownership  must,  under  our  statute, 
be  brought  in  his  own  name.  It  is  true,  the  pledgor  also  retains  a  prop- 
erty in  the  pledge,  but  it  is  entirely  distinct  and  separate  from  that  of 
the  pledgee,  and  their  interests  are,  perhaps,  adverse.  It  is  neither 
necessary  nor  proper,  therefore,  that  they  be  joined  as  plaintiffs  in  this 
action. 

The  debt,  to  secure  which  the  pledge  was  given,  was  payable  at  a 
specific  time.  When  the  debt,  to  secure  which  the  pledge  was  given, 
is  payable  at  a  time  certain,  and  the  pawn  is  a  promissory  note,  no 
demand  by  the  pledgee  is  necessary  before  bringing  a  suit  upon  the 
note  pledged.     Story,  Bailm.,  §  308 ;    2  Parsons,  Cont.  120. 

Whether  the  pledgor  should  not  be  made  a  party  defendant  in  this 
action  is  a  question  not  presented  by  the  demurrer,  and  one  upon 
which  we  express  no  opinion. 

Order  sustaining  demurrer  overruled. 


LIEN.  127 


BOYNTON  v.   PAYROW. 

67  Maine,  587.     1877. 

Bill  in  equity,  to  procure  the  direction  of  the  court  in  the  disposition 
of  a  pledge  of  a  savings  bank  book,  praying  that  the  savings  institu- 
tion be  directed  to  pay  to  the  petitioner  or  his  order  all  the  moneys  so 
deposited,  and  for  further  relief  and  costs. 

Barrows,  J.  Where  there  is  a  general  pledge  of  personal  property, 
neither  the  time  of  redemption  nor  the  manner  and  time  of  sale  being 
specified  in  the  contract,  it  has  long  been  held  that  the  appropriate 
remedy  of  the  pledgee,  when  his  rights  or  powers  are  in  any  manner 
questioned  or  denied,  is  by  process  in  equity,  in  which  the  court  can 
make  the  trust  available  with  due  regard  for  the  rights  of  all  concerned. 
2  Kent's  Com.,  4th  ed.,  581,  582,  583;  4  id.  138,  140;  2  Story's  Eq. 
Jur.,  9th  ed.,  §§  1030,  1033. 

Chancellor  Kent  says  that  "  where  no  time  was  limited  for  the  redemp- 
tion, the  pawner  had  his  own  lifetime  to  redeem,  unless  the  creditor  in 
the  meantime  called  upon  him  to  redeem,  and  if  he  died  without  such 
call  the  right  to  redeem  descended  to  his  personal  representatives"; 
that  the  pledgee  has  the  election  of  two  remedies  upon  the  pledge  itself, 
one  of  which  is  to  file  a  bill  in  chancery  and  have  a  judicial  sale ;  and 
that  "  the  law  especially  in  the  equity  courts  is  vigilant  and  jealous  in 
its  circumspection  of  the  conduct  of  trustees." 

The  pledgee,  holding  the  property  in  trust  for  the  benefit  of  himself 
and  whomever  else  it  may  concern,  may  rightfully  resort  to  the  court 
sitting  in  equity  to  make  the  proper  orders  respecting  its  disposition 
and  thereby  relieve  himself  from  ulterior  questions  as  to  the  propriety  of 
his  course,  to  which  he  might  subject  himself  if  he  proceeded  to  sell 
without  judicial  process,  upon  reasonable  notice  to  the  debtor  to  redeem. 

In  the  present  case  the  plaintiff  claims  that  the  savings  bank  book 
which  is  the  subject  of  controversy  was  pledged  to  him  by  his  sister, 
Clara  Boynton,  to  secure  certain  promissory  notes  which  she  gave  him 
for  money  lent  and  which  he  still  holds ;  that  a  few  months  before  her 
death,  upon  her  return  from  Massachusetts  to  her  old  home  in  Lincoln 
county,  in  ill  health,  he  redelivered  it  to  her  to  enable  her  to  draw  such 
sums  from  the  deposit  as  she  might  need  ;  that  during  her  last  sickness 
she  recognised  his  claim  upon  it  to  secure  the  payment  of  her  notes, 
and  gave  it  to  her  mother  to  be  delivered  to  him  with  directions  to  take 
what  was  due  him,  and  use  some  of  the  money  in  fitting  up  a  family 
burial  lot  with  suitable  monuments,  and  distribute  the  remainder  to 
her  heirs.  The  case  shows  that  it  was  accordingly  delivered  to  him  by 
their  mother  shortly  after  Clara's  decease,  and  is  now  in  the  custody  of 
his  counsel  in  Lincoln  county.  All  the  heirs  of  Clara  subsequently 
united  in  a  request  to  the  savings  institution  to  pay  the  money  to  the 
plaintiff  in  trust  for  them,  but  he  did  not  draw  it,  and  it  still  remains 


128  PLEDGES. 

in  the  savings  institution.  And  the  plaintiff  claims  a  further  lien  to 
secure  certain  advances  of  money  which  he  made  to  several  of  the 
heirs  (notably  to  the  respondent  Payrow)  on  the  strength  of  his  posses- 
sion of  their  order  on  the  savings  bank  for  the  money. 

The  respondent,  Payrow,  a  niece  of  Clara,  in  January,  1875,  took 
out  administration  upon  Clara's  estate,  in  Lincoln  county.  This 
process  was  commenced  returnable  at  the  next  term  of  this  court  in 
that  county  against  her  as  administratrix,  and  the  savings  institution 
is  made  a  party  defendant. 

[Discussion  of  a  question  of  jurisdiction  is  omitted.] 

It  is  clear,  however,  that  the  plaintiff  can  sustain  no  claim  upon  the 
funds  deposited  in  the  savings  bank  by  Clara  Boynton,  as  against  her 
administratrix,  to  secure  his  advances  made  to  her  heirs  on  the  strength 
of  their  order  in  his  favour  upon  the  savings  bank.  If  he  would  have 
made  that  order  available  for  such  a  purpose,  he  should  have  acted 
promptly  under  the  order,  and  settled  his  transactions  with  the  heirs  with- 
out compelling  them  by  his  delay  to  resort  to  an  administration.  As 
against  an  administratrix  duly  appointed,  he  cannot  sustain  any  claim 
to  the  bank  book,  or  the  money  it  represents  by  virtue  of  any  order  or 
assignment  from  the  heirs. 

Nor  is  the  testimony  sufficient  to  establish  the  creation  of  any  trust 
for  the  purpose  of  fitting  up  a  family  burial  place  and  distribution  of 
residue  among  the  heirs  by  the  plaintiff,  without  the  intervention  of 
probate  proceedings.  x\s  construed  by  the  plaintiff  himself,  the 
amount  to  be  expended  for  the  family  cemetery  and  the  manner  of  its 
expenditure  were  left  to  depend  upon  the  concurrence  of  the  heirs, 
and  there  is  absolutely  nothing  to  show  a  legal  appropriation  of  the 
money  to  this  object  by  Clara  Boynton. 

But  we  think  there  is  a  preponderance  of  evidence  to  show  a  renewal 
of  the  pledge  of  the  bank  book  to  the  complainant  to  secure  the  amount 
due  to  him  from  his  sister  for  money  lent.  We  must  set  aside  the  testi- 
mony of  the  complainant  so  far  as  it  relates  to  matters  occurring  prior 
to  the  decease  of  his  sister  as  incompetent  in  this  suit  against  her  ad- 
ministratrix. Trowbridge  v.  Holden,  58  Maine,  117;  Burleigh  v. 
White,  64  Maine,  23.  But  in  the  testimony  of  his  mother  and  his  sister, 
Harriet  Boynton,  we  find  enough  to  satisfy  us  that,  during  Clara's  last 
illness,  she  gave  the  bank  book  to  her  mother  to  be  delivered  to  the 
complainant  for  his  security.  While  there  are  some  inconsistencies 
in  the  statements  of  the  mother  in  her  second  deposition  taken  at  the 
instance  of  the  defendant,  they  are  nothing  more  than  might  be  ex- 
pected from  a  person  of  her  great  age  when  plied  with  leading  questions 
after  a  considerable  lapse  of  time  since  the  transactions  to  which  her 
testimony  relates.  We  think  the  account  first  given  by  the  mother, 
and  confirmed  by  Harriet,  and  by  existing  documents  and  the  acts 
of  the  parties  concerned,  is  the  more  reliable.  The  delivery  of  the  bank 
book  by  Clara  to  her  mother  for  the  purpose  avowed  by  her,  makes  it 


LIEN.  129 

a  good  pledge  to  the  plaintiff ;  and  as  pledgee  he  has  the  right  to  get 
the  direction  of  the  court  in  regard  to  its  disposition,  so  as  to  protect 
the  interests  of  all  who  have  an  interest  therein.  The  bill  is  sustained 
with  costs  for  the  complainant. 

Unless  the  parties  agree  as  to  the  amount  due  from  Clara's  estate  to 
the  plaintiff,  a  master  will  be  appointed  to  ascertain  and  report  to  the 
court. 

The  peculiar  nature  of  the  pledge  makes  a  sale  unnecessary.  If, 
within  three  months  after  the  amount  due,  the  complainant  is  ascer- 
tained, either  by  agreement  of  parties  or  the  acceptance  of  a  master's 
report,  the  respondent  shall  tender  the  sum  fixed  with  interest  (if  any 
accrues)  and  costs  of  this  process,  the  complainant  shall  thereupon  sur- 
render the  bank  book  to  the  administratrix  of  Clara  thenceforth  dis- 
charged of  the  pledge  and  all  claim  on  the  part  of  the  plaintiff  thereon, 
except  as  heir  of  Clara.  If  not  so  tendered,  an  officer  of  the  court 
will  be  appointed  to  receive  the  money  from  the  savings  bank  and  dis- 
pose of  it  as  above. 

Costs  of  the  savings  institution,  if  any,  in  this  process,  to  be  paid 
out  of  the  estate. 

Bill  sustained.     Case  remanded  for  further  proceedings  in  conformity 

herewith. 


MASONIC    SAVINGS    BANK    v.    BANGS'    ADMINISTRATOR. 
84  Ky.  135 ;   4  Am.  St.  R.  197.     1886. 

Judge  Pryor  delivered  the  opinion  of  the  court. 

John  B.  Bangs,  in  the  month  of  June,  1884,  borrowed  of  the  Masonic 
Savings  Bank  the  sum  of  ten  thousand  dollars,  for  which  he  executed 
his  note,  payable  in  six  months  with  interest  from  date,  and  to  secure 
its  payment  he  pledged  as  collateral  security  three  hundred  shares  of 
the  stock  of  the  New  Gait  House  Company.  The  nature  of  the  pledge 
was  indorsed  on  the  back  of  the  note,  and  is  as  follows :  "  As  security 
for  the  payment  of  the  within  note,  I  have  deposited  with  the  Masonic 
Savings  Bank  three  hundred  shares  of  the  capital  stock  of  the  New  Gait 
House  Company,  and  authorise  the  said  bank  to  sell  the  above  de- 
scribed collaterals,  and  pass  a  good  title  thereto  to  the  purchaser,  if  the 
within  note  is  not  paid  at  maturity,  reserving  the  right  to  be  notified 
in  writing  twenty  days  previous  to  the  date  and  place  of  the  contem- 
plated sale." 

Bangs,  the  obligor  in  the  note,  died  intestate  in  August,  1884,  and  the 
appellee,  W.  C.  Kendrick,  administered  on  his  estate,  and  in  order  to 
a  settlement  with  creditors  filed  a  petition  in  the  Louisville  Chancery 
Court,  to  which  the  appellant  (Masonic  Savings  Bank)  was  made-  a 


130  PLEDGES. 

defendant.     The  estate  of  Bangs  was  not  only  involved,  but  utterly 
insolvent. 

The  Masonic  Savings  Bank,  being  a  large  creditor  of  the  estate,  filed 
an  answer  and  counter-claim,  setting  forth  its  various  demands,  and 
among  them  the  note  for  ten  thousand  dollars.  A  judgment  was  asked 
by  the  bank  for  the  sale  of  the  stock  pledged  to  secure  the  payment  of 
that  note.  The  administrator  and  the  bank  consented  by  an  agreed 
order  that  the  bank  should  sell  the  stock,  subject  to  the  rights  of  the 
parties  in  interest. 

The  stock  was  sold  by  the  bank  and  realised,  after  the  payment  of 
all  costs,  the  sum  of  thirteen  thousand  four  hundred  and  ninety-five 
dollars  and  ten  cents.  This  sum  satisfied  the  note,  and  left  a  surplus- 
of  three  thousand  five  hundred  and  thirty-six  dollars  and  forty-five 
cents,  and  the  manner  in  which  this  surplus  is  to  be  distributed  is  the 
question  presented  on  the  appeal. 

The  bank,  holding  many  other  large  claims  against  the  estate,  asserts 
its  right  to  apply  this  surplus  to  their  payment,  insisting  that  by  the 
law  merchant  it  has  a  lien  over  other  creditors,  and  if  not,  having  pos- 
session of  the  fund,  its  right  to  a  set-off  against  the  claim  of  the  adminis- 
trator cannot  be  denied. 

We  find  no  decision  by  this  court  determining  the  question  involved ; 
but  the  right  of  a  bank  to  a  general  lien  on  the  money  and  funds  of  the 
depositor  in  its  vaults  for  the  payment  of  the  balance  of  the  general 
account  of  the  despositor,  is  recognised  by  all  the  elementary  books  on 
the  subject  of  banks  and  banking,  and  sustained  by  an  unbroken  line 
of  American  decisions.  So  when  the  depositor  is  indebted  to  the  bank, 
his  funds  in  the  bank  may  be  applied  to  the  payment  of  the  debt  at  its 
maturity,  and  a  failure  of  the  bank  to  make  such  an  application  has 
been  held  to  discharge  the  indorser  or  sureties. 

The  right  to  a  set-off  would  also  exist  against  the  administrator  or 
representative  of  the  depositor  attempting  to  recover  the  deposit  after 
his  death.     (Morse  on  Banking,  pp.  34,  35,  36.) 

This  doctrine  as  to  the  general  lien  of  a  bank,  or  its  right  to  a  set- 
off, does  not  control  the  question  involved  in  this  case. 

It  is  equally  as  well  settled  that  when  the  deposit  is  made  for  a  spe. 
cial  purpose,  with  the  knowledge  and  undertaking  of  the  bank,  that 
purpose  must  be  carried  out ;  or  when  the  pledge  is  specific  to  secure  a 
particular  debt,  the  lien  only  applies  to  the  debt  intended  to  be  secured 
by  it.  "  A  security  given  for  a  contemporaneous  advance  of  one  thou- 
sand pounds  by  the  banker,  was  held  not  to  be  applicable  against  an 
indebtedness  of  five  hundred  pounds,  afterwards  arising  on  the  ordi- 
nary running  account."     (Morse  on  Banking,  p.  36.) 

In  this  case  the  intestate  deposited  with  the  bank  three  hundred 
shares  of  the  New  Gait  House  stock,  to  secure  the  payment  of  the  note 
for  ten  thousand  dollars.  The  title  to  the  stock  was  in  the  intestate, 
subject  to  this  pledge,  and  the  bank  had  no  right  to  sell  more  of  the 


LIEN.  131 

stock  than  would  satisfy  the  debt  it  was  given  to  secure.  If  two  hun- 
dred shares  had  satisfied  the  debt,  the  intestate,  if  living,  could  have 
maintained  an  action  against  the  bank  for  the  remaining  one  hundred 
shares.  The  debt  having  been  paid,  the  pledgor  or  owner  would  have 
been  entitled  to  the  immediate  possession  of  the  stock  remaining  unsold. 

The  administrator  of  Bangs  consented  that  the  whole  of  this  stock 
might  be  sold  by  the  bank,  and  when  sold,  the  special  pledge  having 
been  satisfied,  the  surplus  fund  arising  from  the  sale  passed  to  the  ad- 
ministrator. It  was  the  property  of  the  estate,  and  its  conversion  into 
money  did  not  alter  the  rights  of  the  parties.  If  the  appellee,  as  the 
administrator,  had  paid  off  the  ten  thousand  dollar  note,  the  whole 
of  the  stock  would  have  belonged  to  the  estate,  and  no  lien  could  have 
been  asserted  against  the  administrator  so  as  to  have  prevented  a  dis- 
tribution among  the  general  creditors. 

The  special  agreement  with  reference  to  the  particular  debt  repels  the 
inference  that  it  was  pledged  for  any  and  all  debts  that  might  thereafter 
be  owing  the  bank  by  the  intestate.  In  Parsons  on  Contracts,  vol.  3, 
pp.  264,  265,  the  lien  of  the  banker  is  thus  stated:  "When  a  nego- 
tiable note  is  indorsed  to  a  banker  by  the  payee  as  collateral  security 
for  one  only  of  several  demands,  for  which  he  is  liable,  the  banker  has 
no  lien  on  such  note  as  security  on  any  other  demand  against  the 
indorser." 

Kent  in  his  Commentaries,  vol.  2,  p.  775,  states  the  rule:  "The 
pawnee  will  not  be  allowed  to  retain  the  pledge  for  any  other 
debt  than  that  for  which  it  was  made,  even  though  the  holder  be  a 
banker." 

In  Duncan  v.  Brennan,  83  New  York,  487,  it  was  held  that  personal 
property  pledged  for  a  particular  loan  cannot,  in  the  absence  of  a  special 
agreement,  be  held  by  the  pledgee  for  any  other  advance ;  and  in  that 
case  it  was  also  said  that  "the  general  lien  which  bankers  have  upon 
bills,  notes,  and  other  securities  deposited  with  them  for  a  balance  due 
on  general  account,  cannot  exist  where  the  pledge  of  property  is  for  a 
specific  sum  and  not  a  general  pledge." 

In  the  case  of  the  Neponset  Bank  v.  Leland,  5  Met.  Mass.  259,  it 
was  adjudged,  that  "  where  a  negotiable  note  is  indorsed  to  a  bank  by 
the  payee  as  collateral  security  for  only  one  of  several  demands  on  which 
he  is  liable,  the  bank  has  no  lien  on  such  note  as  security  for  any  other 
demand  against  the  indorser." 

In  the  case  of  Wyckoff  v.  Anthony  and  others,  reported  in  90  New 
York,  442,  the  bonds  in  controversy  were  pledged  by  the  plaintiff  as 
collateral  security  for  a  note  of  eight  thousand  dollars.  The  plaintiff 
tendered  the  firm  the  amount  of  the  debt  and  interest,  and  demanded 
the  securities.  The  defendants  refused  to  deliver  them  unless  the 
plaintiff  would  pay  another  claim  of  the  defendants  against  the  plain- 
tiff, for  which  the  bonds  had  not  been  specifically  pledged. 

The  plaintiff  then  brought  his  action  for  the  value  of  the  bonds,  alleg- 


132  PLEDGES. 

ing  their  conversion  by  the  defendants.  It  was  held,  that  "  where  se- 
curities are  pledged  to  a  banker  or  broker  for  the  payment  of  a  partic- 
ular loan  or  debt,  he  has  no  lien  on  the  securities  for  a  general  balance, 
or  for  the  payment  of  other  claims,"  and  a  recovery  was  permitted. 

We  have  found  no  case  decided  by  the  courts  of  this  country  sustain- 
ing the  position  assumed  by  counsel  for  the  appellant,  and  the  English 
cases  relied  on,  particularly  the  case  of  Davis  v.  Bowsher,  5  Term 
Rep.  481,  decided  by  Lord  Kenyon,  states  the  rule  to  be,  that  by  the 
general  law  of  the  land  a  banker  has  a  general  lien  upon  all  the  securities 
in  his  hands  belonging  to  any  particular  person  for  his  general  balance, 
unless  there  be  evidence  to  show  that  he  received  any  particular  security 
under  special  circumstances,  which  would  take  it  out  of  the  common 
rule. 

This  general  lien  arises  from  the  usage  of  trade ;  and  the  fact  that 
the  parties  have  made  the  pledge  for  the  particular  debt  must  be  held 
to  exclude  the  intention  of  creating  or  relying  on  a  lien  that  would 
otherwise  exist  upon  the  general  deposit  account.  It  is  a  special 
deposit  or  pledge  for  a  special  purpose,  and  when  that  purpose  is  accom- 
plished the  lien  ceases  to  exist.  A  general  lien  in  such  a  case  would  be 
inconsistent  with  the  special  undertaking.     (Grant  on  Banking,  p.  168.) 

Counsel  on  each  side  in  this  case  have  bestowed  much  labour  in  pre- 
senting and  reviewing  the  authorities  on  this  question,  and  while  some 
of  the  English  cases  would  tend  to  sustain  the  claim  of  lien,  the  whole 
current  of  American  authority  is  against  such  a  doctrine. 

Nor  is  the  appellant  entitled  to  a  set-off,  either  at  law  or  equity, 
against  this  claim  of  the  administrator.  Mutual  debts  existing  between 
the  intestate  and  the  bank  might  be  set  off  by  the  bank  either  at  law 
or  equity,  but  in  this  case  there  was  no  debt  due  the  intestate.  The 
latter  was  liable  to  the  bank  for  a  large  sum  of  money,  and  had  pledged 
his  stock  in  a  corporation  to  pay  a  part  of  the  debt  only.  The  stock 
was  not  converted  by  the  bank  into  money  during  the  life  of  the  intes- 
tate, and  no  lien,  legal  or  equitable,  existed  on  the  part  of  the  bank  out- 
side of  the  pledge.  The  stock  was  the  property  of  the  intestate  in  the 
possession  of  the  bank,  and  at  his  death  the  title  vested  in  his  personal 
representative.  If  Bangs  had  mortgaged  his  personal  property  to 
secure  this  debt,  a  satisfaction  of  the  mortgage  debt  by  a  sale  of  a  part 
of  the  personalty  would  have  left  the  intestate  entitled  to  the  remainder 
free  of  any  incumbrance  by  reason  of  the  mortgage,  and  the  pledge 
by  a  delivery  of  the  possession  of  the  stock  to  the  bank  only  invested  it 
with  an  equity  to  the  extent  of  the  pledge  made.  Equitable  rights 
might  have  arisen  as  between  the  intestate,  if  living,  and  the  bank, 
entitling  the  latter  to  some  of  the  provisional  remedies  authorised  by 
the  Code ;  but  here  the  personal  assets,  after  satisfying  the  lien,  vested 
in  the  administrator,  and  the  specific  lien  having  been  removed,  the 
surplus  is  for  distribution  between  creditors  as  provided  in  sections  33 
and  34  of  art.  2,  chapter  39,  General  Statutes. 


LIEN.  133 

When  the  personal  estate  is  covered  by  liens,  giving  a  creditor  priority, 
the  residue,  after  satisfying  the  lien,  must  be  paid  to  other  creditors 
until  they  have  received  a  sum  equal,  pro  rata,  with  the  lien  creditor. 
This  statutory  provision  applies  to  all  liens  created  on  the  personal 
estate,  whether  by  operation  of  law  or  by  express  contract  betwe<  a 
the  parties.     (Spratt  v.  First  National  Bank  of  Richmond,  84  Ky.  85.) 

This  estate,  being  insolvent  in  any  event,  the  bank  must  stand 
back  until  the  other  creditors  are  made  equal  to  the  lien  asserted  and 
allowed  it  by  reason  of  the  pledge. 

The  judgment  below  conforming  to  these  views  must  be  affirmed. 


MOSES  v.   GRAINGER. 
106  Tenn.  7  ;   58  S.  W.  R.  1067  ;   53  L.  R.  A.  857.     1900. 

Action  by  Charles  H.  Moses,  as  executor  of  the  estate  of  Mary  P. 
Moses,  deceased,  against  Fannie  M.  Grainger  and  others,  in  which  S.  C. 
Jarnigan  asked  a  decree  for  the  amount  of  a  certain  note ;  and  from 
a  decree  of  the  court  of  chancery  appeals  reversing  a  decree  of  the  chan- 
cellor, he  appeals. 

Beard,  J.  On  the  11th  day  of  May,  1898,  Frank  A.  Moses  executed 
to  the  Central  Savings  Bank  of  Knoxville  his  promissory  note  for 
$301.10,  payable  90  days  after  date  "to  the  order  of  the  payee,"  and 
pledged  as  collateral  to  secure  it  the  note  which  is  the  subject  of  con- 
troversy in  this  case.  The  pledge  of  the  collateral,  as  stipulated  in  the 
original  paper,  is  in  these  words  :  "  Having  deposited  with  said  bank 
as  collateral  security  for  the  payment  of  this. note,  with  authority  to 
sell  the  same  at  public  or  private  sale  on  the  non-performance  of  this 
promise,  and  without  notice,  one  note  for  $500,  signed  by  F.  A.  Moses, 
and  indorsed  by  Chas.  H.  Moses,  Henry  L.  Moses,  and  Mary  P.  Moses." 
The  $500  note  thus  pledged  was  dated  10th  December,  1892,  and 
matured  six  months  after  date.  Long  after  maturity  of  the  original 
note,  to  wit,  in  February,  1899,  and  after,  by  various  payments  made 
upon  it  by  its  maker,  there  was  left  due  on  it,  in  principal  and  interesl , 
only  $86.50,  the  Central  Savings  Bank  passed  into  the  hands  of  a 
ceiver,  who  sold  a  considerable  part  of  its  assets,  including  this  note,  to 
Galbraith  &  Maloney,  of  Knoxville.  With  this  note  was  also  delivered 
to  them  the  collateral  in  question.  Having  received  these  assets,  on 
the  7th  of  March,  1899,  these  transferees  posted  the  following  Notice  : 
"On  Thursday,  March  9,  1899,  at  11  o'clock  a.m.  we  will  sell  to  the 
highest  bidder,  for  cash,  in  front  of  the  court-house  door  in  Knoxville, 
certain  collaterals  attached  to  various  notes  assigned  to  us  by  the  Cen- 
tral Savings  Bank,  which  collaterals  will  be  produced  at  the  sale.  Tins 
March  7,  1899.     [Signed]  Galbraith  &  Maloney."     Pursuant   to  this 


134  PLEDGES. 

notice,  and  without  any  demand  upon  the  maker  of  the  original  note, 
these  parties  undertook  to  sell  the  collateral  in  question,  when,  S.  C. 
Jarnigan  having  bid  for  it  the  sum  of  $87.50,  it  was  delivered  to  him  as 
the  purchaser.  Thereupon,  claiming  to  be  its  owner  under  this  purchase, 
he  filed  his  petition  in  this  cause,  instituted  to  wind  up  the  estate  of 
Mary  P.  Moses,  now  deceased,  one  of  the  indorsers  of  this  collateral, 
asking  that  he  be  given  a  decree  for  the  face  value  of  the  note  and  inter- 
est upon  it.  The  chancellor  allowed  a  decree  for  the  sum  of  $87.50, 
the  amount  paid  by  him.  From  this  decree  he  prayed  an  appeal,  and 
the  court  of  chancery  appeals  reversed  the  chancellor  and  dismissed  his 
petition.     From  the  finding  of  this  latter  court,  he  has  appealed. 

For  the  purpose  of  this  case,  it  may  be  conceded  that  the  power  of 
sale  given  in  this  contract  of  pledge  was  not  a  personal  trust  to  be 
exercised  by  the  payee  alone,  but  under  the  terms,  "to  the  order  of," 
would  pass  to  an  assignee,  as  in  a  mortgage,  where  the  authority  is 
given  to  the  mortgagee  or  "assigns."  2  Ping.  Chat.  Mortg.  §  1320. 
But  this  concession  will  not  avail  the  petitioner,  Jarnigan ;  for  there  is 
an  objection  we  think  fatal  to  this  claim.  As  has  been  seen,  the  origi- 
nal note  was  nearly  four  years  past  maturity  at  the  time  of  this  at- 
tempted sale.  The  first  holder  had  from  time  to  time  accepted  pay- 
ments upon  it,  until  there  was  only  $50  of  the  principal  due  upon  it. 
No  demand  was  made  upon  its  maker  by  Galbraith  &  Maloney  to  pay 
it  and  redeem  the  collateral,  nor  was  any  notice  of  the  purpose  to  sell 
given  him  ;  the  only  notice  being  the  one  hereinbefore  set  out.  By  the 
terms  of  the  pledge  the  bank  was  vested  "with  authority  to  sell  the 
same  [the  collateral]  at  public  or  private  sale  on  the  non-performance 
of  this  promise  [that  is,  the  promise  to  pay  90  days  after  date]  without 
notice."  But  is  there  any  law  which  would  regard  a  sale  made  by  the 
bank  under  the  conditions  mentioned  as  a  proper  exercise  of  this  author- 
ity ?  The  acceptance  of  payments  from  the  maker  of  the  original  note 
at  different  times  after  maturity,  and  the  indulgence  given  to  him  for 
near  four  years,  necessarily  lulled  him  into  a  sense  of  security.  He  had 
a  right  to  suppose,  under  these  circumstances,  and  after  his  note  had 
been  reduced  to  a  trifling  balance,  that  before  exercising  the  right  to 
sell,  a  demand  would  be  made  upon  him  to  redeem  his  collateral.  The 
general  rule  is,  in  the  absence  of  express  authority,  that  the  pledgee  has 
no  right  to  dispose  of  collateral  securities,  such  as  bills  and  notes,  upon 
default  in  the  payment  of  the  original  debt.  Joliet  Iron  &  Steel  Co. 
v.  Scioto  Fire-Brick  Co.,  82  111.  548,  25  Am.  Rep.  341 ;  Canal  Co.  v. 
Lewis,  12  N.  J.  Eq.  323  ;  Stevens  v.  Wiley,  165  Mass.  402,  43  N.  E.  177. 
It  is  otherwise,  however,  when  the  authority  to  sell  is  given  by  the  con- 
tract of  pledge.  But  "such  a  power,  so  far  as  it  enables  the  pledgee 
to  extinguish  the  right  of  the  pledgor  to  redeem,  will,  as  other  contracts 
affecting  equities  of  redemption,  be  construed  favourably  for  the  interests 
of  the  pledgor,  so  far  as  is  consistent  with  the  rights  of  the  pledgee.  The 
power  of  sale  must  be  exercised  Math  a  view  to  the  interest  of  the  pledgor, 


LIEN.  135 

as  well  as  of  the  pledgee,  and  the  sale  must  not  be  forced  for  barely 
enough  money  to  secure  the  payment  of  the  debt."  Cole.  Coll.  Sec, 
§118. 

We  think  the  sale  complained  of  was  in  disregard  of  these  equitable 
principles,  and  that,  if  it  had  been  made  at  the  instance  of  the  original 
holder,  it  would  not  have  been  tolerated  by  a  court  of  conscience.  No 
more  favour  will  be  shewn  to  it  when  made  by  Galbraith  &  Maloney 
under  a  notice  which  gave  no  information  to  the  pledgor. 

[Portion  of  opinion  on  a  question  of  practice  is  omitted.  The  decree 
of  the  lower  court  was  affirmed.] 


136  WAREHOUSEMEN. 


III.    WAREHOUSEMEN. 

1.  DUTIES. 

SCHMIDT  v.   BLOOD. 

9  Wend.  (N.  Y.  S.  C.)  267;   24  Am.  Dec.  143.     1832. 

This  was  an  action  of  replevin,  tried  at  the  New  York  circuit  in  April, 
1831,  before  the  Hon.  Ogden  Edwards,  one  of  the  circuit  judges. 

In  November,  1828,  the  plaintiffs  stored  with  the  defendants,  who 
were  warehousemen  at  Brooklyn,  99  tons  of  hemp,  parcels  of  which  were 
from  time  to  time  delivered  upon  the  order  of  the  plaintiffs.  In  Jan- 
uary, 1830,  the  defendants  informed  the  plaintiffs  that  about  10  tons 
of  hemp  had  been  purloined  from  thei»-  stores  by  their  storekeeper, 
and  requested  their  assistance  in  recovering  the  property.  In  February, 
1830,  the  plaintiffs  demanded  of  the  defendants  the  hemp  then  remain- 
ing in  the  store,  being  six  and  a  half  tons,  and  tendered  to  them  as  the 
storage  of  the  same,  $150,  which  sum  exceeded  the  amount  to  which 
the  defendants  were  entitled  as  storage  for  the  quantity  then  on  hand. 
The  defendants  refused  to  receive  the  money  tendered,  saying  they  had 
the  key  of  the  store  and  meant  to  keep  it ;  that  the  hemp  had  been  in 
store  a  good  while  and  no  storage  had  been  paid  upon  it.  The  plaintiffs 
sued  out  a  writ  of  replevin,  and  the  six  and  a  half  tons  of  hemp  were 
delivered  to  them  by  the  sheriff.  On  these  facts  the  plaintiffs  rested. 
The  defendants  then  offered  to  prove  the  purloining  of  the  10  tons  by 
their  storekeeper,  and  that  they  forthwith  gave  notice  thereof  to  the 
plaintiffs ;  that  the  hemp  purloined  had  been  sold  to  a  mercantile 
firm  of  the  name  of  Forbush  and  Albert,  who  were  abundantly  solvent ; 
that  they  urged  the  plaintiffs  to  replevy  the  hemp  out  of  the  hands  of 
Forbush  and  Albert,  but  that  having  brought  an  action  of  trover,  the 
plaintiffs  declined  to  do  so.  They  further  offered  to  prove,  that  with 
the  exception  of  the  10  tons  purloined  and  the  six  and  a  half  tons  taken 
under  the  replevin  in  this  cause,  they  had  accounted  for  the  whole 
quantity  of  the  hemp  stored  with  them ;  that  their  storage  bills  for  the 
whole  quantity,  amounting  to  $360.79,  remained  unpaid ;  and  that  by 
the  custom  and  usage  of  merchants  in  New  York  and  Brooklyn,  they 
had  a  lien  upon  the  six  and  a  half  tons  remaining  on  hand  at  the  time 
of  the  tender,  for  the  general  balance  due  to  them.  The  judge  refused 
to  receive  the  evidence  of  usage,  as  being  contrary  to  the  law  of  the  land, 
and  ruled  that  he  would  not  hear  the  other  evidence  offered  unless  the 
defendants  would  prove  that  the  hemp  alleged  to  have  been  purloined 
ha.d  been  taken  with  the  knowledge  or  assent  of  the  plaintiffs,  or  that 


DUTIES.  137 

the  person  who  took  it  was  not  the  partner  or  storekeeper  of  the  defend- 
ants. The  defendants  not  being  able  to  furnish  such  proof,  the  judge 
directed  a  verdict  for  the  plaintiffs,  which  was  accordingly  rendered. 
The  defendants  ask  for  a  new  trial. 

By  the  Court,  Sutherland,  J.  It  appears  to  be  well  settled,  that 
a  ivarehouseman,  or  depositary  of  goods  for  hire,  is  responsible  only  for 
ordinary  care,  and  is  not  liable  for  loss  arising  from  accident  when  he  is 
not  in  default ;  2  Kent's  Comm.  441 ;  4  T.  R.  481 ;  Peake's  X.  P.  114; 
4  Esp.  N.  P.  R.  262 ;  and  in  Finucane  v.  Small,  1  Esp.  X.  P.  R.  315, 
it  was  held  that  if  goods  be  bailed  to  be  kept  for  hire,  if  the  compensa- 
tion be  for  kouseroom,  and  not  a  reward  for  care  and  diligence,  the  bailee 
is  only  bound  to  take  the  same  care  of  the  goods  as  of  his  own,  and  if 
they  be  stolen  or  embezzled  by  his  servant,  without  gross  negligence  on 
his  part,  he  is  not  liable ;  and  the  onus  of  shewing  negligence  seems  to 
be  upon  the  plaintiff,  unless  there  is  a  total  fault  in  delivering  or  account- 
ing for  the  goods.  7  Cowen,  500,  note  a,  and  cases  there  cited  ;  3  Taunt. 
264 ;  5  Barn.  &  Cres.  322 ;  1  H.  Black,  298 ;  Jones  on  Bailment,  106, 
n.  40 ;  2  Salk.  655 ;  1  T.  R.  33.  The  defendant's  claim  for  storage, 
therefore,  is  not  prejudiced  by  the  fact  that  a  portion  of  the  goods  had 
been  purloined  or  embezzled  by  the  storekeeper  or  servant. 

The  defendants  had  a  lien  on  the  whole  and  every  part  of  the  hemp 
for  their  storage  of  the  whole ;  it  was  but  one  parcel ;  the  whole  was 
deposited  with  them  at  the  same  time  ;  it  was  but  one  transaction.  It 
is  admitted  that  the  defendants  might  have  refused  to  deliver  any  por- 
tion of  the  hemp  until  their  storage  for  that  particular  portion  was  paid  ; 
but  having  parted  with  all  but  six  and  a  half  tons,  it  is  contended  that 
they  have  no  right  to  retain  that  for  their  charges  in  relation  to  the 
other  portions.  This  cannot  be  ;  it  would  be  found  most  inconvenient 
in  practice.  Restricting  the  lien  to  services  rendered  in  relation  to  the 
whole  quantity  deposited  at  the  same  time,  it  becomes  a  just  and  rea- 
sonable rule,  giving  effect  undoubtedly  to  the  actual  intentions  and 
understanding  of  the  parties,  and  promoting  the  convenience  of  trade 

and  business.     2  Kent's  Comm.  495,   6. 

New  trial  granted. 


GULF   COMPRESS  CO.   v.   HARRIXGTON. 

90  Ark.  256;    119  S.  W.  R.  249;   33  L.  R.  A.  N.  S.  1205.     1909. 

McCulloch,  C.  J.  The  plaintiff,  W.  E.  Harrington,  was  the  owner 
of  34  bales  of  cotton,  which  were  destroyed  by  fire  while  held  for  stor- 
age by  the  defendant,  Gulf  Compress  Company,  in  its  warehouse  at 
Little  Rock,  Ark.  He  sued  the  defendant  for  the  value  of  the  cotton, 
and  seeks  to  establish  liability  on  the  alleged  ground  that  the  latter 
was  guilty  of  negligence  in  permitting  destruction  of  the  cotton  by  fire, 


138  WAREHOUSEMEN. 

and  he  recovered  a  judgment  for  damages,  from  which  the  defendant 
prosecutes  this  appeal. 

Learned  counsel  raise  only  two  questions  in  the  argument  here,  viz. : 
(1)  That  defendant  is  not  liable  because  it  contracted  against  liability 
for  loss  by  fire  caused  even  by  its  own  negligence ;  and  (2)  that  there 
is  not  sufficient  evidence  to  warrant  a  finding  that  its  servants  were 
guilty  of  any  negligence  which  caused  the  fire.  The  briefs  on  each  side 
contain  interesting  and  very  instructive  discussions  of  the  question 
whether  or  not  it  is  contrary  to  public  policy  to  permit  a  concern  operat- 
ing a  compress  and  receiving  cotton  for  storage  and  compression,  which 
is  said  to  be  a  business  of  a  public  or  quasi-public  nature,  or  a  business 
"affected  with  a  public  interest,"  to  contract  against  liability  to  patrons 
for  damages  caused  by  its  own  negligence. 

But  the  first  question  to  be  decided  is  whether  or  not  the  defendant 
in  this  case  did  in  fact  contract  against  such  liability ;  for,  until  we  settle 
that  question  in  the  affirmative,  it  is  unnecessary  to  go  further.  The 
written  receipts  executed  by  defendant  to  plaintiff  for  the  cotton  when 
delivered  to  it,  and  which  constituted  the  contract  between  the  parties, 
are  in  the  following  form :  "Received  on  account  of  W.  E.  Harrington 
one  bale  of  cotton,  marked  as  stated  herein,  on  storage,  to  be  delivered 
to  bearer  only  upon  the  return  of  this  receipt  and  the  payment  of  all 
advances  and  such  charges  as  may  have  accrued  under  the  current  tariff 
of  this  company.  Not  responsible  for  loss  by  fire,  acts  of  Providence, 
natural  shrinkage,  old  damage,  or  for  failure  to  note  concealed  damage." 
It  will  be  observed  that  nothing  is  expressly  said  in  the  receipt  about 
exemption  from  liability  for  negligence.  It  provides  in  general  terms 
that  there  shall  be  no  responsibility  "  for  loss  by  fire,  acts  of  Providence, 
natural  shrinkage,  old  damage,  or  for  failure  to  note  concealed  damage." 
Does  this  exemption  include  negligence  of  the  obligor  ? 

The  receipt  issued  is  in  the  form  prepared  by  the  defendant  itself. 
The  exemption  set  forth  therein  is  couched  in  language  of  its  own 
selection,  and,  according  to  well-settled  rules  of  interpretation,  should 
be  construed  in  the  strongest  light  against  it.  Judge  Thompson,  in 
his  work  on  Negligence  (vol.  1,  §  1143),  says  that,  "there  is  a  tend- 
ency of  the  law  to  discountenance  stipulations  in  contracts  between 
parties  whereby  one  of  the  parties  undertakes  to  exempt  himself  from 
liability  for  his  own  negligence,"  and  that  this  tendency  is  discovered 
in  decisions  of  the  courts  declining  to  construe  provisions  in  contracts 
so  as  to  bring  them  within  such  exemption,  even  in  cases  where  public 
policy  would  not  forbid  it  if  clearly  expressed.  In  Railton  v.  Taylor, 
20  R.  I.  279,  38  Atl.  980,  39  L.  R.  A.  246,  it  was  held  (quoting  from  the 
syllabus)  that  "  the  lessor's  own  negligence  in  the  management  and  use 
of  that  part  of  the  premises  remaining  in  his  control,  including  the  heat- 
ing apparatus,  is  not  within  a  stipulation  that  he  shall  not  be  liable 
for  any  loss  to  property  on  the  premises,  if  '  destroyed  or  damaged  by 
fire,  water,  or  otherwise,  or  by  the  use  or  abuse  of  the  Cochituate  water, 


DUTIES.  139 

or  by  the  leakage  or  breakage  of  water  pipes,  or  in  any  other  way  or 


manner.'" 


It  has  been  held  in  many  cases  that  a  receipt  given  by  a  warehouse- 
man, stipulating  that  goods  are  received  at  "owner's  risk,"  does  not 
exempt  from  damage  caused  by  negligence.  Denver  Public  Warehouse 
Co.  v.  Munger,  20  Colo.  App.  56,  77  Pac.  5 ;  Hunter  v.  Baltimore  P. 
&  C.  Co.,  75  Minn.  408,  78  N.  W.  11  ;  Collins  v.  Barnes,  63  N.  Y.  1 ; 
Herzig  v.  N.  Y.  Cold  Storage  Co.,  115  App.  Div.  40,  100  N.  Y.  Supp.' 
603.  In  the  Colorado  case  above  cited  the  court  said  :  "  Contracts 
against  liability  for  negligence  are  not  favoured  by  the  law.  In  some 
instances,  such  as  common  carriers,  they  are  prohibited  as  against  public 
policy.  In  all  such  cases  such  contracts  should  be  construed  strictly, 
with  every  intendment  against  the  party  seeking  their  protection." 
The  case  of  Dieterle  v.  Bekin,  143  Cal.  683,  77  Pac.  664,  is  precisely  in 
point.  There  the  warehouseman's  receipt  stipulated  that  there  should 
be  "no  liability  for  fire,"  etc. ;  but  it  was  held  that  this  did  not  exempt 
him  from  liability  for  fire  caused  by  negligence,  the  court  saying : 
"  Such  a  contract  should  not  be  construed  so  as  to  excuse  a  bailee  from 
the  exercise  of  ordinary  care  to  protect  the  property  from  fire." 

It  may  be  argued  that  this  construction  entirely  emasculates  the 
stipulation  and  renders  it  meaningless,  for  the  reason  that  even  without 
it  there  is  no  liability  on  the  part  of  the  warehouseman  for  loss  by  fire 
unless  the  same  be  caused  by  negligence.  That  may  be  true ;  but  even 
without  a  stipulation  of  exemption  there  is  no  responsibility  on  the  part 
of  the  warehouseman  for  loss  on  account  of  "  acts  of  Providence,  natural 
shrinkage,  old  damage,  or  for  failure  to  note  concealed  damage,"  and 
yet  the  receipts  contain  a  stipulation  exempting  from  liability  for  those 
causes.  A  warehouseman  is  no  insurer  against  damage  to  property 
held  for  storage,  and  is  liable  only  for  damage  caused  by  negligence. 
But  this  argument  affords  no  reason  for  importing  into  the  contract  a 
stipulation  for  exemption  from  liability  for  negligence  which  the  parties 
themselves  have  not  seen  fit  to  express  in  apt  words  —  a  stipulation, 
too,  which  the  law  at  least  discourages  when  it  does  not  positively  for- 
bid. If  a  stipulation  against  liability  for  negligence  had  been  intended, 
we  must  assume  that  it  would  have  been  more  aptly  expressed  in  the 
contract.  We  hold  that  the  contracts  in  question  do  not  contain 
such  exemption. 

Does  the  evidence  sustain  a  finding  of  negligence  on  the  part  of  the 
defendant  which  caused  the  destruction  of  the  cotton  ?  The  warehouse 
was  located  contiguous  to  railroad  tracks  along  which  engines  were 
frequently  passing.  A  large  lot  of  loose,  unbaled  cotton  was  kept 
there,  through  which  fire,  if  once  communicated,  would  spread  rapidly 
and  invade  the  whole  premises.  There  were  holes  and  cracks  in  the 
corrugated  iron  wall  of  the  shed  on  the  side  next  to  the  railroad  tracks. 
A  door  was  permitted  to  get  out  of  repair,  and  remain  so  for  a  consid- 
erable time,  so  that  it  could  not  be  closed.     It  is  claimed  that  in  this 


140  WAREHOUSEMEN. 

way  the  property  in  store  was  kept  in  close  proximity  to  the  more  highly 
inflammable  loose  cotton,  and  that  the  whole  was  exposed,  on  account 
of  the  open  door  and  holes  in  the  wall,  to  danger  from  sparks  escaping 
from  passing  locomotives.  There  was  evidence  to  the  effect  that  about 
twenty  minutes  before  the  fire  was  discovered  an  engine  passed  along 
by  t he  warehouse  puffing  very  hard.  The  fire  is  not  otherwise  accounted 
for,  and,  considering  all  the  circumstances,  we  are  of  the  opinion  that 
the  jury  had  the  right  to  infer  that  the  fire  was  communicated  from 
the  passing  engine,  and  to  find  that  the  defendant  was  negligent  in  ex- 
posing the  stored  cotton,  without  proper  protection,  to  this  danger. 
St.  L.,  I.  M.  &  S.  Ry.  Co.  v.  Coombs,  76  Ark.  132,  88  S.  W.  595. 
Affirmed. 


2.   RECEIPTS. 

SINSHEIMER  v.  WHITELY. 
Ill  Cal.  378;   43  Pac.  R.  1109;   52  Am.  St.  R.  192.     1896. 

Britt,  C.  Replevin  for  two  hundred  and  seventeen  sacks  of  beans. 
Defendant  Whitely  is  constable  of  a  certain  township  in  San  Luis  Obispo 
county,  and  as  such  levied  on  the  beans  as  the  property  of  one  Costa 
in  virtue  of  a  writ  of  attachment  to  him  issued  out  of  the  justice's  court 
of  said  township  at  the  suit  of  one  Lial  against  said  Costa.  At  the 
time  of  the  levy  the  beans  were  stored  in  a  warehouse  at  Pismo,  in  said 
county,  owned  by  the  Jordan  Bituminous  Rock  and  Paving  Company, 
a  corporation,  which  is  joined  with  the  constable  as  a  defendant  in  this 
action.  In  November,  1893,  said  Costa,  who  was  then  the  owner  of 
the  beans,  caused  them  to  be  weighed  at  said  warehouse  and  deposited 
therein,  receiving  from  said  paving  company  at  that  time  five  certain 
instruments,  which  plaintiffs  style  "warehouse  receipts,"  and  which 
defendants  call  "weighing  tags";  these  were  in  the  following  form, 
varying  as  to  the  number  of  sacks  specified :  "  Jordan  Bit.  Rock  and 
Pav.  Co.'s  scales,  Pismo,  Cal.,  11-2,  1893.  Weighed  for  F.  J.  Silva. 
Gross,  5080.  Tare,  1570.  40  sks.  beans.  Net  wt.  3510.  Marked 
F.  J.  S.  A.  Klatt,  weigher."  They  were  issued  at  Costa's  request  in 
the  name  of  one  F.  J.  Silva,  with  consent  of  the  latter,  but  were  delivered 
to  Costa ;  Silva  never  had  possession  of  them  and  had  no  interest  in 
the  beans.  A  Mr.  Stevens,  agent  of  said  company,  and  who  had  charge 
of  the  warehouse,  testified  at  the  trial :  "  The  tags  in  evidence  were 
issued  by  our  company  at  Pismo,  and  are  the  only  kind  issued  by  our 
company,  the  only  receipts  given.  They  are  given  by  the  weigher ; 
the  tags,  or  whatever  you  call  them,  were  given  by  the  weigher  at  the 
scales  when  the  beans  were  weighed  and  were  placed  in  the  ware- 


RECEIPTS.  141 

house";    also,  that  the  company  took  the  beans  as  a  warehouseman, 
but  had  no  charge  against  them ;   that  it  does  not  charge  storage. 

On  December  6,  1893,  Costa  delivered  said  instruments,  though  with- 
out indorsement,  to  plaintiffs  as  security  for  a  debt  then  owed  by  him 
to  them.  He  also  gave  them  a  written  order  for  the  beans  addressed 
to  "Agent  Pismo  Wharf  and  Warehouse."  December  1 1th,  following, 
the  constable  seized  the  beans  pursuant  to  said  writ  in  Lial's  suit  again  I 
Costa;  Lial  obtained  judgment  in  that  action  and  an  execution  issued 
thereon,  under  which  the  constable  was  about  to  sell  the  bean-  when 
plaintiffs  for  the  first  time  notified  him  and  also  the  paving  company 
of  their  claim  to  the  property  in  virtue  of  the  transfer  to  them  of  said 
alleged  warehouse  receipts ;  their  demand  for  release  of  the  property 
being  refused,  they  brought  this  action. 

A  warehouse  receipt  has  been  denned  to  be  a  written  contract  between 
the  owner  of  the  goods  and  the  warehouseman,  the  latter  to  store  the 
goods  and  the  former  to  pay  for  that  service.  (Hale  v.  Milwaukee  Dock 
Co.,  29  Wis.  488 ;  9  Am.  Rep.  603.)  Perhaps  some  of  the  terms  of  this 
contract  may  be  implied  (see  forms  of  such  receipts  construed  in  Lowrie 
v.  Salz,  75  Cal.  349,  and  Bishop  v,  Fulkerth,  68  Cal.  607) ;  but  surely 
there  ought  to  be  something  on  the  face  of  the  instrument  to  indicate 
that  a  contract  of  storage  has  been  entered  into ;  our  statute  on  the 
subject  requires  that  much  (Stats.  1877-1878,  p.  949,  §  5) ;  the  lan- 
guage in  the  papers  here,  "Weighed  for  F.  J.  Silva  forty  sacks  beans," 
no  more  signifies  that  the  paving  company  received  or  held  the  beans 
as  a  warehouseman  than  it  bought  or  sold  the  same,  or  shipped  them  to 
a  distant  port;  on  their  face  they  plainly  are  not  warehouse  receipts. 
(Cathcart  v.  Snow,  64  Iowa,  584 ;  Robson  v.  Swart,  14  Minn.  371  ; 
100  Am.  Dec.  238.)  But  it  is' said  that  the  tickets  were  the  only 
vouchers  issued  by  the  defendant  company,  and  hence  must  be  treated 
as  warehouse  receipts.  Rather,  it  seems  to  us,  that  circumstance  tends 
to  show  that  said  company  was  not  a  warehouseman  at  all  in  the  sense 
which  the  law  attributes  to  that  term  —  an  inference  corroborated  by 
the  fact  that  it  makes  no  charge  for  storage.  It  is  only  persons  who 
pursue  the  calling  of  warehousemen  —  that  is,  receive  and  store  goods 
in  a  warehouse  as  a  business  for  profit  —  that  have  power  to  issue  a 
technical  warehouse  receipt,  the  transfer  of  which  is  a  good  delivery  of 
the  goods  represented  by  it.  (Shepardson  v.  Cary,  29  Wis.  42  ;  Bucher 
v.  Commonwealth,  103  Pa.  St.  534;  Edwards  on  Bailments,  §  332.) 
Since  there  was  nothing  equivalent  to  delivery  of  the  beans  in  the 
transaction  between  Costa  and  plaintiffs,  the  rights  of  the  attach 
officer  are  not  affected  by  the  attempted   transfer. 

The  court  found  that  the  constable  made  no  valid  levy  of  the  writ  ; 
and  some  effort  is  made  here  to  justify  the  finding.     It  seems  to  us  a  in  i 
conclusion  of  law;    but,  admitting  it  to  be  a  finding  of  ultimate  fa< 
it  is  not  sustained  by  the  evidence.     It  appears  from  the  constable's 
return  and  certain  parol  evidence  (which  was  admissible  in  aid  ol  the 


142  WAREHOUSEMEN. 

return,  Brusie  v.  Gates,  80  Cal.  462),  that  he  took  actual  possession  of 
the  beans  in  the  warehouse  and  placed  said  Stevens  in  charge  thereof 
as  keeper ;  there  were  some  further  proceedings  by  him  to  charge  both 
Silva  and  the  paving  company  as  garnishees,  but  the  sufficiency  of  these 
need  not  be  looked  to ;  his  possession  by  his  keeper  was  a  compliance 
with  the  statute.     (Code  Civ.  Proc,  §  542,  subd.  3.) 

The  judgment  and  order  denying  defendants'  motion  for  new  trial 
should  be  reversed. 


ANDERSON  v.  PORTLAND  FLOURING  MILLS  CO. 
37  Oreg.  483 ;  60  Pac.  R.  839 ;  50  L.  R.  A.  235  ;  82  Am.  St.  R.  771.     1900. 

[Action  for  conversion  of  wheat  alleged  to  have  been  delivered  to 
defendant  as  warehouseman  by  plaintiff  and  others  severally,  through 
W.  E.  Loughmiller  &  Co.,  its  agent,  the  warehouse  receipt  being  issued 
in  each  case  in  the  name  of  said  Loughmiller  &  Co.  Plaintiff  is  named 
as  storer  in  some  of  the  receipts  and  holds  other  of  the  receipts  as  trans- 
feree of  the  persons  named  therein  as  storers.  There  was  judgment  for 
plaintiff  and  defendant  appeals.] 

Mr.  Justice  Bean.  To  support  the  first,  third,  and  sixth  causes  of 
action,  the  plaintiff  introduced  in  evidence  five  warehouse  receipts, 
dated  at  Silverton,  Oreg.,  and  signed  by  W.  E.  Loughmiller  &  Co., 
and  was  permitted,  over  defendant's  objection  and  exception,  to  give 
evidence  aliunde  the  receipts,  tending  to  prove  that  Loughmiller  &  Co., 
in  signing  and  issuing  them,  were  acting  as  the  agents  of  the  defendant, 
and  that  such  receipts  were  in  fact  the  contracts  of  the  defendant.  The 
admission  of  this  evidence  constitutes  the  first  assignment  of  error  upon 
which  the  defendant  relies  for  a  reversal  of  the  judgment.  The  wheat 
receipts  referred  to  are  identical,  except  as  to  dates,  names,  and  amounts, 
and  it  will  be  sufficient  for  the  purposes  of  this  appeal  to  set  forth  one 
of  them.     It  is  as  follows :  — 

"No.  1.  Silverton,  Or.,  Sept.  7,  1891 

"Received  from  John  Gash  one  thousand  two  hundred  and  ninety-four 
40-60  bushels  of  good,  merchantable  wheat,  to  be  forwarded  to  Oregon 
City,  Oregon,  and  stored  with  the  Portland  Flouring  Mills  Co.,  subject  to 
the  following  conditions:  W.  E.  Loughmiller  &  Co.  are  to  have  the  first 
privilege  of  purchasing  this  wheat  for  cash  at  any  time  the  storer  concludes 
to  sell,  and  said  wheat  is  subject  to  storage  charges  of  two  and  one-half 
cents  per  bushel,  and  freight  charges  from  shipping  [point]  to  Oregon  City. 
Upon  demand,  this  quantity  of  good,  merchantable  wheat  will  be  deliv- 
ered to  the  storer,  sacked,  upon  the  payment  of  the  above-mentioned  stor- 
age and  freight  charges,  and  four  cents  per  bushel  for  sacks ;  but  no  order  of 
storer  will  be  accepted  by  the  Portland  Flouring  Mills  Co.  unless  counter- 


RECEIPTS.  143 

signed  by  W.  E.  Loughmiller  &  Co.  But  in  no  case  shall  W.  E.  Lough- 
miller  &  Co.,  or  the  Portland  Flouring  Mills  Co.,  be  held  liable  for  acciden- 
tal loss  or  damage  to  said  wheat  by  the  action  of  the  elements. 

"W.  E.  Loughmiller  &  Co. 

"Per  J.  A.  L." 
"  1294  40-60  bushels. 

1.  The  defendant's  contention  is  that,  since  warehouse  receipts  in 
this  state  are  by  statute  made  negotiable,  the  rule  of  law  that  the  lia- 
bility of  a  party  upon  a  negotiable  instrument  must  be  established  by 
the  terms  of  the  writing  itself,  and  cannot  be  shown  by  evidence  aliunde, 
is  applicable  to  such  receipts.  It  may  be  regarded  as  a  settled  rule  of 
the  common  law  that,  if  the  person  sought  to  be  charged  upon  a  nego- 
tiable instrument  is  not  bound  upon  the  face  of  the  writing,  he  is  not 
bound  at  all,  and  it  cannot  be  shown  that  the  maker  was  in  fact  the 
agent  of  another,  and  that  such  other  is  bound  by  the  instrument. 

The  observation  of  Andrews,  J.,  in  Briggs  v.  Partridge,  64  N.  Y.  357 
(21  Am.  Rep.  617),  that  "persons  dealing  with  negotiable  instruments 
are  presumed  to  take  them  on  the  credit  of  the  parties  whose  names 
appear  upon  them,  and  a  person  not  a  party  cannot  be  charged  upon 
proof  that  the  ostensible  party  signed  or  indorsed  as  his  agent,"  is  a 
clear  statement  of  the  law,  and  supported  by  the  authorities :  Chitty, 
Bills  &  N.  33  ;  Heaton  v.  Myers,  4  Colo.  59 ;  Arnold  v.  Sprague,  34  Vt. 
402;  Stackpole  ».  Arnold,  11  Mass.  27  (22  Am.  Dec.  150);  Bedford 
Ins.  Co.  v.  Covell,  8  Mete.  (Mass.)  442  ;  Tucker  Mfg.  Co.  v.  Fairbanks, 
98  Mass.  101 ;  Rendell  v.  Harriman,  75  Me.  497  (46  Am.  Rep.  421) ; 
De  Witt  v.  Walton,  9  N.  Y.  571 ;  Robinson  v.  Kanawha  Valley  Bank, 
44  Ohio  St.  441  (58  Am.  Rep.  829,  8  N.  E.  583).  But  this  rule  is,  in 
our  opinion,  confined  to  commercial  contracts,  which  represent,  and,  in 
a  measure,  pass  as  money,  —  such  as  bills  of  exchange  and  promissory 
notes.  Parol  evidence  is  not  admissible  to  charge  an  unnamed  prin- 
cipal on  such  an  instrument;  for,  in  the  language  of  the  authoriti- 
a  note  or  bill  of  exchange  " '  is  a  courier  without  luggage,'  whose  coun- 
tenance is  its  passport";  1  Daniel,  Neg.  Inst.  (4  ed.)  §  303.  And  as 
said  in  an  early  case  on  the  question  :  "  It  would  be  of  dangerous  conse- 
quence to  trade  to  admit  of  evidence  arising  from  extrinsic  circumstan* 
...  A  bill  of  exchange  is  a  contract,  by  the  custom  of  merchants, 
and  the  whole  of  that  contract  must  be  in  writing"  :  Thomas  v.  Bishop, 
2  Strange,  955.  Mr.  Daniel,  in  the  section  already  cited,  says  :  '  The 
rule  excluding  parol  evidence  to  charge  an  unnamed  principal  as  a  party 
to  negotiable  paper  is  derived  from  the  nature  of  such  paper,  which, 
being  made  for  the  purpose  of  being  transferred  from  hand  to  hand,  and 
of  giving  to  every  successive  holder  as  strong  a  claim  upon  the  original 
party  as  the  payee  himself  has,  must  indicate  on  its  face  who  is  bound 
for  its  payment ;  for  any  additional  liability  not  expressed  in  the  paper 
would  not  be  negotiable."     Section  4205  of  Hill's  Ann.  Laws  provides 


144  WAREHOUSEMEN. 

that  "  all  checks  or  receipts  given  by  any  person  operating  any  ware- 
house, commission  house,"  etc.,  "are  hereby  declared  negotiable,  and 
may  be  transferred  by  indorsement  of  the  party  to  whose  order  such 
check  or  receipt  was  given  or  issued,  and  such  indorsement  shall  be 
deemed  a  valid  transfer  of  the  commodity  represented  by  such  receipt, 
and  may  be  made  either  in  blank  or  to  the  order  of  another."  By  this 
statute,  a  warehouse  receipt,  regardless  of  its  form,  is  made  negotiable, 
in  the  sense  that  a  transfer  thereof  by  indorsement  carries  the  absolute 
title  to  the  commodity  represented  by  the  receipt,  and  a  bona  fide  pur- 
chaser for  value  is  not  chargeable  with  knowledge  or  notice  of  any 
equities  between  the  original  parties,  as  in  case  of  the  assignment  of  an 
ordinary  chose  in  action :  State  v.  Koshland,  25  Or.  178  (35  Pac.  32) ; 
Bishop  v.  Fullkerth,  68  Cal.  607  (10  Pac.  122) ;  Price  v.  Wisconsin  Fire 
Ins.  Co.,  43  Wis.  267 ;  First  Nat.  Bank  ».  Dean,  137  N.  Y.  110  (32  N.  E. 
1108) ;  First  Xat.  Bank  v.  Boyce,  78  Ky.  42  (39  Am.  Rep.  208) ;  Collins 
v.  Rosenham  (Ky.),  43  S.  W.  726. 

2.  But  the  statute  does  not  give  to  such  receipts  all  the  attributes 
of  negotiable  paper.  A  transfer  of  the  receipt  by  indorsement  may 
operate,  under  the  statute,  to  transfer  and  vest  the  title  of  the  goods  in 
the  purchaser,  where  before  it  would  not,  but  the  nature  of  the  contract 
itself  is  unchanged.  It  is  in  no  sense  a  negotiable  instrument  under 
the  law  merchant.  It  is  simply  a  written  acknowledgment  by  the 
warehouseman  that  he  has  received,  and  holds  in  store  for  the  deposi- 
tor, the  amount  and  description  of  property  named  in  the  receipt,  upon 
the  terms  and  conditions  therein  stated,  and  it  is  nothing  more  than  a 
written  contract  between  the  parties,  which  by  the  statute  is  made 
negotiable  for  certain  purposes.  The  word  "negotiable"  is  evidently 
not  used  in  the  statute  in  the  sense  in  which  it  is  ordinarily  applied  to 
bills  of  exchange  and  promissory  notes. 

A  very  satisfactory  case  upon  this  subject  is  Shaw  v.  Railroad  Co., 
101  U.  S.  557  [685].  In  that  case  the  question  was  as  to  the  right  of  a 
purchaser  from  a  thief,  for  value,  and  without  notice,  of  a  bill  of  lading 
issued  in  Missouri  for  goods  to  be  carried  to  Pennsylvania,  and  which 
by  the  statutes  of  both  states  was  made  negotiable.  In  considering 
the  question,  it  did  not  appear  necessary  to  inquire  whether  the  statute 
of  Missouri  or  of  Pennsylvania  should  be  regarded  as  affecting  the  con- 
tract, since,  in  the  opinion  of  the  court,  there  was  no  substantial  differ- 
ence between  the  statutes  of  the  two  states  in  that  regard.  The  lan- 
guage of  the  Pennsylvania  statute  was,  they  (bills  of  lading)  "shall  be 
negotiable  and  may  be  transferred  by  indorsement  and  delivery," 
while  that  of  Missouri  was,  "  they  shall  be  negotiable  by  written  indorse* 
ment  thereon  and  delivery  in  the  same  manner  as  bills  of  exchange  and 
promissory  notes."  But  neither  statute  undertook  to  define  the  effect 
of  such  transfer,  and  it  therefore  became  necessary  for  the  court  to  look 
outside  of  them  to  learn  what  the  legislature  meant  by  declaring  such 
instruments   "negotiable."     After  defining  that  term,   as  applied  to 


RECEIPTS.  145 

contracts,  to  mean  primarily  the  capability  of  being  transferred  by 
indorsement  and  delivery,  so  as  to  give  to  the  indorsee  a  right  to  sue 
thereon  in  his  own  name,  and  pointing  out  that  certain  consequences 
generally,  though  not  always,  follow  the  indorsement  or  transfer  of  bills 
and  notes,  —  such  as  the  liability  of  an  indorser  and  the  rights  of  a 
bona  fide  purchaser  before  maturity  and  from  a  finder  or  thief,  —  it 
says:  "But  none  of  these  consequences  are  necessary  attendant 
constituents  of  negotiability.  That  may  exist  without  them.  A  bill 
»r  note  past  due  is  negotiable,  if  it  be  payable  to  order  or  bearer,  but 
its  indorsement  or  delivery  does  not  cut  off  the  defenses  of  the  maker 
or  acceptor  against  it,  nor  create  such  a  contract  as  results  from  an 
indorsement  before  maturity,  and  it  does  not  give  to  the  purchaser  of 
a  lost  or  stolen  bill  the  rights  of  the  real  owner.  It  does  not  necessarily 
follow,  therefore,  that,  because  a  statute  has  made  bills  of  lading  nego- 
tiable by  indorsement  and  delivery,  all  these  consequences  of  an  indorse- 
ment and  delivery  of  bills  and  notes  before  maturity  ensue  or  are  in- 
tended to  result  from  such  negotiation." 

Again,  after  observing  that  bills  of  exchange  and  promissory  notes 
are  exceptional  in  their  character,  pass  from  hand  to  hand  as  coin,  and 
the  interests  of  trade  require  that  a  bona  fide  purchaser  for  value  should 
not  be  bound  to  look  beyond  the  instrument,  the  court  proceeds  :  "  The 
reason  can  have  no  application. to  the  case  of  a  lost  or  stolen  bill  of  lad- 
ing. The  function  of  that  instrument  is  entirely  different  from  that  of 
a  bill  or  note.  It  is  not  a  representative  of  money,  used  for  the  trans- 
mission of  money,  or  for  the  payment  of  debts  or  for  purchases.  It 
does  not  pass  from  hand  to  hand  as  bank  notes  or  coin.  It  is  a  contract 
for  the  performance  of  a  certain  duty.  True,  it  is  a  symbol  of  owner- 
ship of  the  goods  covered  by  it  —  a  representative  of  those  goods.  But, 
if  the  goods  themselves  be  lost  or  stolen,  no  sale  of  them  by  the  finder 
or  thief,  though  to  a  bona  fide  purchaser  for  value,  will  divest  the  owner- 
ship of  the  person  who  lost  them,  or  from  whom  they  were  stolen.  .  .  . 
Bills  of  lading  are  regarded  as  so  much  cotton,  grain,  iron,  or  other 
articles  of  merchandise.  The  merchandise  is  very  often  sold  or  pledged 
by  the  transfer  of  the  bills  which  cover  it.  They  are,  in  commerce,  a 
very  different  thing  from  bills  of  exchange  and  promissory  notes,  an- 
swering a  different  purpose  and  performing  different  functions.  It 
cannot  be,  therefore,  that  the  statute  which  made  them  negotiable  by 
indorsement  and  delivery,  or  negotiable  in  the  same  manner  as  bills  of 
exchange  and  promissory  notes  are  negotiable,  intended  to  change  totally 
their  character,  put  them  in  all  respects  on  the  footing  of  instruments 
which  are  the  representatives  of  money,  and  charge  the  negotiation  of 
them  with  all  the  consequences  which  usually  attend  or  follow  the 
negotiation  of  bills  and  notes.  Some  of  these  consequences  would  be 
very  strange,  if  not  impossible ;  such  as  the  liability  of  indorsers,  the 
duty  of  demand  ad  diem,  notice  of  non-delivery  by  the  carrier,  etc.,  or 
loss  of  the  owner's  property  by  the  fraudulent  assignment  of  a  thief. 


146  WAREHOUSEMEN. 

If  these  were  intended,  surely  the  statute  would  have  said  something 
more  than  merely  make  them  negotiable  by  indorsement." 

We  are  of  the  opinion,  therefore,  that  a  warehouse  receipt  is  not  nego- 
tiable, within  the  meaning  of  the  rule  prohibiting  the  admission  of  parol 
testimony  to  charge  one  not  bound  upon  the  face  of  the  instrument,  but 
in  that  respect  it  is  a  simple  contract,  and  such  evidence  is  admissible 
to  show  that,  although  executed  by  and  in  the  name  of  an  agent,  it  is 
in  fact  the  contract  of  the  principal,  and  he  is  bound  thereby  :  Barbre 
v.  Goodale,  28  Or.  465  (38  Pac.  67,  43  Pac.  378). 

It  is  contended,  however,  that,  even  if  the  receipts  are  not  negotiable, 
they  are  nevertheless  presumptively  the  contract  of  Loughmiller  & 
Co.  alone,  and  plaintiff  cannot  recover  upon  either  the  first,  third,  or 
sixth  cause  of  action,  for  the  reason  that  there  was  no  evidence  to  rebut 
such  presumption,  or  to  show  that  Loughmiller  &  Co.  were  in  fact  de- 
fendant's agents.  A  considerable  portion  of  defendant's  brief  is  devoted 
to  the  discussion  of  this  question,  which  we  regard,  however,  as  one  of 
fact  for  the  jury,  and  not  for  the  court.  There  was  evidence  given  at 
the  trial  on  behalf  of  plaintiff,  tending  to  show,  and  from  which  the 
jury  were  justified  in  finding  that  Loughmiller  &  Co.  were  in  fact  the 
agents  of  defendant,  and  received  the  wheat  and  executed  the  receipts 
as  such.  It  is  unnecessary  for  us  to  incumber  this  opinion  by  a  refer- 
ence to  the  testimony  in  detail.  It  is  sufficient  to  say  that  we  have 
examined  it  with  much  care,  and  are  satisfied  that  the  court  committed 
no  error  in  overruling  the  motion  for  nonsuit  on  this  ground. 

[Portions  of  the  opinion  relating  to  the  form  of  action  and  the  suffi- 
ciency of  the  evidence  are  omitted.] 

3.  It  is  next  contended  that  the  payment  or  tender  of  storage,  freight, 
and  sack  charges  was  a  condition  precedent  to  the  right  to  maintain 
this  action,  and  the  written  tender  was  not  sufficient,  but  the  money 
should  have  been  paid  into  court.  The  defendant,  by  its  answer,  denies 
the  contract  alleged  in  the  complaint,  and  the  plaintiff's  title  and  right 
to  the  possession  of  the  wheat  in  controversy,  and  expressly  puts  its 
refusal  to  deliver  upon  the  ground  that  neither  plaintiff  nor  his  assignors 
ever  shipped  or  delivered  to  it  any  wheat  whatever ;  and  therefore  it 
cannot  now  be  permitted  to  say  that  its  refusal  to  deliver  the  grain  was 
on  account  of  the  failure  of  plaintiff  to  pay  the  charges  referred  to : 
Wyatt  v.  Henderson,  31  Or.  48  (48  Pac.  790).  This  disposes  of  all  the 
questions  raised  on  the  appeal,  and,  finding  no  error  in  the  record,  the 
judgment  is  affirmed. 

Affirmed. 


RECEIPTS.  147 

DOLLIFF   v.   ROBBIXS. 
83  Minn.  498 ;   86  N.  W.  R.  772  ;   85  Am.  St.  R.  466.     1901. 

Brown,  J.  Action  for  damages  for  the  conversion  of  a  quantity  of 
wheat.  The  cause  was  tried  in  the  court  below  without  a  jury,  plain- 
tiff recovered,  and  defendants  appeal  from  an  order  denying  a  new- 
trial. 

The  facts  in  the  case  are  as  follows :  Between  September  19,  1899, 
and  May  15,  1900,  and  perhaps  for  some  time  prior  to  the  first-named 
date,  one  Walbridge  was  in  the  possession  of  and  operating  two  public 
warehouses  for  the  handling  and  storing  of  grain  for  others,  and  was 
engaged  in  buying  wheat  and  other  grain  on  his  own  account,  and  stor- 
ing the  same  in  said  warehouses.  Between  the  dates  stated  he  received 
for  storage  at  his  said  elevators  a  large  quantity  of  wheat  from  the 
farmers  in  the  vicinity  of  the  towns  in  which  the  elevators  were  located, 
for  which  he  issued  to  them  numerous  storage  tickets,  evidencing  the 
receipt  of  the  wheat,  and  the  kind  and  grade  thereof.  Two  of  the 
elevators  so  operated  by  Walbridge  were  located,  one  at  Belleview, 
in  Redwood  county,  and  one  at  Echo,  in  Yellow  Medicine  county. 
The  tickets  issued  for  the  wheat  so  received  by  him  were  in  the  usual 
form,  and  in  compliance  with  the  statutes  on  the  subject.  On  August 
30,  1899,  defendants  loaned  to  said  Walbridge  the  sum  of  $25,000,  and 
later  on,  and  at  different  times,  additional  sums,  aggregating  in  the 
neighbourhood  of  $35,000.  To  secure  the  payment  of  this  indebtedness, 
Walbridge  issued  and  delivered  to  defendants  four  certain  storage  re- 
ceipts, purporting  to  be  for  wheat  deposited  by  them  in  said  elevators, 
though  none  was  ever  in  fact  so  deposited  by  them.  From  time  to 
time,  between  the  dates  aforesaid,  Walbridge  shipped  out  of  his  said 
elevators  to  defendants,  who  are  commission  merchants  doing  business 
at  Minneapolis,  Minnesota,  all  the  wheat  he  had  received  in  store 
therein,  to  be  sold  by  them,  and  the  proceeds  applied  to  the  payment 
of  the  indebtedness  due  them.  Defendants  received  said  wheat,  sold 
it,  and  credited  the  proceeds  to  the  account  of  Walbridge.  The  wheat 
so  shipped  to  them  included  the  wheat  represented  by  the  tickets  issued 
and  delivered  to  the  farmers  aforesaid,  which  are  now  owned  by  the 
plaintiff.  Long  prior  to  the  commencement  of  this  action,  but  subse- 
quent to  the  shipment  and  delivery  of  the  wheat  to  defendants  the 
person  to  whom  the  storage  tickets  therefor  were  so  issued  by  Wal- 
bridge sold,  indorsed,  and  delivered  the  same  to  plaintiff  in  this  action. 
who  has  since  remained,  and  is  now,  the  owner  thereof.  On  July  6, 
1900,  plaintiff  produced  and  tendered  to  defendants  the  storage  receipts 
and  demanded  of  them  the  delivery  of  the  wheat  represented  thereby, 
which  demand  was  refused,  and  this  action  followed.  Three  questions 
are  presented  in  this  court :  (1)  Whether  the  indorsement  and  deliver 
of  the  storage  tickets  to  plaintiff  operated  as  an  assignment  of  the  cause 


148  WAREHOUSEMEN. 

of  action  for  the  conversion  of  the  wheat,  and,  in  this  immediate  con- 
nection, whether  plaintiff  in  fact  owned  the  tickets ;  (2)  whether  de- 
fendants are  liable  in  this  action  as  for  a  conversion  of  the  wheat ;  and 
(3)  if  they  are,  the  measure  of  plaintiff's  damages. 

1.  Appellants  contend  that  because  of  the  fact  that  the  wheat  repre- 
sented by  the  storage  tickets  held  by  plaintiff  had  been  shipped  out  of 
the  Walbridge  warehouses,  and  sold  and  converted  by  defendants, 
prior  to  the  transfer  of  the  tickets  to  him,  the  mere  indorsement  and 
delivery  of  the  tickets  did  not  operate  as  an  assignment  of  the  cause 
of  action  for  the  conversion.  We  are  unable  to  concur  in  this  conten- 
tion. The  tickets  here  in  question  were  issued  by  Walbridge  as  a  public 
warehouseman,  and  their  validity,  force,  and  effect  are  controlled  by  the 
general  statutes  of  the  state  on  the  subject.  By  statute,  such  tickets 
are  made  transferable  and  negotiable  by  indorsement  and  delivery. 
They  are  negotiable,  —  not,  perhaps,  to  the  full  extent  of  bills  of  ex- 
change and  promissory  notes,  but  to  the  extent  of  transferring  the  title 
to  the  property  to  an  indorsee  or  purchaser,  together  with  all  rights 
and  remedies  of  the  holder.  They  are  contracts,  in  every  sense  of  the 
term,  and  the  assignment  thereof  must,  in  the  nature  of  things,  carry 
with  it  all  rights  incident  thereto.  The  general  rule  of  law  with  refer- 
ence to  storage  tickets  of  this  character,  whether  issued  pursuant  to 
some  statutory  requirement  or  otherwise,  is  that  the  sale  of  the  tickets 
by  indorsement  and  delivery  operates  as  a  transfer  to  the  indorsee  or 
purchaser  of  the  legal  title  to  the  commodity  represented  thereby,  and 
the  warehouseman  becomes  liable  to  the  indorsee  to  the  same  extent 
as  to  the  original  holder.  And  in  case  of  such  indorsement  and  trans- 
fer the  indorsee  may  maintain  as  action  against  the  warehouseman  for 
injury  to  the  property,  whether  the  injury  occurred  before  or  after 
the  transfer  of  the  ticket.     Sargent  v.  Central,  15  111.  App.  553. 

This  court  has  on  several  occasions  given  utterance,  in  explicit  lan- 
guage, to  its  opinion  as  to  the  character  of  storage  tickets  issued  by 
public  warehousemen.  It  was  said  in  Thompson  v.  Thompson,  78  Minn. 
379,  385,  81  N.  W.  204,  543  (the  court  speaking  through  Justice  Lovely), 
that  — 

"The  tickets  designating  the  amount  of  grain,  charge  for  storage,  and  the 
ownership  of  the  property  pass  from  hand  to  hand  among  our  citizens,  in 
ordinary  commercial  transactions,  in  lieu  of  the  grain  itself,  and  are  sym- 
bolic both  of  the  title  which  actually  passes  by  such  transfers,  and  of 
the  money  value  which  the  property  is  worth  at  any  given  time." 

See,  also,  State  v.  Cowdery,  79  Minn.  94,  97,  81  N.  W.  750 ;  State 
v.  Loomis,  27  Minn.  521,  8  N.  W.  758.  So  there  can  be  no  doubt  that 
a  transfer  by  indorsement  and  delivery  of  storage  tickets  of  this  kind 
passes  to  the  indorsee  or  purchaser  not  only  the  title  to  the  wheat  evi- 
denced thereby,  but  all  rights  and  remedies  possessed  by  the  holder 
at  the  time  of  such  transfer,  as  well.     And  we  hold,  without  further 


RECEIPTS. 


remark,  that  the  transfer  of  the  storage  tickets  in  question  to  plaintiff 
conferred  upon  him  title  to  the  wheat,  and  every  right  and  remedy 
which  the  holders  thereof  possessed  at  the  time  of  the  transfer.  Th 
mere  fact  that  there  may  have  been  some  secret  agreement  or  under- 
standing between  the  ticket  holders  and  plaintiff  to  the  effect  that  the 
transfer  was  to  be  considered  as  conditional  is  immaterial,  and  there 
was  no  error  in  the  ruling  of  the  court  below  on  this  subject.  The 
tickets  were  in  fact  transferred  by  indorsement  and  delivery,  thus  con- 
veying to  plaintiff  the  legal  title  and  all  rights  incident  thereto  ;  and  tin- 
original  holders  could  not  thereafter,  as  to  these  defendants,  or  others 
who  might  deal  with  plaintiff  as  the  owner  of  the  tickets,  be  heard  to 
assert  or  claim  any  right  reserved  in  them  of  which  no  notice  was  given. 

2.  It  is  claimed  by  defendants  that  they  were,  in  the  matter  of  the 
sale  of  the  wheat  in  question,  the  agents  of  Walbridge,  the  warehouse- 
man, were  innocent  of  any  wrongdoing,  had  no  notice,  actual  or  con- 
structive, of  the  rights  of  the  ticket  holders  or  plaintiff,  and  are  not 
liable  for  the  conversion  of  the  wheat.  The  case  of  Leuthold  v.  Fair- 
child,  35  Minn.  99,  27  N.  W.  503,  28  N.  W.  218,  is  cited  in  support  of 
this  contention.  The  question  as  to  the  extent  of  the  liability  of  a 
commission  merchant  who  acts  as  an  agent  for  a  warehouseman  at  a 
distant  point  in  the  matter  of  receiving  and  disposing  of  grain  shipped 
to  him  by  such  warehouseman,  and  who  has  no  interest  in  the  sale  of 
the  grain  or  its  proceeds,  and  acts  purely  and  solely  as  an  agent,  is  not 
before  the  court  in  this  case.  The  Leuthold  case  is  not  in  point.  In 
that  case  the  defendant  in  fact  acted  in  the  capacity  of  agent,  and  there 
was  no  intentional  or  other  wrongful  act  on  his  part ;  nor  was  he  in 
any  way,  so  far  as  the  record  of  the  case  disclosed,  interested  in  the  prop- 
erty or  its  proceeds.  In  the  case  at  bar,  however,  defendants  were 
more  than  the  mere  agents  of  Walbridge.  They  held  an  indebtedness 
against  him  ;  had  taken  storage  tickets  from  him  purporting  to  be  for 
wheat  deposited  by  them  in  his  elevators,  though  no  wheat  was  by  them 
ever  so  deposited,  as  security  for  the  payment  of  that  indebtedness. 
They  had  in  fact  no  claim  to  the  wheat  in  question,  but  it  was  shipped 
to  them  by  Walbridge,  to  be  by  them  sold  and  applied  upon  his  account 
and  indebtedness.  They  were  interested  parties,  not  mere  agents. 
They  acted  in  their  own  interests,  and  the  principle  of  the  Leuthold 
case  has  no  application. 

[The  portion  of  the  opinion  relating  to  measure  and  amount  of  damages 
is  omitted.     The  judgment  is  affirmed  with  a  modification.] 


150  WAREHOUSEMEN. 

3.   LIEN. 

STEINMAN  v.  WILKINS. 

7  W.  &  S.  (Pa.)  466 ;   42  Am.  D.  254.     1844. 

The  plaintiff  brought  this  action  of  trover  against  the  defendant, 
who  is  a  warehouseman  in  Clarion  county,  on  the  Allegheny  river,  for 
the  supposed  conversion  of  certain  goods  retained  for  the  price  of  ware- 
house room,  being  part  of  a  larger  lot  which  was  stored  in  his  warehouse 
by  Hamilton  &  Humes,  of  whom  the  plaintiff  is  the  general  assignee. 
The  greater  part  had  been  delivered  to  Hamilton  &  Humes,  and  the 
residue  having  been  demanded  without  tender  of  any  charges,  M'Cal- 
mont  (President  of  the  Common  Pleas  of  Clarion  county)  directed  the 
jury  that  though  the  defendant  could  not  retain  for  the  general  balance 
of  his  account,  he  might  retain  for  all  the  charges  on  all  the  goods  for- 
warded to  him  at  the  same  time.  A  bill  of  exceptions  was  sealed,  and 
the  point  was  argued  on  a  writ  of  error  to  this  court. 

Gibson,  C.  J.  Though  a  plurality  of  the  barons  in  Rex  v.  Humphrey 
(1  M'Clell.  &  Y.  194-195)  dissented  from  the  dictum  of  Baron  Graham 
that  a  warehouseman  has  a  lien  for  a  general  balance,  like  a  wharfinger, 
I  do  not  understand  them  to  have  intimated  that  he  has  no  lien  at  all. 
They  spoke  of  it  as  an  entity,  and  seem  to  have  admitted  that  he  has 
a  specific  lien,  though  not  a  general  one.  There  is  a  well-known  distinc- 
tion between  a  commercial  lien,  which  is  the  creature  of  usage,  and  a 
common-law  lien,  which  is  the  creature  of  policy.  The  first  gives  a 
right  to  retain  for  a  balance  of  accounts ;  the  second,  for  services  per- 
formed in  relation  to  the  particular  property.  Commercial  or  general 
liens,  which  have  not  been  fastened  on  the  law  merchant  by  inveterate 
usage,  are  discountenanced  by  the  courts  as  encroachments  on  the  com- 
mon law ;  and  for  that  reason  it  would  be  impossible  to  maintain  the 
position  of  Baron  Graham,  for  there  is  no  evidence  of  usage  as  a  founda- 
tion for  it,  and  no  text-writer  has  treated  of  warehouse  room  as  a  sub- 
ject of  lien  in  any  shape.  In  Rex  v.  Humphrey,  it  was  involved  in  the 
discussion  only  incidentally ;  and  I  have  met  with  it  in  no  other  case. 
But  there  is  doubtless  a  specific  lien  provided  for  it  by  the  justice  of  the 
common  law.  From  the  case  of  a  chattel  bailed  to  acquire  additional 
value  by  the  labour  or  skill  of  an  artisan,  the  doctrine  of  specific  lien  has 
been  extended  to  almost  every  case  in  which  the  thing  has  been  im- 
proved by  the  agency  of  the  bailee.  Yet,  in  the  recent  case  of  Jackson 
v.  Cummings  (5  Mees.  &  Welsb.  342),  it  was  held  to  extend  no  further 
than  to  cases  in  which  the  bailee  has  directly  conferred  additional 
value  by  labour  or  skill,  or  indirectly  by  the  instrumentality  of  an  agent 
under  his  control ;  in  supposed  accordance  with  which  it  was  ruled 
that  the  agistment  of  cattle  gives  no  lien.  But  it  is  difficult  to  find  an 
argument  for  the  position  that  a  man  who  fits  an  ox  for  the  shambles, 


LIEN.  15] 

by  fatting  it  with  his  provender,  does  not  increase  its  intrinsic  value 
by  means  exclusively  within  his  control.     There  are  certainly  cases  of 
a  different  stamp,  particularly  Bevan  v.  Waters  (Mood.  &  Malk.  23 
in  which  a  trainer  was  allowed  to  retain  for  fitting  a  race-horse  for  the 
turf.     In  Jackson  v.  Cummings  we  see  the  expiring  embers  of  the  primi- 
tive notion  that  the  basis  of  the  lien  is  intrinsic  improvement  of  the 
thing  by  mechanical  means  ;    but  if  we  get  away  from  it  at  all,  what 
matters  it  how  the  additional  value  has  been  imparted,  or  whether  it 
has  been  attended  with  an  alteration  in  the  condition  of  the  thing  ? 
It  may  be  said  that  the  condition  of  a  fat  ox  is  not  a  permanent  one  ; 
but  neither  is  the  increased  value  of  a  mare  in  foal  permanent ;  yet  in 
Searfe  v.  Morgan  (4  Mees.  &  Welsh.  270),  the  owner  of  a  stallion  was 
allowed  to  have  a  lien  for  the  price  of  the  leap.     The  truth  is,  the  modern 
decisions  evince  a  struggle  of  the  judicial  mind  to  escape  from  the 
narrow  confines  of  the  earlier  precedents,  but  without  having  as  yet 
established  principles  adapted  to  the  current  transactions  and  conven- 
ience of  the  world.     Before  Chase  v.  Westmore  (5  Maule  &  Selw.  180), 
there  was  no  lien  even  for  work  done  under  a  special  agreement ;   now, 
it  is  indifferent  whether  the  price  has  been  fixed  or  not.     In  that  case, 
Lord  Ellenborough,  alluding  to  the  old  decisions,  said  that  if  they  "  are 
not  supported  by  law  and  reason,  the  convenience  of  mankind  certainly 
requires  that  our  decisions  should  not  be  governed  by  them"  ;  and  Chief 
Justice  Best  declared  in  Jacobs  v.  Latour  (5  Bingh.  132),  that  the  doc- 
trine of  lien  is  so  just  between  debtor  and  creditor,  that  it  cannot  be 
too  much  favoured.     In  Kirkham  v.  Shawcross  (6  T.  R.  17),  Lord  Ken- 
yon  said  it  had  been  the  wish  of  the  courts,  in  all  cases  and  at  all  times, 
to  carry  the  lien  of  the  common  law  as  far  as  possible ;   and  that  Lord 
Mansfield  also  thought  that  justice  required  it,  though  he  submitted 
when  rigid  rules  of  law  were  against  it.     What  rule  forbids  the  lien 
of  a  warehouseman  ?     Lord  Ellenborough  thought  in  Chase  v.  West- 
more,  that  every  case  of  the  sort  was  that  of  a  sale  of  services  performed 
in  relation  to  a  chattel,  and  to  be  paid  for,  as  in  the  case  of  any  other 
sale,  when  the  article  should  be  delivered.     Now,  a  sale  of  warehouse 
room  presents  a  case  which  is  bound  by  no  preestablished  rule  or  an- 
alogy ;  and,  on  the  ground  of  principle,  it  is  not  easy  to  discover  why  the 
warehouseman  should  not  have  the  same  lien  for  the  price  of  future 
delivery  and  intermediate  care  that  a  carrier  has.     The  one  delivers 
at  a  different  time,  the  other  at  a  different  place  ;  the  one  after  custody 
in  a  warehouse,  the  other  in  a  vehicle ;    and  that  is  all  the  difference. 
True,  the  measure  of  the  carrier's  responsibility  is  greater;    but  that, 
though  a  consideration  to  influence  the  quantum  of  his  compensation, 
is  not  a  consideration  to  increase  the  number  of  his  securities  for  it. 
His  lien  does  not  stand  on  that.     He  is  bound  in  England  by  the  cus- 
tom of  the  realm  to  carry  for  all  employers  at  established  prices  ;    I  nit 
it  is  by  no  means  certain  that  our  ancestors  brought  the  principle  with 
them  from  the  parent  country  as  one  suited  to  their  condition  in  a  wil- 


152  WAREHOUSEMEN. 

derness.  We  have  no  trace  of  an  action  for  refusing  to  carry  ;  and  it  is 
notorious  that  the  wagoners,  who  were  formerly  the  carriers  between 
Philadelphia  and  Pittsburgh,  frequently  refused  to  load  at  the  current 
price.  Now,  neither  the  carrier  nor  the  warehouseman  adds  a  particle 
to  the  intrinsic  value  of  the  thing.  The  one  delivers  at  the  place,  and 
the  other  at  the  time,  that  suits  the  interest  or  convenience  of  the  owner 
of  it,  in  whose  estimation  it  receives  an  increase  of  its  relative  value 
from  the  services  rendered  in  respect  of  it,  else  he  would  not  have 
undertaken  to  pay  for  them.  I  take  it,  then,  that,  in  regard  to  lien,  a 
warehouseman  stands  on  a  footing  with  a  carrier,  whom  in  this  country 
he  closely  resembles. 

Now,  it  is  clear  from  Sodergren  v.  Flight  &  Jennings,  cited  6  East, 
662,  that  where  the  ownership  is  entire  in  the  consignee,  or  a  purchaser 
from  him,  each  parcel  of  the  goods  is  bound,  not  only  for  its  particular 
proportion,  but  for  the  whole,  provided  the  whole  has  been  carried  under 
one  contract ;  it  is  otherwise  where  to  charge  a  part  for  the  whole  would 
subject  a  purchaser  to  answer  for  the  goods  of  another,  delivered  by 
the  bailee  with  knowledge  of  the  circumstances.  In  this  instance,  the 
entire  interest  was  in  Hamilton  &  Humes,  in  whose  right  the  plaintiff 
sues ;  and  the  principle  laid  down  by  the  presiding  judge  was  substan- 
tially right.  On  the  other  hand,  the  full  benefit  of  it  was  not  given  to 
the  defendant  in  charging  that  the  demand  and  refusal  was  evidence  of 
conversion.  There  was  no  evidence  of  tender  to  make  the  detention 
wrongful ;  and  the  defendant  would  have  had  cause  to  complain,  had 
the  verdict  been  against  him,  of  the  direction  to  deduct  the  entire  price 
of  the  storage  from  the  value  of  the  articles  returned,  and  to  find  for  the 
plaintiff  a  sum  equal  to  the  difference.  But  there  has  been  no  error 
which  the  plaintiff  can  assign. 

Judgment  affirmed. 


AS    BAILEES. 


IV.    WHARFINGERS. 

1.    AS  BAILEES. 

RODGERS  v.   STOPHEL. 
32  Pa.  St.  Ill ;   72  Am.  D.  775.     1858. 

This  was  an  action  on  the  case  by  Thomas  Stophel  against  Henry 
Rodgers,  for  negligence  in  taking  care  of  a  quantity  of  lumber  intrusted 
to  him,  as  a  wharfinger,  whereby  it  was  lost  to  the  plaintiff. 

Henry  Rodgers,  the  defendant,  was  the  owner  of  a  piece  of  ground 
adjoining  the  Pennsylvania  Canal,  in  the  village  of  Nineveh,  Indiana 
county.  Persons  in  the  neighbourhood  had  been  in  the  habit  of  using 
it  as  a  place  of  deposit  for  lumber,  intended  to  be  shipped  by  the  canal. 
The  defendant,  desiring  to  be  remunerated  for  the  use  of  his  ground, 
gave  notice  that  he  would  charge  at  the  rate  of  10  cents  for  every  1000 
feet  of  lumber  deposited  there,  for  the  use  of  the  wharf. 

In  the  summer  of  1854,  the  plaintiff  sent  to  the  defendant's  wharf, 
about  1200  feet  of  lumber,  for  which  he  agreed  to  pay  the  defendant  at 
the  rate  of  10  cents  per  1000  feet.  This  lumber  was  subsequently  taken 
away  by  one  Ashbaugh,  without  the  plaintiff's  authority,  and  was  lost 
to  him. 

On  the  trial,  the  plaintiff  offered  to  prove,  by  George  Dill,  that  in 
1853  the  defendant  took  lumber  from  him,  as  a  wharfinger,  on  the  same 
wharf,  and  received  compensation  for  it;  he  also  offered  to  prove,  by 
John  W.  Duncan,  that  in  1851,  as  an  inducement  to  place  his  lumber 
on  the  defendant's  wharf,  the  defendant  said  to  him,  that  if  he  delivered 
it  upon  another  wharf  where  there  was  no  charge  for  wharfage,  he 
would  have  it  stolen;  but,  if  he  put  it  upon  the  defendant's  wharf,  it 
would  be  safe. 

The  defendant  objected  to  the  admission  of  this  evidence ;  but  the 
court  admitted  it,  and  sealed  a  bill  of  exceptions. 

[The  instructions  are  omitted.     There  was  judgment  for  plaintiff.] 

Church,  J.  The  plaintiff  below  sought  to  charge  the  defendant 
there  as  bailee.  The  character  of  the  bailment,  if  any,  was  a  question 
in  issue  before  the  court  on  the  trial. 

[A  portion  of  the  opinion  relating  to  sufficiency  of  objections  to  evi- 
dence is  omitted.] 

A  wharfinger,  then,  is  one  who  keeps  a  wharf  for  receiving  goods  for 
hire.  And  his  responsibility  begins  when  the  goods  are  delivered  at, 
or  rather  on,  the  wharf,  and  he  has  either  expressly,  or  by  implication, 
so  received  them.     In  Fuller  v.  Bradley,  1  Casey,  120,  it  is  said,  that 


154  WHARFINGERS. 

one  who  holds  himself  forth  to  the  public  to  carry  for  hire,  is  a  common 
carrier,  as  much  the  first  as  any  subsequent  trip,  and  that  it  is  for  the 
jury  to  say  from  the  whole  evidence  in  the  case,  whether  he  is  a  common 
carrier,  or  a  carrier  by  the  job,  hiring  for  the  trip  only.  So,  it  has  been 
held,  that  any  man  undertaking  to  carry  the  goods  of  all  persons  indif- 
ferently and  generally,  is  a  common  carrier :  Gordon  v.  Hutchison, 
1  W.  &  S.  285  [301].  The  Chief  Justice,  in  the  case  just  cited,  uses  this 
language :  "  A  wagoner,  who  carries  goods  for  hire,  is  a  common  car- 
rier, whether  this  be  his  principal  or  only  occasional  business."  Keep- 
ing these  general  principles  in  view,  and  not  forgetting  they  are  held 
applicable  to  common  carriers,  whose  responsibility  is  greater  than 
wharfingers ;  and  it  will  be  readily  perceived  that  the  exception  taken 
below,  to  the  competency  or  admissibility  of  evidence,  cannot  be  sus- 
tained. The  mere  contract  of  Rodgers  with  the  witness  would  alone, 
perhaps,  be  irrelevant  and  inadmissible ;  but  the  testimony  taken  to- 
gether goes  much  farther.  And,  having  but  one  bill  of  exceptions, 
the  testimony  of  both  witnesses  must  be  treated  as  one  offer,  and  the 
objection  a  general  one ;  hence,  if  any  portion  of  their  testimony  be 
competent  for  any  purpose,  a  special  objection  cannot  avail  the  party 
now:  Harmet  v.  Dundass,  4  Barr,  178,  181  ;  Fitler  v.  Eyre,  2  Harris,  392. 
The  witness,  Dill,  proves  that  the  wharf  had  been  previously  used 
by  the  public,  as  we  would  understand,  without  objection  or  charge  by 
the  owner;  but,  previous  to  the  occurrence  in  question,  the  latter  in- 
formed him  he  would  not  suffer  it  so  any  longer,  but  should  charge  a 
specified  sum  per  thousand  feet.  In  legal  parlance,  this  compensation 
is  called  wharfage.  But  Duncan  testifies  more.  He  says  that  Rodgers 
invited  him  to  use  his  wharf,  and  informed  him  of  the  rate  of  compen- 
sation he  charged.  The  witness  demurred  to  this,  and  told  Rodgers 
he  could  do  better,  by  delivering  his  lumber  at  Barber's,  a  short  distance 
above,  where  it  was  free  ground,  as  it  is  said.  Rodgers  replied,  if  he 
did  so,  it  would  likely  be  stolen ;  but,  if  put  upon  my  wharf,  it  will  be 
safe.  This,  certainly,  afforded  some  evidence  of  the  relation  he  stood 
in  to  those  using  his  wharf.  It  was  not  the  offer  of  any  special  engage- 
ment or  undertaking  with  the  witness  particularly,  but  rather,  in  the 
language  of  the  authorities  cited,  the  holding  himself  forth  as  a  wharf- 
inger receiving  lumber  on  his  wharf,  for  hire,  at  a  given  rate,  from  all 
persons,  indifferently  and  generally.  The  value  or  strength  of  the  testi- 
mony is  not  the  question ;  but,  could  it  afford  any  rational  inference  in 
connection  with  the  other  evidence  in  the  cause,  that  defendant  kept 
a  public  wharf,  and  offered  himself  to  the  public  as  a  wharfinger,  pre- 
vious to  the  time  of  receiving  there  the  plaintiff's  lumber  ?  We  think 
it  could,  and  therefore  the  court  below  were  right  in  overruling  the 
objection  to  it. 

The  two  remaining  errors  assigned,  embrace  but  one  and  the  same 
principle.  And  the  discussion  of  the  first,  and  the  answer  already  given, 
is  a  substantial  overruling  of  these.     Whether  there  be  any  evidence, 


DUTIES.  155 

is  for  the  court;  but  whether  enough,  was  here  properly  submitted  to 
the  jury.  If  there  be  any  evidence  upon  the  issue,  however  slight,  it 
will,  in  general,  not  be  deemed  error  to  leave  it  with  the  jury,  Inman 
v.  Kutz,  10  Watts,  101,  and  many  other  cases.  No  specific  instruction 
being  demanded  of  the  court,  nor  special  exception  taken  at  the  time, 
the  whole  charge  should  be  taken  together.  The  jury  were  distinctly 
instructed,  in  immediate  connection  with  that  part  assigned  for  error, 
that  if  they  found  the  contract  or  relation  of  the  parties  only  extended 
to  the  right  to  occupy  the  ground,  then  defendant  was  not  liable.  What 
follows  of  the  charge  that  embraced  in  the  specification  here,  is  but 
little,  if  anything,  more  than  a  legal  definition  of  the  term  wharfinger. 
If  they  found  him  such,  then  the  law  implied  the  rest,  unless  his  lia- 
bility was  limited  by  the  evidence.  We  perceive  no  material  error  in 
this.  There  was  evidence  (the  sufficiency  of  it  we  have  seen  is  imma- 
terial now  here),  from  which  it  might  be  inferred,  that  defendant  was 
a  bailee  for  hire,  and  by  general  engagement  liable  to  extend  over  plain- 
tiff's lumber,  like  that  of  others,  ordinary  care  and  protection.  What 
is  meant  by  ordinary  care,  was  properly  explained  and  defined.  It  is 
such  as  the  generality  of  mankind  use  in  their  own  affairs.  This  is 
required  when  the  contract  of  bailment,  express  or  implied,  is  recipro- 
cally beneficial.  This  kind  of  care  and  skill  is  by  law  required  of  all 
persons  employed  in  any  business  :  1  W.  &  S.  60.  We  see  no  error  in 
the  part  of  the  charge  brought  to  our  notice,  nor  in  the  exception  to 

the  evidence. 

Judgment  affirmed. 


2.   DUTIES. 

CHAPMAN  v.   STATE. 

104  Cal.  690 ;   38  Pac.  R.  457 ;   43  Am.  St.  R.  158.     1894. 

De  Haven,  J.  Action  for  damages  brought  by  the  plaintiff  as 
assignee  of  the  firm  of  "  John  Rosenf eld's  Sons."  In  the  superior  court 
a  demurrer  to  the  complaint  was  sustained,  and  judgment  thereupon 
rendered  in  favour  of  the  defendant.  The  complaint,  omitting  merely 
formal  and  immaterial  averments,  may  as  against  a  general  demurrer 
be  construed  as  alleging,  in  substance,  that  on  August  10,  1891,  the 
defendant,  in  consideration  of  wharfage  and  dockage  charges,  paid  to 
its  officers,  the  state  board  of  harbour  commissioners,  received  upon  one 
of  its  public  wharves,  situate  in  the  city  of  San  Francisco,  and  under 
the  jurisdiction  and  control  of  the  state  board  of  harbour  commissioners, 
about  one  hundred  and  thirty  tons  of  coal  belonging  to  the  assignors  of 
plaintiff,  and  to  be  removed  by  them  from  such  wharf ;  and  that  on 
said  day  a  large  portion  of  the  wharf  on  which  this  coal  was  placed  broke 


156  WHARFINGERS. 

and  gave  way  "  by  reason  of  the  negligence,  omission,  and  carelessness 
of  defendant,  its  officers,  and  agents  ...  in  failing  and  neglecting  to 
keep  said  wharf  in  good  and  sound  condition  and  repair"  ;  and  all  the 
coal  of  plaintiff's  assignors  then  on  the  wharf  was  sunk  in  the  bay  of 
San  Francisco,  and  became  a  total  loss,  to  their  damage  in  the  sum  of 
twelve  hundred  and  sixty-six  dollars  and  forty-seven  cents,  the  alleged 
value  of  said  coal. 

The  complaint  further  alleges  that  a  claim  for  the  damages  so  sus- 
tained was  duly  presented  to  the  state  board  of  examiners  for  allow- 
ance, and  the  same  was  by  said  board  rejected  on  September  13,  1893. 
The  prayer  of  the  complaint  is  for  a  judgment  against  defendant  for 
the  sum  of  twelve  hundred  and  sixty-six  dollars  and  forty-seven  cents, 
and  interest  thereon  from  August  10,  1891.  The  demurrer  was  upon 
the  general  ground  that  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action.  And  also  set  forth,  as  a  special  ground, 
that  "  the  said  complaint  shows  upon  its  face  that  the  claim  against  the 
state,  which  is  the  subject-matter  of  the  action  of  plaintiff,  was  duly  and 
legally  presented  to  the  state  board  of  examiners  of  this  state  prior  to 
the  commencement  of  this  action  for  allowance,  and  was  by  said  board 
rejected  and  disallowed,  and  the  said  action  of  said  board  in  the  prem- 
ises has  never  been  reversed,  but  remains  in  full  force  and  effect." 

1.  It  is  claimed  by  the  plaintiff  that  he  is  entitled  to  maintain  this 
action  under  the  permission  and  authority  given  by  the  act  authoris- 
ing suits  against  the  state,  approved  February  28,  1893  (Stats.  1893, 
p.  57).  The  first  section  of  this  act  provides  as  follows  :  "All  persons 
who  have,  or  shall  hereafter  have,  claims  on  contract  or  for  negligence 
against  the  state,  not  allowed  by  the  state  board  of  examiners,  are 
hereby  authorised,  on  the  terms  and  conditions  herein  contained,  to 
bring  suit  thereon  against  the  state  in  any  of  the  courts  of  this  state  of 
competent  jurisdiction,  and  prosecute  the  same  to  final  judgment." 

The  cause  of  action  set  forth  in  the  complaint  arose  prior  to  the  pas- 
sage of  the  act  just  referred  to,  and  it  is  argued  by  the  attorney-general 
that  at  the  time  when  the  coal  belonging  to  the  assignors  of  the  plain- 
tiff was  lost,  the  state  was  not  liable  for  the  damage  occasioned  by  said 
loss,  and  growing  out  of  the  alleged  negligence  of  its  officers  in  charge 
of  the  wharf  mentioned  in  the  complaint ;  and  that  the  act  should  not  be 
construed  as  intended  to  create  any  liability  against  the  state  for  such 
past  negligence.  It  is  well  settled  that,  in  the  absence  of  a  statute  vol- 
untarily assuming  such  liability,  the  state  is  not  liable  in  damages 
for  the  negligent  acts  of  its  officers  while  engaged  in  discharging  ordi- 
nary official  duties  pertaining  to  the  administration  of  the  government 
of  the  state.  (Bourn  v.  Hart,  93  Cal.  321,  27  Am.  St.  Rep.  203; 
Story  on  Agency,  §  319.) 

It  is  also  true  that  under  section  31  of  article  IV  of  the  constitution 
of  this  state,  which  forbids  the  legislature  from  making  any  gift  of 
public  money  or  other  thing  of  value  to  any  person,  the  legislature  has 


DUTIES.  157 

no  power  to  create  a  liability  against  the  state  for  any  such  past  act  of 
negligence  upon  the  part  of  its  officers. 

If,  therefore,  the  present  action,  based  as  it  is  upon  a  loss  accruing 
before  the  enactment  of  the  statute  of  February  28,  1893,  authorisii 
suits  against  the  state,  is  to  be  regarded  as  one  for  the  recovery  of 
damages  arising  out  of  the  negligence  of  the  officers  of  the  state  in  the 
discharge  of  a  strictly  governmental  duty,  it  cannot  be  sustained  ; 
but  we  are  clearly  of  the  opinion  that  the  cause  of  action  alleged  in  the 
complaint  is  not  of  this  character.  It  is  not  founded  upon  negligence 
constituting  a  tort,  pure  and  simple  and  unrelated  to  any  contract,  but 
is  substantially  an  action  for  damages  on  account  of  the  alleged  breach 
of  a  contract. 

The  facts  stated  in  the  complaint  show  that  the  defendant,  in  consid- 
eration of  wharfage  paid  to  it,  received  upon  one  of  its  public  wharves 
the  coal  belonging  to  plaintiff's  assignors,  and  to  be  delivered  to  them 
on  such  wharf  for  removal  therefrom.  A  wharfinger  is  one  who  for 
hire  receives  merchandise  on  his  wharf,  either  for  the  purpose  of  for- 
warding or  for  delivery  to  the  consignee  on  such  wharf,  and  the  matters 
alleged  in  the  complaint  show  a  contract  of  the  latter  character,  and  the 
state  is  bound  thereby  to  the  same  extent  as  a  private  person  engaged 
in  conducting  the  business  of  a  wharfinger  would  be  under  a  similar 
contract.  The  principle  that  a  state  is  bound  by  the  same  rules  as  an 
individual  in  measuring  its  liability  on  a  contract  is  well  expressed  by 
Allen,  J.,  in  his  concurring  opinion  in  the  case  of  People  v.  Stephens, 
71  N.  Y.  549,  in  which  he  said:  "The  state  in  all  its  contracts  and 
dealings  with  individuals  must  be  adjudged  and  abide  by  the  rules  which 
govern  in  determining  the  rights  of  private  citizens  contracting  and  deal- 
ing with  each  other.  There  is  not  one  law  for  the  sovereign,  and  an- 
other for  the  subject.  But  when  the  sovereign  engages  in  business  and 
the  conduct  of  business  enterprises  and  contracts  with  individuals, 
whenever  the  contract  in  any  form  comes  before  the  courts,  the  rights 
and  obligations  of  the  contracting  parties  must  be  adjusted  upon  the 
same  principle  as  if  both  contracting  parties  were  private  persons.  Both 
stand  upon  equality  before  the  law,  and  the  sovereign  is  merged  in  the 
dealer,  contractor,  and  suitor."  (See,  also,  Carr  v.  State,  127  Ind.  204, 
22  Am.  St.  Rep.  624.) 

What,  then,  was  the  nature  and  extent  of  the  obligation  assumed  by 
the  state  when,  in  consideration  of  the  wharfage  paid  by  them,  it  re- 
ceived the  coal  of  plaintiff's  assignors  upon  its  wharf  ? 

"  The  wharfinger  is  bound  to  return  or  deliver  the  goods  according 
to  his  contract."  (Edwards  on  Bailments,  3d  ed.,  §  362.)  A  wharf- 
inger is  impliedly  bound  by  his  contract  as  such  to  exercise  ordinal,. 
care  for  the  preservation  and  safety  of  property  entrusted  to  him 
(Edwards  on  Bailments,  3d  ed.,  §  359),  and  this  imposes  upon  him 
the  duty  to  exercise  ordinary  care  to  ascertain  the  condition  of  his 
wharf,  that  he  may  know  whether  it  is  reasonably  safe  for  the  purposes 


158  WHARFINGERS. 

for  which  he  hires  it ;  and,  if  merchandise  is  received  by  him  upon  a 
wharf  which  is  unsafe,  and  is  thereby  lost,  so  that  he  cannot  deliver  it 
according  to  his  contract,  the  wharfinger  is  liable  therefor  if  ordinary 
care  would  have  enabled  him  to  know  the  condition  of  his  wharf ;  and 
such  negligence  on  his  part  will  be  treated  as  a  failure  to  exercise  ordi- 
nary care  for  the  safety  of  the  property  entrusted  to  him.  This  negli- 
gence, however,  and  the  consequent  loss  of  the  goods  entrusted  to  him, 
would  be  a  breach  of  the  terms  of  his  contract,  and  his  liability  therefor 
could  have  been  enforced  at  common  law  by  an  action  of  assumpsit 
(1  Chitty  on  Pleading,  114;  Baker  v.  Liscoe,  7  Term.  Rep.  171); 
and  under  our  practice  the  owner  or  consignee  may  sue  upon  the  con- 
tract for  the  damages  sustained  by  reason  of  such  negligence.  "The 
wharfinger's  responsibility  begins  as  soon  as  he  acquires  the  custody  of 
the  goods,  and  ends  when  he  has  fulfilled  his  express  or  implied  contract 
with  respect  to  both."     (Edwards  on  Bailments,  §  357.) 

And  the  supreme  court  of  Washington  in  the  case  of  Oregon  Improve- 
ment Co.  v.  Seattle  Gaslight  Co.,  4  Wash.  634,  in  passing  upon  the 
question  of  the  liability  of  a  wharfinger  upon  his  contract  as  such,  by 
reason  of  his  wharf  giving  way  and  precipitating  into  the  waters  beneath, 
a  quantity  of  shale  which  had  been  received  thereon,  said :  "  This  was 
a  contract  of  bailment.  The  contract  was  proven,  the  loss  was  proven, 
and  the  negligence  of  respondent  was  proven,  and  the  measure  of  the 
damages  is  the  value  of  the  shale." 

We  are  entirely  satisfied  that  plaintiff's  cause  of  action,  as  alleged  in 
the  complaint,  arises  upon  contract,  and  that  the  liability  of  the  state 
accrued  at  the  time  of  its  breach  ;  that  is,  when  the  coal  was  lost  through 
the  negligence  of  the  officers  in  charge  of  the  state's  wharf,  although 
there  was  then  no  law  giving  to  the  plaintiff's  assignors  the  right  to  sue 
the  state  therefor.  At  that  time  the  only  remedy  given  the  citizen  to 
enforce  the  contract  liabilities  of  the  state,  was  to  present  the  claim  aris- 
ing thereon  to  the  state  board  of  examiners  for  allowance,  or  to  appeal 
to  the  legislature  for  an  appropriation  to  pay  the  same  ;  but  the  right  to 
sue  the  state  has  since  been  given  by  the  act  of  February  28,  1893,  and 
in  so  far  as  that  act  gives  the  right  to  sue  the  state  upon  its  contracts, 
the  legislature  did  not  create  any  liability  or  cause  of  action  against  the 
state  where  none  existed  before.  The  state  was  always  liable  upon  its 
contracts,  and  the  act  just  referred  to  merely  gave  an  additional  remedy 
for  the  enforcement  of  such  liability,  and  it  is  not,  even  as  applied  to 
prior  contracts,  in  conflict  with  any  provision  of  the  constitution. 

"The  fact  that  the  state  is  not  subject  to  an  action  in  behalf  of  a 
citizen  does  not  establish  that  he  has  no  claim  against  the  state,  or  that 
no  liability  exists  from  the  state  to  him.  It  only  shows  that  he  cannot 
enforce  against  the  state  his  claim,  and  make  it  answer  in  a  court  of 
law  for  its  liability.  What  is  made  out  by  this  objection  is  not  that 
there  is  no  liability  and  no  claim,  but  that  there  is  no  remedy."  (Cos- 
ter v.  Mayor  of  Albany,  43  N.  Y.  407.) 


DUTIES.  159 

2.  It  is  further  argued  in  behalf  of  the  state  that  the  rejection  of 
plaintiff's  claim  by  the  state  board  of  examiners  has  the  effect  of  a  judg- 
ment, and  constitutes  a  bar  to  this  action ;  and  in  support  of  this 
contention  the  case  of  Cahill  v.  Colgan  (Cal.,  Nov.  22,  1892),  31  Pac. 
Rep.  614,  is  cited.  That  case  is  not  authority  for  such  a  proposition. 
The  court  there  decided  that  when  a  claim  had  been  presented  to  tin 
state  board  of  examiners  and  approved,  and  an  appropriation  made 
by  the  legislature  to  pay  it,  the  approval  by  the  board  of  examiners  was 
conclusive  upon  the  controller  as  to  the  value  of  the  services  rendered 
by  the  claimant,  and  the  amount  to  which  he  was  entitled ;  and  the 
general  language  found  in  the  opinion  in  that  case,  as  to  the  conclusive 
effect  of  the  approval  or  rejection  of  a  claim  by  the  state  board  of  exam- 
iners, must  be  construed  with  reference  to  the  particular  facts  then  be- 
fore the  court.  But  a  sufficient  answer  to  the  contention  of  the  defend- 
ant on  this  point  is  that  the  act,  under  the  authority  of  which  this 
suit  is  brought,  contemplates  that  claims  against  the  state  shall  first 
be  presented  to  the  state  board  of  examiners  for  allowance,  and,  as  we 
construe  its  language,  it  is  only  on  claims  so  presented,  and  "  not  allowed 
by  the  state  board  of  examiners,"  that  the  state  gives  its  consent  to  be 
sued;  and  certainly  as  to  claims  which  have  been  approved  by  that 
board  there  could  be  no  necessity  for  such  a  remedy. 

Judgment  reversed,  with  directions  to  overrule  the  demurrer  to  the 
complaint. 


WILLEY  v.   ALLEGHENY  CITY. 

118  Pa.  St.  490  ;    12  Atl.  R.  453 ;   4  Am.  St.  R.  608.     1888. 

[Action  to  recover  damages  for  loss  of  two  rafts  of  lumber  which,  in 
time  of  flood  in  the  river,  had  been  moored  to  a  public  wharf,  maintained 
by  the  defendant  city,  and  for  the  use  of  which  tolls  were  charged  by  it. 
The  plaintiff  appeals  from  a  judgment  on  a  verdict  for  defendant.] 

Mr.  Justice  Williams.  The  important  question  in  this  case  is 
that  raised  by  the  third,  fourth,  fifth,  and  sixth  assignments  of  error. 
The  action  was  based  upon  the  allegation  that  the  city  had  failed  to  pro- 
vide its  wharf  with  fastenings  sufficient  in  number  and  strength  to  secure 
boats  and  rafts  from  being  swept  away  by  floods. 

*  The  second  point  submitted  by  the  plaintiff  to  the  court  below  asked 
an  instruction  to  the  jury  that  inasmuch  as  the  city  of  Allgeheny  was 
in  "possession  of  the  wharf  at  which  plaintiff's  rafts  were  lost,  and 
receiving  tolls  or  wharfage  for  its  use,  it  was  held  to  the  utmost  care  of 
said  wharf,  and  it  was  a  violation  of  defendant's  duty  to  permitsaid 
wharf  to  get  out  of  repair,  or  neglect  to  provide  means  of  fastening  for 
the  moorings  of  rafts  and  other  craft  at  said  wharf ;  and  if  the  jury  be- 


\ 


160  WHARFINGERS. 

lieve  from  the  evidence  that  plaintiff's  loss  on  or  about  June  9,  1881, 
was  occasioned  in  consequence  of  said  neglect  of  duty  on  part  of  the 
defendant  city,  then  their  verdict  should  be  for  the  plaintiff."  The 
court  affirmed  this  point,  adding  this  important  qualification :  "  That 
'  utmost  care '  must  be  understood  to  mean  only  reasonable  and  proper 
care  in  view  of  the  safe  mooring  of  floats  and  rafts  under  ordinary  cir- 
cumstances and  floods  which  could  and  should  have  been  anticipated 
by  the  exercise  of  reasonable  care  and  foresight."  This  answer 
taken  as  a  whole  affirms  the  proposition  that  the  city  was  bound  to  the 
exercise  of  the  utmost  care,  and  then  defines  the  word  "utmost"  as 
meaning  reasonable,  and  the  measure  of  care  required  as  "only  reason- 
able and  proper  care  .  .  .  under  ordinary  circumstances."  It  left 
the  jury  without  any  clear  and  adequate  declaration  of  the  rule  they 
were  expected  to  apply.  It  becomes  necessary,  therefore,  to  examine 
briefly  into  the  relation  of  the  parties  to  each  other  and  the  duty  rest- 
ing on  the  city  as  the  owner  of  the  wharf. 

Whoever  may  be  the  owner  of  a  public  wharf,  whether  a  private 
person,  a  corporation,  or  a  municipality,  the  duties  of  the  owner  and  the 
rights  of  the  public  are  the  same.  The  owner  has  the  exclusive  control 
over  the  property  and  its  management.  The  public  are  invited  to  use 
it  upon  the  payment  of  the  established  rates  of  toll  or  wharfage,  and 
must  trust  to  the  security  and  sufficiency  of  the  appliances  afforded 
them.  The  wharf  of  the  defendant  is  upon  the  bank  of  the  Allegheny 
River,  which  is  subject  to  great  changes  in  the  volume  of  its  waters 
and  the  force  of  the  current,  by  reason  of  floods.  The  navigation  is 
almost  entirely  descending  and  is  by  rafts  and  heavily  loaded  boats 
that  come  down  the  river  upon  the  high  water.  The  advantages 
and  the  perils  of  floods  enter  into  the  calculations  of  both  the 
navigator  of  the  stream  and  the  owner  of  the  wharf  upon  its 
banks.  The  craft  comes  to  the  market  which  the.  city  of  Allegheny 
affords,  upon  the  floods,  and  must  depend  upon  the  wharf  for  security 
against  the  swollen  current  while  seeking  a  purchaser.  It  is  the  duty 
of  the  owner  of  the  wharf  to  make  suitable  preparations  for  the  safety 
of  those  who  moor  their  rafts  and  boats  along  its  side.  To  undertake 
a  duty  for  which  one  is  incompetent  or  is  not  adequately  provided  is 
in  itself  negligence. 

When  the  public  are  invited  to  the  wharf  of  the  defendant  and  charged 
for  the  security  offered  them,  they  have  a  right  to  expect  and  to  depend 
upon  the  provision  by  the  city  of  such  appliances  for  securing  and  hold- 
ing their  boats  and  rafts  against  the  current  as  are  sufficient  for  that 
purpose.  The  wharfinger  who  receives  and  stores  the  goods  of  his  cus- 
tomers in  his  warehouse  is  liable  only  for  ordinary  care,  for  the  goods 
in  store  are  exposed  only  to  the  ordinary  perils  of  storage  on  the  land ; 
but  rafts  and  boats  moored  at  the  defendant's  wharf  are  exposed  to 
the  dangers  of  the  stream.  The  violence  of  the  winds  and  the  floods  are 
among  these  dangers.     The  raftsman  and  the  boatman  seek  security 


DUTIES.  Id 

against  these  at  the  wharf.  The  perils  are  not  ordinary,  but  they  tire 
great;  and  ordinary  care,  or  "reasonable  care  under  ordinary  circum- 
stances," is  not  enough.  It  is  not  proportioned  to  the  dangers  of  the 
navigation  or  to  the  extent  of  the  calamity  in  case  of  failure  in  tin- 
undertaking  to  hold  securely.  In  the  case  of  the  City  of  Pittsburgh 
Grier,  22  Pa.  54,  a  similar  question  was  raised,  and  this  court  said  : 
"  The  interests  of  commerce  imperatively  require  that  the  place  to  which 
vessels  are  invited  to  come  should  be  in  a  safe  condition"  ;  but  no  more 
exact  definition  of  the  measure  of  care  required  was  attempted.  In 
the  recent  case  of  the  City  of  Allegheny  v.  Campbell,  107  Pa.  530,  the 
court  below  affirmed  a  point  asking  an  instruction  to  the  jury  that  "the 
city  was  bound  to  the  utmost  care"  in  maintaining  its  wharf  in  a  safe 
condition  for  public  use.  This  instruction  was  assigned  for  error  as  a 
too  rigorous  statement  of  the  rule,  but  it  was  affirmed  by  this  court. 
Justice  Paxson  said,  in  delivering  the  opinion  of  the  court :  "  The  plain- 
tiffs certainly  have  a  right  to  look  to  the  city  for  redress ;  for  it  was 
upon  the  city  the  duty  was  devolved  of  keeping  the  wharf  in  a  safe 
condition"  ;  but  the  expression  "utmost  care"  was  not  commented  on. 
In  the  case  of  the  Mersey  Docks  &  Harbour  Trustees  v.  Gibbs,  decided 
in  the  House  of  Lords,  in  1865,  the  plaintiff's  ship  was  injured  on  a 
bank  of  mud  at  the  mouth  of  the  docks.  The  trustees  denied  their 
liability,  as  the  obstruction  was  not  known  to  them,  and  asserted  that 
they  were  liable  only  for  the  failure  to  exercise  ordinary  care.  But  it 
was  held  the  company  was  liable  for  the  injury  caused  by  the  accumula- 
tion of  mud  at  the  docks,  whether  they  knew  of  the  accumulation  or 
not,  if,  by  their  servants,  they  had  the  means  of  knowing,  and  were 
negligently  ignorant  of  it.  An  analogous  principle  is  asserted  in  the  cases 
in  which  the  duty  of  a  ship  or  dock  company,  to  provide  safe  access  to 
their  ships  for  passengers,  has  come  under  examination  ;  and  such  com- 
panies have  been  held  to  very  strict  liability  for  any  defect  or  insuffi- 
ciency in  the  appliances  used  for  this  purpose:  Wh.  Neg.,  par.  823; 
John*.  Bacon,  L.  R.  5  C.  P.  437;  Wendell  v.  Baxter,  12  Gray,  494. 
The  docks  and  gangways  are  held  to  be  highways  so  far  as  to  give  to 
the  public  an  unobstructed  use  of  them  as  a  means  of  access  to  the  ship  ; 
but  as  the  danger  attending  their  use  is  much  greater  than  that  attend- 
ing the  use  of  the  public  highways,  so  the  measure  of  care  required  is 
correspondingly  greater.  In  the  case  of  railroad  companies  the  rule 
has  been  held  with  great  steadiness  that  the  duty  of  the  company  is 
to  exercise  the  utmost  degree  of  care  consistent  with  the  continuance 
of  the  business.  In  our  own  leading  case  upon  the  subject,  Laing  v.  Colder, 
8  Pa.  479,  Justice  Bell,  who  delivered  the  opinion  of  the  court,  uses 
this  language  :  "But,  though,  in  legal  contemplation,  they  (the  railroad 
companies)  do  not  warrant  the  absolute  safety  of  passengers,  they  me 
yet  bound  to  the  utmost  care.  The  slightest  neglect  against  which 
human  prudence  and  foresight  may  guard,  and  by  which  hurt  or  loss 
is  occasioned,  will  render  them  liable  to  answer  in  damages." 


1C2  WHARFINGERS. 

The  foundation  on  which  the  rule  in  all  these  cases  rests,  is  the  char- 
acter of  the  danger  to  which  the  property  or  person  is  exposed,  and  the 
absolute  dependence  of  the  public  upon  the  care  and  fidelity  of  those 
who  serve  it. 

The  same  words  "utmost  care"  have  been  used  to  define  the  degree 
of  care  due  from  the  owner  of  a  public  wharf  to  the  navigator  of  boats 
and  rafts ;  from  a  ship  company  to  the  public  passing  over  its  gang- 
ways ;  from  a  railroad  company  to  passengers  being  transported  in  its 
cars.  In  each  case,  however,  they  are  to  be  understood  in  connection 
with  the  subject  to  which  they  are  applied.  In  the  case  of  the  Penn. 
R.  Co.  v.  Fries,  87  Pa.  234,  negligence  is  defined  as  the  absence  of  care 
according  to  the  circumstances.  Drawn  out  at  length,  this  is  a  state- 
ment that  the  nature  and  extent  of  the  peril  to  be  guarded  against  and 
the  extent  of  the  calamity  to  be  suffered  in  case  of  failure,  are  always 
to  be  considered  in  determining  the  degree  of  care  to  be  exercised  in 
any  given  case.  Whatever  a  diligent  man  would  deem  necessary 
under  any  given  circumstances  for  the  preservation  of  his  own  prop- 
erty, must  be  done  by  the  individual,  or  corporation,  or  city,  that  under- 
takes, for  hire,  the  preservation  of  property  for  the  public.  The 
"utmost  care"  therefore,  which  was  due  from  the  city  of  Allegheny,  re- 
quired the  use  of  all  the  appliances  and  precautions  that  a  diligent  man 
owning  the  rafts  and  owning  the  wharf  would  deem  it  proper  to  employ 
in  the  preservation  of  his  own  property  from  the  perils  of  the  river. 
This  definition  or  statement  of  the  care  due  from  the  defendant  city  is 
in  harmony  with  the  cases  cited  above,  and  is  that  by  which  the  ques- 
tion of  its  negligence  in  the  management  of  its  wharf  is  to  be  determined. 

Judgment  reversed,  and  venire  facias  de  novo  awarded. 


PUBLIC    CALLING.  163 


V.   INNKEEPERS. 
1.   PUBLIC   CALLING. 

CALYE'S  CASE. 

King's  Bench.     8  Coke  32a.     1584. 

It  was  resolved,  per  totam  curiam  this  term,  that  if  a  man  comes  to 
a  common  inn,  and  delivers  his  horse  to  the  hostler,  and  requires  him  to 
put  him  to  pasture,  which  is  done  accordingly,  and  the  horse  is  stolen, 
the  innholder  shall  not  answer  for  it ;  for  the  words  of  the  writ  which 
lieth  against  the  hostler  are,  Cum  secundum  legem  et  consuetud'  regni 
nostri  Angliac  hospitatores  qui  hospitia  cum'  tenent  ad  hospitandos  ho- 
mines, per  partes  ubi  hujusmodi  hospitia  existunt  transeuntes,  et  in  eisdem 
hospitantes,  eorum  bona  et  catalla  infra  hospitia  ilia  existentia  absque 
subtractione  seu  amissione  custodire  die  et  node  tenentur,  ita  quod  pro 
dcfectu  hujusmodi  hospitatorum  seu  servientium  suorum  hospitibus  hujus- 
modi damnum  non  eveniat  ullo  modo  quidam  malef adores  quendam  cquum 
ipsius  A.  precii  Ifis.  infra  hospitium  ejusdem  B.  &c.  inventum,  pro  de- 
fectu ipsius  B.  ceperunt,  &c.  Vide  Registr'  fol.  105.  inter  brevia  de 
Transgr.  and  F.  N.  B.  94  a.  b.,  by  which  original  writ  (which  is  in  such 
case  the  ground  of  the  common  law)  all  the  cases  concerning  hostlers 
may  be  decided.  For,  1.  It  ought  to  be  a  common  inn;  for  if  a  man 
be  lodged  with  another  (who  is  not  an  innholder)  upon  request,  if  he  be 
robbed  in  his  house  by  the  servants  of  him  who  lodged  him,  or  any 
other,  he  shall  not  answer  for  it;  for  the  words  are  hospitares  qui  cum' 
hospitia  tenent,  &c.  And  so  are  the  books  in  22  H.  6.  21  b.  38 ;  2  H. 
4.  7  b. ;  11  H.  4.  45  a.  b. ;  42  Ass.  pi.  17 ;  42  E.  3.  11  a. ;  10  El.  Dyer 
266 ;  5  Mar.  Dyer  158.  And  the  writ  need  not  mention  that  the  de- 
fendant keeps  commune  hospitium,  for  the  words  of  the  writ  in  the 
Register  are  infra  hospitium  ejusdem  B.  But  it  is  to  be  so  intended 
in  the  writ;  for  the  recital  of  the  writ  is,  hospitatores  qui  communia 
hospitia  tenent,  &c.  and  the  one  part  ought  to  agree  with  the  other,  and 
the  latter  words  depend  on  the  other,  and  the  plaintiff  ought  to  declare 
that  he  keeps  commune  hospitium;  and  so  the  said  books  in  22  H.  6.  21  ; 
11  H.  4.  45  a.  b. ;   10  Eliz.  Dyer  266,  &c,  are  well  reconciled. 

2.  The  words  are,  ad  hospitandos  homines  per  partes  ubi  hujusmodi 
hospitia  existunt  transeuntes,  et  in  eisdem  hospitantes ;  by  which  it  ap- 
pears that  common  inns  are  instituted  for  passengers  and  wayfaring 
men ;  for  the  Latin  word  for  an  inn  is,  diversorium,  because  he  who 
lodges  there  is,  quasi  divertens  se  a  via;  and  so  divcrsoriolum.  And 
therefore  if  a  neighbour  who  is  no  traveller,  as  a  friend,  at  the  request 


164  INNKEEPERS. 

of  the  innhokler  lodges  there  and  his  goods  be  stolen,  &c.,  he  shall 
not  have  an  action;  for  the  writ  is,  ad  hospitandos  homines,  &c,  trans- 
cuntes  in  cisdem  hospitantes,  &c. 

3.  The  words  are  eorum  bona  et  catalla  infra  hospitia  ilia  existentia, 
&c.  So  that  the  innhokler,  by  law,  shall  answer  for  nothing  that  is 
out  of  his  inn,  but  only  for  those  things  which  are  infra  hospitium.  And 
because  the  horse,  which  at  the  request  of  the  owner  is  put  to  pasture, 
is  not  infra  hospitium,  for  this  reason  the  innholder  is  not  bound  by  law 
to  answer  for  him,  if  he  be  stolen  out  of  the  pasture  ;  for  the  thing  with 
which  the  hostler  shall  be  charged  ought  to  be  infra  hospitium;  and 
therewith  agrees  the  books  in  11  Hen.  4.  45  a.  b. ;  22  Hen.  6.  21  b. ; 
42  E.  3.  11  a.  b. ;  42  Ass.  pi.  17,  where  Knivet,  C.  J.,  saith  that  the 
innholder  is  bound  to  answer  for  himself  and  for  his  family,  of  the 
chambers  and  stables,  for  they  are  infra  hospitium;  and  with  this 
resolution  in  this  point  agreed  the  opinion  of  the  Justices  of  Assize, 
(viz.  the  two  Chief  Justices,  Wray  and  Anderson)  in  the  county  of 
Suffolk  in  Lent  vacation,  26  Eliz.,  that  if  an  innholder  lodges  a  man  and 
his  horse,  and  the  owner  requires  the  horse  to  be  put  to  pasture,  and 
there  he  is  stolen,  the  innholder  shall  not  answer  for  him.  But  it  was 
held  by  them,  that  if  the  owner  doth  not  require  it,  but  the  innholder 
of  his  own  head  puts  his  guest's  horse  to  grass,  he  shall  answer  for  him 
if  he  be  stolen,  &c.  And  it  is  to  be  observed  that  this  word  hostler  is 
derived  ab  hostle ;  and  hospitator,  which  is  used  in  writs  for  an  innholder, 
is  derived  ab  hospitio,  and  hospcs  est  quasi  hospitium  petcns. 

4.  The  words  are,  ita  quod  pro  defectu  hospitator',  seu  servientium 
suorum,  &c,  hospitibus  hujusmodi  damn'  non  eveniat,  &c,  by  which  it 
appears  that  the  innholder  shall  not  be  charged,  unless  there  be  a  default 
in  him  or  his  servants,  in  the  well  and  safe  keeping  and  custody  of  their 
guest's  goods  and  chattels  within  his  common  inn ;  for  the  innkeeper 
is  bound  in  law  to  keep  them  safe  without  any  stealing  or  purloining ; 
and  it  is  no  excuse  for  the  innkeeper  to  say,  that  he  delivered  the  guest 
the  key  of  the  chamber  in  which  he  is  lodged,  and  that  he  left  the  cham- 
ber door  open  :  but  he  ought  to  keep  the  goods  and  chattels  of  his  guest 
there  in  safety ;  and  therewith  agrees  22  H.  6.  21  b. ;  11  H.  4.  45  a.  b. ; 
42  Edw.  3.  11  a.  And  although  the  guest  doth  not  deliver  his  goods 
to  the  innholder  to  keep,  nor  acquaints  him  with  them,  yet  if  they  be 
carried  away,  or  stolen,  the  innkeeper  shall  be  charged,  and  therewith 
agrees  42  Edw.  3.  11a.  And  although  they  who  stole  or  carried  away 
the  goods  be  unknown,  yet  the  innkeeper  shall  be  charged,  22  H.  6.  38 ; 
8  R.  2;  Hosteler  7.  Vide  22  H.  6.  21.  But  if  the  guest's  servant,  or 
he  who  comes  with  him,  or  he  whom  he  desires  to  be  lodged  with  him, 
steals  or  carries  away  his  goods,  the  innkeeper  shall  not  be  charged; 
for  there  the  fault  is  in  the  guest  to  have  such  companion  or  servant ; 
and  the  words  of  the  writ  are,  pro  defectu  hospitator'  seu  servientium 
suorum.  Vide  22  H.  6.  21  b.  But  if  the  innkeeper  appoints  one  to 
lodge  with  him,  he  shall  answer  for  him,  as  it  there  appears.     The 


PUBLIC    CALLING. 


165 


innkeeper  requires  his  guest  that  he  will  put  his  goods  in  such  a  chamlx  r 
under  lock  and  key,  and  then  he  will  warrant  them,  otherwise  not,  the 
guest  lets  them  lie  in  an  outer  court,  where  they  are  taken  away,  the 
innkeeper  shall  not  be  charged,  for  the  fault  is  in  the  guest,  as  it  is  held 
10  Eliz.  Dyer  266. 

5.  The  words  are,  hospitibus  damnum  non  eveniat:  these  words  are 
general,  and  yet  forasmuch  as  they  depend  on  the  precedent  words,  they 
will  produce  two  effects,  viz.  1 .  They  illustrate  the  first  words.  2.  They 
are  restrained  by  them:  for  the  first  words  are,  eorum  bona  et  catal' 
infra  hospitia  ilia  existentia  absque  subtractions  custodire,  (fee,  which  words 
(bona  et  catalla)  by  the  said  words,  ita  quod,  &c.  hospitibus  damnum  non 
eveniat,  although  they  do  not  of  their  proper  nature  extend  to  charters 
and  evidences  concerning  freehold  or  inheritance,  or  obligations,  or 
other  deeds  or  specialties,  being  things  in  action,  yet  in  this  case  it  is 
expounded  by  the  latter  words  to  extend  to  them ;  for  by  them  great 
damages  happen  to  the  guest :  and  therefore,  if  one  brings  a  bag  or 
chest,  &c,  of  evidences  into  the  inn,  or  obligations,  deeds,  or  other  spe- 
cialties, and  by  default  of  the  innkeeper  they  are  taken  away,  the  inn- 
keeper shall  answer  for  them,  and  the  writ  shall  be  bona  et  catalla  gen- 
erally; and  the  declaration  shall  be  special.  — 2.  These  words,  bona  et 
catalla,  restrain  the  latter  words  to  extend  only  to  moveables ;  and, 
therefore,  by  the  latter  words,  if  the  guest  be  beaten  in  the  inn,  the 
innkeeper  shall  not  answer  for  it ;  for  the  injury  ought  to  be  done  to 
his  moveables  which  he  brings  with  him;  and  by  the  words  of  the 
writ,  the  innholder  ought  to  keep  the  goods  and  chattels  of  his  guest, 
and  not  his  person ;  and  yet  in  such  case  of  battery,  hospiti  damnum 
evenit,  but  that  is  restrained  by  the  former  words,  as  hath  been  said. 
And  these  words  aforesaid,  absque  subtractione  scu  amissione,  extend  to 
all  moveable  goods,  although  of  them  felony  cannot  be  committed; 
for  the  words  are  not  absque  felonica  captione,  &c,  but  absque  subtrac- 
tione, which  may  extend  to  any  moveables,  although  of  them  felony 
cannot  be  committed,  as  of  charters,  evidences,  obligations,  deeds, 
specialties,  &c. 


REX  v.   IVENS. 

Monmouth  Assizes,  7  Car.  &  P.  213.     1835. 

Indictment  against  the  defendant,  as  an  innkeeper,  for  not  receiving 
Mr.  Samuel  Probyn  Williams  as  a  guest  at  his  inn,  and  also  for  refusing 
to  take  his  horse.  The  first  count  of  the  indictment  averred  that  the 
prosecutor  had  offered  to  pay  a  reasonable  sum  for  his  lodgings  ;  and 
the  first  and  second  counts  both  stated  that  there  was  room  in  the  inn. 
The  third  count  omitted  these  allegations,  and  also  omitted  all  mention 


166  INNKEEPERS. 

of  the  horse.     The  fourth  count  was  similar  to  the  third,  but  in  a  more 
general  form.     Plea  —  Not  guilty. 

Coleridge,  J.  (in  summing  up).  The  facts  in  this  case  do  not 
appear  to  be  much  in  dispute ;  and  though  I  do  not  recollect  to  have 
ever  heard  of  such  an  indictment  having  been  tried  before,  the  law 
applicable  to  this  case  is  this :  that  an  indictment  lies  against  an  inn- 
keeper, who  refuses  to  receive  a  guest,  he  having  at  the  time  room  in 
his  house ;  and  either  the  price  of  the  guest's  entertainment  being  ten- 
dered to  him,  or  such  circumstances  occurring  as  will  dispense  with 
that  tender.  This  law  is  founded  in  good  sense.  The  innkeeper  is 
not  to  select  his  guests.  He  has  no  right  to  say  to  one,  you  shall  come 
into  my  inn,  and  to  another  you  shall  not,  as  every  one  coming  and 
conducting  himself  in  a  proper  manner  has  a  right  to  be  received ;  and 
for  this  purpose  innkeepers  are  a  sort  of  public  servants,  they  having 
in  return  a  kind  of  privilege  of  entertaining  travellers,  and  supplying 
them  with  what  they  want.  It  is  said  in  the  present  case,  that  Mr. 
Williams,  the  prosecutor,  conducted  himself  improperly,  and  therefore 
ought  not  to  have  been  admitted  into  the  house  of  the  defendant.  If 
a  person  came  to  an  inn  drunk,  or  behaved  in  an  indecent  or  improper 
manner,  I  am  of  opinion  that  the  innkeeper  is  not  bound  to  receive 
him.  You  will  consider  whether  Mr.  Williams  did  so  behave  here. 
It  is  next  said  that  he  came  to  the  inn  at  a  late  hour  of  the  night,  when 
probably  the  family  were  gone  to  bed.  Have  we  not  all  knocked  at 
inn  doors  at  late  hours  of  the  night,  and  after  the  family  have  retired 
to  rest,  not  for  the  purpose  of  annoyance,  but  to  get  the  people  up  ? 
In  this  case  it  further  appears,  that  the  wife  of  the  defendant  has  a 
conversation  with  the  prosecutor,  in  which  she  insists  on  knowing  his 
name  and  abode.  I  think  that  an  innkeeper  has  no  right  to  insist  on 
knowing  those  particulars ;  and  certainly  you  and  I  would  think  an 
innkeeper  very  impertinent,  who  asked  either  the  one  or  the  other  of 
any  of  us.  However,  the  prosecutor  gives  his  name  and  residence ; 
and  supposing  that  he  did  add  the  words  "and  be  damned  to  you," 
is  that  a  sufficient  reason  for  keeping  a  man  out  of  an  inn  who  has 
travelled  till  midnight?  I  think  that  the  prosecutor  was  not  guilty 
of  such  misconduct  as  would  entitle  the  defendant  to  shut  him  out  of 
his  house.  It  has  been  strongly  objected  against  the  prosecutor  by  Mr. 
Dodson,  that  he  had  been  travelling  on  a  Sunday.  To  make  that 
argument  of  any  avail,  it  must  be  contended  that  travelling  on  a  Sun- 
day is  illegal.  It  is  not  so,  although  it  is  what  ought  to  be  avoided 
whenever  it  can  be.  Indeed,  there  is  one  thing  which  shows  that  travel- 
ling on  a  Sunday  is  not  illegal,  which  is,  that  in  many  places  you  pay 
additional  toll  at  the  turnpikes  if  you  pass  through  them  on  a  Sunday, 
by  which  the  legislature  plainly  contemplates  travelling  on  a  Sunday  as 
a  thing  not  illegal.  I  do  not  encourage  travelling  on  Sundays,  but  still 
it  is  not  illegal.  With  respect  to  the  non-tender  of  money  by  the 
prosecutor,  it  is  now  a  custom  so  universal  with  innkeepers  to  trust 


ESSENTIAL    RELATION    OF    INNKEEPER   AND    GUEST.  167 

that  a  person  will  pay  before  he  leaves  an  inn,  that  it  cannot  be  neces- 
sary for  a  guest  to  tender  money  before  he  goes  into  an  inn  ;  indeed, 
in  the  present  case,  no  objection  was  made  that  Mr.  Williams  did  not 
make  a  tender ;  and  they  did  not  even  insinuate  that  they  had  any  sus- 
picion that  he  could  not  pay  for  whatever  entertainment  might  be 
furnished  to  him.  I  think,  therefore,  that  that  cannot  be  set  up  as  a 
defence.  It  however  remains  for  me  next  to  consider  the  case  with 
respect  to  the  hour  of  the  night  at  which  Mr.  Williams  applied  for 
admission ;  and  the  opinion  which  I  have  formed  is,  that  the  lateness 
of  the  hour  is  no  excuse  to  the  defendant  for  refusing  to  receive  the  prose- 
cutor into  his  inn.  Why  are  inns  established  ?  For  the  reception  of 
travellers,  who  are  often  very  far  distant  from  their  own  homes.  Now, 
at  what  time  is  it  most  essential  that  travellers  should  not  be  denied 
admission  into  the  inns  ?  I  should  say  when  they  are  benighted,  and 
when,  from  any  casualty,  or  from  the  badness  of  the  roads,  they  arrive 
at  an  inn  at  a  very  late  hour.  Indeed,  in  former  times,  when  the  roads 
were  much  worse,  and  were  much  infested  with  robbers,  a  late  hour  of 
the  night  was  the  time,  of  all  others,  at  which  the  traveller  most  re- 
quired to  be  received  into  an  inn.  I  think,  therefore,  that  if  the  traveller 
conducts  himself  properly,  the  innkeeper  is  bound  to  admit  him,  at 
whatever  hour  of  the  night  he  may  arrive.  The  only  other  question 
in  this  case  is,  whether  the  defendant's  inn  was  full.  There  is  no  dis- 
tinct evidence  on  the  part  of  the  prosecution  that  it  was  not.  But  I 
think  the  conduct  of  the  parties  shews  that  the  inn  was  not  full ;  be- 
cause, if  it  had  been,  there  could  have  been  no  use  in  the  landlady  ask- 
ing the  prosecutor  his  name,  and  saying,  that  if  he  would  tell  it,  she 
would  ring  for  one  of  the  servants. 

Verdict  —  Guilty. 


2.   ESSENTIAL    RELATION    OF    INNKEEPER    AND    GUEST. 

KISTEN  v.   HILDEBRAND. 

9  B.  Mon.  (Ky.)  72;   48  Am.  D.  416.     1848. 

Marshall,  C.  J.  This  action  on  the  case  was  brought  to  recover 
from  Kisten,  as  an  innkeeper,  a  large  sum  of  money  alleged  to  have  been 
taken,  through  the  default  and  negligence  of  the  defendant,  his  servants. 
etc.,  from  the  trunk  of  the  plaintiff,  in  the  inn  of  the  defendant,  he,  the 
plaintiff,  being  then  a  guest  therein.  The  form  of  proceeding  against 
innkeepers  in  England,  upon  the  custom  of  the  realm,  seems  to  have 
been  substantially  pursued.  The  declaration  sets  out  as  the  foundation 
of  the  action,  that  "by  the  custom  and  law  of  this  commonwealth,  inn- 
keepers who  keep  common  inns  for  entertaining  men  travelling  through 


1GS  INNKEEPERS. 

those  parts  where  those  inns  are,  and  in  the  same  abiding,  their  goods 
and  chattels  and  money,  within  those  inns  being,  are  bound  to  keep, 
day  and  night,  without  diminution  or  loss,  so  that  through  the  default 
of  the  said  innkeepers,  or  their  servants,  damage  to  such  guests  might 
not,  in  any  manner,  happen,"  etc.,  and  alleges  that  through  the  default 
of  the  defendant  and  his  servants,  the  money  was  taken  and  carried 
away  by  certain  malefactors.  A  demurrer  to  the  declaration  was  over- 
ruled, and  a  trial  being  had  on  the  plea  of  not  guilty,  filed  with  the 
demurrer,  a  verdict  for  three  hundred  dollars  was  found  against  the 
defendant,  who  prosecutes  this  writ  of  error  for  the  reversal  of  the  judg- 
ment rendered  upon  it. 

As  the  custom  of  the  realm  of  England,  with  regard  to  inns  and  inn- 
keepers, and  the  liability  of  the  latter,  was  a  general  custom,  and,  there- 
fore, a  part  of  the  common  law,  we  assume  that  so  far  as  it  is  applicable 
and  not  inconsistent  with  our  own  local  laws  and  usages,  it  is  also  a 
part  of  the  common  law  of  this  state.  Under  this  assumption,  we  are 
of  opinion  that  taking  into  view  the  preamble  to  the  declaration,  in 
which  the  defendant  is  charged  to  be  an  innkeeper,  a  cause  of  action 
under  the  law  set  forth,  is  substantially  shown.  The  demurrer  to  the 
declaration  was,  therefore,  properly  overruled  —  and  we  only  remark 
further,  that  it  is  no  more  necessary  in  this  than  in  other  cases,  to  set 
out  the  law  of  the  land  on  which  the  action  is  founded.  The  law  with 
regard  to  the  liability  of  innkeepers  being  one  of  extreme  rigour,  it  is 
essential  to  the  safety  of  all  persons  who  may  be  engaged  in  the  business 
of  entertaining  others  in  their  houses  for  reward,  that  the  extent  of  its 
application  should  be  clearly  defined,  and  that  it  should  not  be  carried 
beyond  its  proper  limits.  An  innkeeper  is  prima  facie  liable  for  all 
losses  which  happen  to  the  goods  of  his  guests  in  his  inn,  all  such  being 
attributed  to  him  on  the  ground  of  public  policy,  and  the  confidence 
necessarily  reposed  in  him,  and  on  account  of  the  difficulty  of  proving 
actual  negligence.  But  he  is  not  liable  if  the  loss  be  occasioned  h\ 
external  force  or  robbery — or  if  it  be  attributable  to  the  neglect  of  the 
guest,  or  to  the  act  of  his  servant  or  companion.  This  being  the  extent 
of  his  liability  to  his  guests,  it  is  important  to  determine  who  is  an 
innkeeper,  and  who  may  claim  the  benefit  of  this  liability. 

It  was  laid  down  in  Calye's  Case,  8  Co.  32  [163],  that  common  inns 
were  instituted  for  passengers  and  wayfaring  men.  And  we  think  it  will 
be  found  that  the  great  liability  imposed  upon  them,  is  for  the  benefit 
of  travellers  and  transient  persons,  who  are  often  compelled  to  resort  to 
inns  for  shelter  and  entertainment,  without  the  means  of  knowing  the 
character  of  the  host ;  and  without  the  opportunity  of  securing  them- 
selves, against  loss  or  damage  to  their  goods.  A  common  innkeeper  is 
defined  to  be  "  a  person  who  makes  it  his  business  to  entertain  travellers 
and  passengers,  and  provide  lodging  and  necessaries  for  them,  and  their 
horses,  and  attendants"  :  Bacon's  Abr.,  Inns  and  Innkeepers,  B  ;  Story 
on  Bail.,  §  475.     But  it  has  been  decided  that  a  man  may  be  an  inn- 


ESSENTIAL    RELATION    OF    INNKEEPER    AND    GUEST.  169 

keeper,  and  liable  as  such,  though  he  have  no  provision  for  horses.  It 
is  not  necessary  that  he  should  have  ;t  sign  indicating  that  he  is  an  inn- 
keeper, but  it  must  be  his  business  to  entertain  travellers  and  passengi 
His  duty  extends  chiefly  to  the  entertaining  and  harbouring  of  travel!* 
etc.,  and  therefore,  if  one  who  keep-  a  common  inn  refuses  to  receive  a 
traveller,  or  to  find  him  in  victuals,  etc.,  for  a  reasonable  price  (without 
good  excuse,  as  that  his  house  is  full),  he  is  liable  not  only  to  a  civil 
action,  but  to  an  indictment.  For  having  taken  upon  himself  a  public 
employment,  he  must  serve  the  public  to  the  extent  of  that  employ- 
ment:   Bacon's  Abr.,  Inns  and  Innkeepers,  c.  1. 

One  who  lodges  and  entertains  strangers  at  a  watering  place,  who 
come  to  drink  the  waters,  if  he  entertain  no  others,  is  not  thereby  an 
innkeeper :  Bacon's  Abr.,  Inns  and  Innkeepers,  B.  So  the  keeper  of 
a  coffee-house,  or  a  boarding-house,  is  not  as  such  an  innkeeper  :  Story 
on  Bail.,  §  475.  It  must  be  a  house  kept  open  publicly  for  the  lodg- 
ing and  entertainment  of  travellers  in  general  for  a  reasonable  compen- 
sation :  2  Kent's  Com.  595.  And  although  the  house  be  an  inn,  and 
the  keeper  an  innkeeper,  it  does  not  follow  that  he  is  under  the  same 
liability  to  all  persons  who  may  be  staying  at  the  inn  with  their  goods. 
The  length  of  time  that  a  man  stays  at  an  inn  does  not  make  the  dif- 
ference, "  though  he  stay  a  week,  or  a  month  or  more,  so  always  though 
not  strictly  transeuns,  he  retains  his  character  as  a  traveller."  Story  on 
Bail,  §  177;  Bacon's  Abr.,  Inns  and  Innkeepers,  c.  5.  "But  if  a 
person  comes  upon  a  special  contract  to  board  and  sojourn  at  the  inn, 
he  is  not  in  the  sense  of  the  law  a  guest,  but  a  boarder"  :  same  authori- 
ties. 

We  greatly  doubt  whether  the  evidence  in  this  case  is  sufficient 
to  authorise  the  conclusion  that  the  defendant  was  an  innkeeper,  or 
that  professedly,  or  in  point  of  fact,  he  had  assumed  the  business  of 
receiving  and  entertaining  the  travelling  public  generally,  or  that  his 
character  or  business  or  employment  was  such  as  to  preclude  him  from 
refusing  to  receive  and  entertain  any  person  at  his  own  pleasure,  or  to 
render  him  liable  either  to  an  action  or  an  indictment  for  such  refusal, 
as  the  keeper  of  a  common  inn  may  have  inmates  of  his  house  for  a 
reward,  to  whom  he  may  not  be  under  the  strict  liability  of  an  innkeeper ; 
so  may  the  keeper  of  a  boarding-house  occasionally  entertain  transient 
persons  without  acquiring  the  character,  or  being  under  the  responsi- 
bilities, of  an  innkeeper.  And  certainly  a  man  professing  to  be  the 
keeper  of  a  boarding-house,  or  a  licensed  coffee-house,  is  not,  though  he 
also  entertain  travellers,  liable  to  his  boarders  as  an  innkeeper  is  liable 
to  his  travelling  guests.  Conceding,  then,  that  the  evidence  authorised 
the  jury  to  find  that  the  defendant  was  an  innkeeper,  because  he 
occasionally  entertained  travellers,  it  is  also  certain  that  his  profi 
and  ordinary  business  was  that  of  the  keeper  of  a  coffee-hoiw  and 
boarding-house.  And  although  the  evidence  is  not  very  explicit  with 
regard  to  the  character  in  which  the  plaintiff  was  an  inmate  of   the 


170  INNKEEPERS. 

house,  we  think  it  was  sufficient  to  authorise  the  jury  to  infer  that  he 
was  there  as  a  boarder,  and  not  as  a  traveller  or  temporary  trader.  And 
as  the  instructions  of  the  court  submitted  to  the  jury  as  the  decisive 
question,  the  single  inquiry  whether  the  defendant  was  an  innkeeper 
or  not,  and  sustained,  or  rather  required,  a  verdict  against  him  if  he  was 
so  found  to  be,  we  think  it  was  erroneous  in  withdrawing  from  the 
jury  the  question  whether  the  plaintiff  was  a  guest  entitled  to  the 
benefit  of  the  extreme  liability  imposed  upon  an  innkeeper  in  favour  of 
travellers,  or  whether  he  was  a  mere  boarder. 

The  instructions  also  assume  that  the  plaintiff's  money  was  taken 
in  defendant's  house,  which  should  have  been  left  to  the  jury,  although 
this  assumption  is  perhaps  sufficiently  authorised  by  the  evidence,  and 
would  not  be  deemed  a  ground  of  reversal.  We  are  also  of  opinion  that 
the  definition  of  an  innkeeper,  given  to  the  jury,  though  correct,  should 
have  been  more  explicit ;  and  that,  as  the  court  told  the  jury,  that  the 
calling  of  a  house  a  coffee-house  or  a  boarding-house,  did  not  change 
the  liability  of  the  defendant  if  he  was  an  innkeeper,  they  should  also 
have  been  told,  that  the  occasional  entertainment  of  travellers  did  not 
make  a  boarding-house  or  a  coffee-house,  a  common  inn,  and  that  if 
the  plaintiff  was  a  boarder  and  not  a  traveller,  he  could  not  recover 
upon  the  general  liability  of  an  innkeeper.  The  court  having  under- 
taken, on  its  own  motion,  to  state  the  law  to  the  jury,  should  have 
stated  the  law  as  applicable  to  the  whole  case,  leaving  to  them  the  deci- 
sion of  all  questions  of  fact  arising  on  the  evidence.  And  as  the  court 
had  not  stated  the  liability  of  an  innkeeper,  we  think  the  incorrect 
statement  of  the  plaintiff's  counsel,  in  his  concluding  argument  to  the 
jury,  should  have  been  corrected  at  the  request  of  the  defendant's 
counsel. 

Wherefore  the  judgment  is  reversed,  and  the  case  remanded  for  a 
new  trial  in  conformity  with  this  opinion. 


HANCOCK  v.   RAND. 

94  N.  Y.  1 ;   46  Am.  R.  112.     1883. 

Miller,  J.  The  plaintiff  claims  to  recover  in  this  action  the  value 
of  property  stolen  while  a  guest  at  the  hotel  of  the  defendants  in  the 
city  of  New  York.  The  findings  of  the  referee  show  that  the  plaintiff 
was  an  inmate  of  the  defendants'  hotel  from  November,  1873,  until 
June,  1874,  and  that  the  articles  lost  were  taken  from  the  rooms  occupied 
by  plaintiff  in  the  month  of  March,  1874 ;  that  the  husband  of  the  plain- 
tiff, General  Hancock,  was  an  officer  in  the  United  States  army,  and 
that  in  November,  1873,  he  applied  for  rooms  and  board  at  the  defend- 
ants' hotel  for  himself  and  family;   that  after  some  conversation  be- 


ESSENTIAL    RELATION    OF   INNKEEPER   AND    GUEST.  171 

tween  the  defendants  and  said  Hancock,  in  regard  to  himself  and  family 
remaining  at  defendants'  hotel,  in  which  certain  rooms,  in  a  private 
house  adjoining  said  hotel,  which  the  defendants  wen-  then  using  in 
connection  with  the  same,  were  mentioned,  it  was  said  by  General  Han- 
cock that  he  expected  to  remain  until  the  following  summer,  provided 
everything  was  satisfactory,  and  provided  also  he  was  not  sooner 
ordered  elsewhere  on  military  duty;  that  the  defendants  offered  the 
terms  which  they  would  take  for  said  rooms,  which  terms  General 
Hancock  accepted  on  the  understanding  that  he  should  continue  to 
occupy  them  until  the  next  following  spring  or  summer,  provided  every- 
thing was  satisfactory,  and  provided  also  he  was  not  sooner  ordered 
away  on  military  duty.  The  referee  also  found  that  General  Hancock 
and  family,  immediately  prior  to  their  going  to  the  hotel  of  the  defend- 
ants, had  been  boarding  at  another  hotel  in  New  York  City,  and  had 
no  permanent  home  anywhere ;  that  prior  to  the  year  1873  and  ever 
since  that  time  the  home  of  General  Hancock  has  been  wherever  his 
military  headquarters  were,  and  that  such  headquarters  during  that 
time  have  been  at  different  places.  The  referee  refused  to  find,  as 
requested  by  the  defendants,  that  any  substantial  agreement  had  been 
made  by  General  Hancock  as  to  the  length  of  time  he  and  his  family 
should  occupy  said  rooms. 

We  think  that  the  finding  of  the  referee  as  to  the  understanding  under 
which  General  Hancock  and  family  came  to  the  defendants'  hotel  is 
sufficiently  supported  by  the  evidence,  and.  that  his  refusal  to  find  that 
there  was  any  substantial  contract  as  to  time  between  the  parties  was 
fully  justified.  It  appears  very  distinctly  by  the  proof  that  no  specified 
time  was  absolutely  fixed  or  agreed  upon  for  the  stay  of  General  Hancock 
and  family  at  the  defendants'  hotel,  and  no  express  contract  was  made 
in  regard  to  the  same.  According  to  the  evidence  the  General  and 
family  had  a  perfect  right  to  leave  at  any  time  after  the  contract  was 
made,  and  were  not  bound  to  remain  for  even  an  entire  day,  the  moment 
General  Hancock  was  dissatisfied  he  and  his  family  had  a  right  to  leave 
the  hotel,  so  also  if  ordered  elsewhere  he  had  a  right  to  leave.  It  rested 
with  him  in  these  contingencies  to  do  and  act  exactly  as  he  pleased. 
It  was  a  fluctuating  agreement,  depending  upon  his  own  will  and  caprice, 
and  it  cannot  be  said  that  the  minds  of  the  parties  met  as  to  any  specific 
time  whatever.  The  defendants  could  not  have  recovered  damages  by 
reason  of  his  leaving  at  any  moment.  As  an  officer  in  the  army  his  du  t  y 
might  at  any  time  have  called  him  away  to  some  distant  ami  remote 
place;  and  individually  he  had  the  right  to  say  when  he  should  go 
without  consulting  the  defendants.  Really  and  actually  he  was  but  a 
transient  guest,  who  had  the  right  to  come  and  to  go  whenever  he  pleased 
Officers  of  the  army  and  navy,  and  soldiers  and  sailors,  who  have  no 
permanent  residence  which  they  can  call  home,  may  will  be  regarded 
as  travellers  or  wayfarers  when  stopping  at  public  inns  or  hotels,  and 
to  make  them  chargeable  as  mere  boarders  it  should  be  shown  satisfac- 


172  INNKEEPERS. 

torily  that  an  explicit  contract  had  been  made  which  deprived  them  of 
the  privileges  and  rights  which  their  vocation  conferred  upon  them  as 
passengers  or  travellers.  General  Hancock  and  the  defendants  evi- 
dently had  this  in  view  in  the  conversation  which  took  place  between 
them  in  regard  to  the  former's  stay  at  the  latter's  hotel.  The  fact  that 
General  Hancock  was  subject  to  marching  orders  at  any  moment,  and 
that  this  contingency  was  expressly  provided  for,  makes  a  wide  dis- 
tinction between  the  case  at  bar  and  one  which  possesses  no  such  fea- 
tures. This  difference  and  the  circumstances  connected  with  it  should 
be  sufficient  to  take  this  case  out  of  the  ordinary  rule  which  applies 
between  an  innkeeper  and  a  permanent  boarder,  and  fully  sustains  the 
rule  we  have  laid  down  without  disturbing  the  relationship  or  obliterat- 
ing the  distinction  which  exists  between  a  guest  and  a  boarder.  In 
view  of  the  evidence  presented  and  the  findings  of  the  referee,  we  think 
the  defendants  are  bound  within  the  reason  of  the  rule  under  which  an 
innkeeper  is  held  liable  for  the  goods  and  property  of  his  guest.  As  a 
soldier,  General  Hancock  was  unable  to  acquire  a  permanent  home,  and 
by  reason  of  his  profession  was  obliged  to  live  temporarily  and  for 
uncertain  periods  of  time  at  different  places  and  with  innkeepers  and 
others  who  make  provision  for  the  entertainment  of  guests  and  travel- 
lers. He  was  necessarily  a  transient  person  liable  to  respond  to  the  call 
of  his  superiors  at  any  moment  and  to  change  the  locality  of  himself 
and  family.  The  defendants  kept  a  hotel  or  inn  taking  care  of  transient 
guests,  some  staying  for  a  longer,  some  for  a  shorter,  period.  General 
Hancock,  for  himself  and  family,  paid  for  their  meals  the  same  as  other 
transient  guests,  and  by  express  agreement  they  were  at  liberty  to  leave 
at  any  time  they  saw  fit.  Under  these  circumstances  no  reason  exists 
why  they  should  not  be  protected  as  well  as  the  other  travellers  or  guests 
at  the  hotel.  It  is  very  evident,  from  the  testimony,  that  no  absolute 
and  express  contract  was  made  for  the  hiring  of  the  rooms  and  the  board 
of  General  Hancock  and  his  family  for  any  stipulated  period  of  time, 
and  the  most  that  can  be  claimed,  on  the  part  of  the  appellants,  is  that 
it  was  a  question  of  fact  for  the  consideration  of  the  referee  and  for  him 
to  determine  whether  General  Hancock  and  family  were  travellers  and 
guests,  or  boarders.  On  the  one  hand,  as  already  stated,  General  Han- 
cock was  a  transient  person  and  could  not  depend  upon  remaining  for 
any  particular  period  of  time  at  any  place ;  he  was  without  any  perma- 
nent residence  or  home,  and  it  positively  appears  that  he  made  no  ar- 
rangement for  any  permanent  occupation  of  the  rooms  at  defendants' 
hotel.  On  the  other  hand,  separate  apartments  were  kept  for  boarders 
and  for  transient  persons  by  the  defendants,  and  the  General  and  his 
family  were  registered  among  the  former,  but  it  does  not  appear  that 
he  knew  this  fact,  and  hence  it  cannot  well  be  claimed  that  he  had 
grounds  for  supposing  and  understood  that  he  and  his  family  were 
boarders  and  not  guests.  The  authorities  hold  beyond  question  that 
the  fixing  of  the  price  does  not  make  the  party  a  boarder.     (See  Pinker- 


ESSENTIAL    RELATION    OF    INNKEEPER   AND    GUEST.  173 

ton  v.  Woodward,  33  Cal.  557;  Berkshire  Woolen  Co.  r.  Proctor,  7 
Cush.  417  [232] ;  Norcross  v.  Norcross,  53  Me.  L69  ;  Walling  c.  Potter, 
35  Conn.  183.)  The  fair  intendment  from  the  evidence  is  that  General 
Hancock  did  not  go  to  defendants'  hotel  under  a  contract  hiring  the 
rooms  for  a  season,  but  that  he  was  a  transient  person  who  had  the  right 
to  leave  at  any  moment,  the  same  as  any  other  guest.  Regarding  the 
evidence  as  it  stands,  and  conceding  the  facts  in  reference  to  the  f|ii< 
tion  whether  General  Hancock  and  family  were  travellers  and  guests, 
or  boarders,  there  would  seem  to  be  but  little  question  that  the  weight 
of  the  testimony  is  in  favour  of  the  proposition  that  there  were  travel- 
lers or  wayfarers  and  that  there  was  no  hiring  of  the  rooms  of  the  de- 
fendants for  a  season  or  a  specified  time.  Even  if  there  might  have 
been  a  doubt  as  to  whether  there  was  a  hiring  for  a  term,  as  the  referee 
has  found  in  favour  of  the  plaintiff  upon  this  question,  we  cannot  dis- 
turb the  finding  and  it  should  be  upheld. 

In  considering  the  question  discussed  it  should  not  be  overlooked 
that  the  St.  Cloud  Hotel  was  kept  as  a  public  inn  in  every  sense  and  was 
clearly  distinguishable  from  a  boarding-house;  its  proprietors  did  not 
claim  that  it  wTas  a  boarding-house,  and  there  is  no  evidence  to  show 
that  it  was  considered  in  that  light,  and  neither  the  fixing  of  the  price 
nor  the  conversation  had  in  reference  to  the  probability  of  General  Han- 
cock and  family  remaining  for  a  period  of  time  could  alter  or  change  its 
true  character.  Hotels  in  modern  days  are  differently  conducted  from 
what  they  were  in  times  gone  by.  Furnishing  rooms  at  a  fixed  price 
and  meals  at  prices  depending  upon  the  orders  given  at  the  usual  hotel 
rates  constitutes  a  material  difference  in  the  system  of  keeping  hotels 
from  that  which  formerly  existed.  The  defendants  conducted  a  res- 
taurant in  connection  with  their  hotel,  at  which  meals  were  furnished 
.in  accordance  with  fixed  prices.  General  Hancock  and  family,  after  the 
first  month  of  their  stay  at  the  defendants'  hotel,  and  at  the  time  the 
property  in  question  was  stolen,  took  their  meals  at  the  restaurant,  for 
which  they  paid  prices  for  each  meal  the  same  as  other  guests  or  travel- 
lers. So  far  then  as  this  is  concerned,  they  must  be  considered  the  same 
as  other  guests.  Certainly  they  were  not  boarders  in  the  sense  in  which 
that  term  is  understood.  As  they  were  guests  at  the  restaurant  at  the 
time  when  the  loss  occurred  and  paid  as  such,  it  is  difficult  to  see  upon 
what  principle  it  can  be  urged  that  they  were  boarders  because  their 
lodgings  were  in  the  hotel  or  in  rooms  connected  therewith.  To  sustain 
such  a  rule  would  make  them  boarders  in  part  and  guests  in  part.  Thi< 
would  be  unreasonable,  the  more  so  in  this  case,  because  the  proof  does 
not  establish  a  contract  for  any  fixed  time. 

The  appellants'  counsel  claims  that  the  referee  having  found  that 
General  Hancock  and  family  for  several  years  prior  to  going  to  the 
Cloud  Hotel  had  been  boarding  at  another  hotel  in  New  York  City, 
therefore  they  were  not  travellers  or  passengers,  but  were  at  their  home 
and  were  citizens  of  New  York.     As  we  have  already  seen,  the  General 


174  INNKEEPERS. 

being  a  soldier,  and  liable  to  be  called  to  distant  and  remote  places  by 
order  of  the  government,  and  thus  obliged  to  change  his  headquarters, 
had  no  residence  in  the  city  of  New  York,  and  when  stopping  at  a  hotel 
awaiting  orders,  with  the  right  to  leave  at  any  moment,  he  must  be 
regarded  as  a  transient  person  the  same  as  any  other  traveller  or  pas- 
senger. At  common  law  the  innkeeper  was  compelled  to  furnish 
lodgings  and  entertainment  for  travellers  and  passengers,  and  he  was 
bound  to  protect  the  property  they  brought  with  them  and  was  liable 
if  it  was  lost  or  injured.  (See  Mowers  v.  Fethers,  61  N.  Y.  34,  19  Am. 
Rep.  244.)  "  The  length  of  time  that  a  man  is  at  an  inn  makes  no  dif- 
ference, whether  he  stays  a  week  or  a  month  or  longer :  so  although  he 
is  not  strictly  transient,  he  retains  his  character  as  a  traveller,"  but  he 
may,  by  a  special  contract  to  board  and  sojourn,  make  himself  a 
boarder,  and  being  such  the  innkeeper  is  not  liable.  (Story  on  Bail., 
§  477  ;  2  Pars,  on  Contracts,  150  et  seq.)  The  decisions  have  not  been 
entirely  harmonious  as  to  whether  fixing  in  advance  the  price  to  be 
paid  and  the  length  of  the  stay  has  the  effect  in  law  to  constitute  such 
person  a  mere  boarder  or  lodger,  and  to  deprive  such  visitor  of  the 
character  of  guest.  There  are  numerous  decisions  in  the  books  of  recent 
date  which  hold  that  where  there  is  a  special  agreement  as  to  time  and 
price  that  does  not  absolutely  disturb  the  relationship  of  innkeeper 
and  guest.  (Pinkerton  v.  Woodward,  33  Cal.  557 ;  Berkshire  Woolen 
Co.  v.  Proctor,  7  Cush.  417  [232];  Norcross  v.  Norcross,  53  Me.  169; 
Walling  v.  Potter,  35  Conn.  183;  McDaniels  v.  Robinson,  26  Vt.  316; 
see,  also,  Parker  v.  Flint,  12  Mod.  255.)  These  cases  indicate  a  tendency 
in  the  courts  to  conform  the  old  rule  to  the  changes  made  in  hotel  keep- 
ing in  modern  times. 

We  are  referred  by  the  learned  counsel  for  the  appellants  to  numerous 
cases  to  sustain  the  doctrine  he  contends  for,  among  which  are :  Vance 
v.  Throckmorton  (5  Bush.  [Ky.]  41) ;  Manning  v.  Wells  (9  Humph. 
[Tenn.]  746) ;  Hursh  v.  Byers  (29  Mo.  469) ;  Pollock  v.  Landis  (36 
Iowa,  651) ;  Lusk  v.  Belote  (23  Minn.  468),  and  others.  A  careful 
examination  of  these  authorities  discloses  that  in  each  of  them  it  is 
very  apparent  that  the  relation  of  landlord  and  guest  did  not  exist,  and 
that  the  party  who  claimed  damages  of  the  innkeeper  was  in  every  case 
a  boarder  beyond  any  question,  and  that  in  most,  if  not  in  all  of  them, 
there  was  a  special  contract  as  to  time  and  price  which  established  that 
relationship.  None  of  them  are  analogous  to  the  case  at  bar,  and  in 
none  of  them  was  it  made  to  appear  that  the  plaintiffs'  occupation  was 
of  a  character  which  rendered  them  liable,  upon  call,  to  remove  from 
their  location  and  go  elsewhere.  Besides,  the  proof  shows  in  all  these 
cases  a  special  contract  which  could  not  be  terminated,  as  in  the  case 
at  bar,  at  any  moment,  or  which  was  liable  to  be  concluded  by  the  orders 
of  a  higher  authority.  The  cases  cited  are  therefore  not  in  point,  and 
cannot  control  the  decision  of  the  question  considered. 

It  must  be  borne  in  mind,  in  considering  the  question  discussed,  that 


ESSENTIAL    RELATION    OF    INNKEEPER   AND    GUEST.  1  i  5 

the  referee  refused  to  find  that  there  was  any  substantial  contract  tor 
plaintiff's  stay  at  the  hotel  and  that  he  found  differently,  and  hence  it 
may  well  be  held,  in  entire  harmony  with  the  cases  last  cited,  that  the 
fixing  of  the  price  did  not  change  the  relationship  of  the  parties  as  inn- 
keeper and  guest.     The  common-law  rule  which  fixes  the  liability  of 
an  innkeeper  to  his  guest  is  a  salutary  one  and  imposes  no  needless  hard- 
ship upon  him,  and  it  should  be  administered  according  to  its  spirit 
without  regard  to  technical  distinctions.     The  statute  (Chap.  421,  Laws 
of  1855)  was  enacted  for  the  benefit  of  the  innkeeper  and,  if  complied 
with,  furnishes  full  and  ample  relief  from  the  liability  incurred  under  the 
common  law.     The  defendants  here  failed  to  comply  with  the  statute  by 
their  neglect  to  conform  to  its  provisions  and  have  no  ground  to  com- 
plain when  made  amenable  for  such  failure.     It  is  no  hardship  in  the  law 
that  they  are  called  upon  to  answer  for  losses  occasioned  by  their  own 
neglect.    It  is  to  be  presumed  that  every  innkeeper  sufficiently  guards  the 
hotel  under  his  charge  so  as  to  protect  its  inmates  from  the  depreda- 
tions of  criminals.     When  they  fail  to  do  this  and  carelessly  omit  to 
notify  the  inmates  where  their  valuables  can  be  fully  protected,  no  rea- 
son exists  in  the  law  or  in  justice  why  they  should  not  respond  for  losses 
attributable  to  their  own  remissness.     The  defendants  here  were  mani- 
festly wrong  in  failing  to  comply  with  the  statute  cited,  and  as  they  have 
not  brought  themselves  within  any  rule  of  law  which  exempts  them  from 
the  liability  incurred  by  innkeepers  generally  in  their  relation  to  travel- 
lers and  guests,  we  are  unable  to  see  why  they  should  be  relieved  in  the 
case  at  bar. 

The  findings  of  the  referee  and  his  refusals  to  find  were  clearly  right, 
and  unless  some  error  exists  in  the  rulings  as  to  the  evidence,  they  should 
be  sustained. 

We  have  given  due  attention  to  the  other  questions  raised  and  can 
discover  no  ground  of  error  which  would  authorise  a  reversal  of  the 
judgment. 

The  judgment  should,  therefore,  be  affirmed. 

Ruger,  Ch.  J.,  Rapallo  and  Danforth,  JJ.,  concur;  Andrews, 
Earl  and  Finch,  JJ.,  dissent.  Judgment  affirmed. 


ORCHARD  v.   BUSH. 

[1898]     2  Q.  B.  284.     1898. 

Appeal  from  a  decision  of  the  judge  of  the  Liverpool  County  Court. 

The  action  was  for  damages  for  the  loss  of  a  coat.  The  material 
facts  proved  or  admitted  before  the  county  court  judge  were  as  follows 

The  defendants  were  innkeepers,  keeping  the  Royal  Court  Hotel. 
Liverpool.     Guests  were  accommodated  at  the  hotel   with  sleeping- 


176  INNKEEPERS. 

rooms  if  required ;  but  from  ninety  to  one  hundred  people,  who  were 
not  staying  at  the  hotel,  dined  in  it  every  day.  The  plaintiff,  who  was 
in  business  in  Liverpool  but  lived  outside  the  town,  went  to  the  hotel 
for  supper  about  9  o'clock  in  the  evening.  He  went  into  the  dining 
room  and  hung  his  overcoat  upon  a  hook  there,  where  coats  were  usually 
hung.  He  then  left  the  reom  for  a  short  time  to  speak  to  the  manageress 
of  the  hotel ;  returned  ;  had  his  supper,  and,  on  leaving  to  catch  a  train 
home,  found  that  his  coat  was  missing. 

The  court  judge  found  that  the  plaintiff  was  not  guilty  of  negligence 
in  leaving  the  coat  in  the  dining-room  temporarily  whilst  he  went  to 
speak  to  the  manageress. 

The  judge  also  found  that  the  plaintiff  was  a  guest  of  the  hotel  al- 
though he  only  came  in  for  supper,  and  held  that  the  defendants  were 
responsible  for  the  loss  of  the  coat,  and  accordingly  gave  judgment  for 
the  plaintiff  for  1/.  15s.,  its  value.     The  defendants,  by  leave,  appealed. 

Wills,  J.  I  am  of  opinion  that  this  appeal  should  be  dismissed.  The 
real  question  is  whether  there  was  any  evidence  to  justify  the  county 
court  judge  in  finding  that  the  plaintiff  was  a  guest  at  the  defendants' 
inn.  Taking  the  narrower  view,  contended  for  by  counsel  for  the  de- 
fendants, of  what  is  a  guest,  I  fail  to  understand  in  what  sense  he  was 
not  a  guest.  The  room  he  went  into  was  the  dining-room  of  the  hotel. 
It  is  said  that  in  order  to  make  him  a  guest  he  must  be  a  wayfarer  and 
traveller.  The  facts  are  that  he  was  on  his  way  home ;  he  was  on  his 
way  to  the  station  from  which  he  travelled  home  by"  railway.  Why 
was  he  not  a  wayfarer  ?  If  he  had  been  riding  to  his  home  on  horse- 
back along  a  country  road,  and  between  the  terminus  a  quo  and  the 
terminus  ad  quern  he  used  an  inn  for  the  purpose  of  getting  food  for 
himself  and  his  horse,  he  clearly  would  be  a  wayfarer  and  a  guest  at 
the  inn.  What  difference  does  it  make  that  he  was  not  riding,  as  100 
years  ago  he  probably  would  have  been,  but  that  he  was  walking  to 
the  railway  station  in  order  to  take  the  train,  and  on  the  way  called  at 
an  inn,  and  was  received  there  and  served  with  such  refreshment  as  he 
required  ?  But  I  do  not  take  the  more  restricted  view  of  what  consti- 
tutes a  guest  at  an  inn.  I  think  a  guest  is  a  person  who  uses  the  inn, 
either  for  a  temporary  or  a  more  permanent  stay,  in  order  to  take  what 
the  inn  can  give.  He  need  not  stay  the  night.  I  confess  I  do  not  under- 
stand why  he  should  not  be  a  guest  if  he  uses  the  inn  as  an  inn  for  the 
purpose  merely  of  getting  a  meal  there.  There  is  not  much  to  be  said, 
upon  the  authorities,  for  the  proposition  that  a  person,  in  order  to  be 
a  guest  at  the  inn,  must  be  a  wayfarer  or  traveller.  I  quite  agree  that 
in  olden  times  wayfarers  were  more  often  "guests"  than  anybody  else. 
The  innkeeper's  liability  is  said  to  arise  because  he  receives  persons 
causa  hospitandi.  I  cannot  see  why  he  receives  them  less  causa  hospi- 
tandi if  he  gives  them  refreshment  for  half  a  day,  receiving  them  in  the 
same  way  as  other  persons  are  received,  than  if  they  stay  the  night  at 
his  inn.     It  makes  no  difference  that  he  receives  a  large  number  of  peo- 


ESSENTIAL    RELATION    OF    INNKEEPER   AND    GUEST.  177 

pie  who  only  take  a  meal  at  the  inn.  He  does  receive  them,  and  as  an 
innkeeper,  and  his  liability  as  an  innkeeper  thereupon  attaches  in  respect 
of  them.  The  present  case  is  stronger  than  the  case  of  the  guest  in 
Bennett  v.  Mellor,  5  T.  R.  273.  There  the  person  held  to  be  a  guest 
went  to  the  inn  for  a  purpose  wholly  unconnected  with  the  busine 
the  innkeeper  as  an  innkeeper,  and,  whilst  waiting  for  his  answer  about 
the  business  he  had  come  upon,  sat  down  and  took  temporary  refresh- 
ment. He  was  treated  as  a  guest  of  the  inn  because  he  had  recei 
refreshment  in  a  public  room  which  was  part  of  the  inn  premises.  There 
is  nothing  in  the  report  of  the  case  to  shew  where  he  was  going  after  In- 
left  the  inn.  The  use  made  of  the  inn  by  the  plaintiff  in  the  present 
case  seems  much  more  like  use  as  a  guest  than  the  use  in  Bennett  v. 
Mellor,  5  T.  R.  273.  Our  decision  does  not  touch  the  point  which  would 
have  arisen  if  the  place  to  which  the  plaintiff  went  had  been  a  restaurant 
not  attached  to  or  part  of  the  hotel.  The  dining-room  here  was  used 
as  part  of  the  inn,  and  used  as  such  a  room  is  used.  What  was  supplied 
to  the  plaintiff  was  what  was  supplied  by  the  inkeeper  to  his  guests. 
I  am  of  opinion  that  there  was  abundant  evidence  to  support  the  find- 
ing of  the  county  court  judge.  This  appeal  must  be  dismissed. 
[Opinion  by  Kennedy,  J.,  omitted.] 


WALPERT  v.   BOHAN. 

126  Ga.  532 ;  55  S.  E.  181 ;   6L.R.  A.  N.  S.  828.     1906. 

Lumpkin,  J.  1.  If  one  keeps  an  inn,  and  also,  separate  from  the  inn, 
keeps  a  bath  house,  where  persons  bathing  in  the  sea  change  their  gar- 
ments and  leave  their  clothes,  he  is  not  chargeable  as  an  innkeeper  for 
property  stolen  from  the  bath  house.  Minor  v.  Staples,  71  Me.  316, 
36  Am.  Rep.  318.  In  the  opinion  in  this  case  it  is  said :  "We  are  not 
now  speaking  of  bathrooms  attached  to  or  kept  within  hotels,  but  of 
separate  buildings,  erected  upon  the  seashore,  and  used,  not  as  bath- 
rooms, but  as  places  in  which  those  who  bathe  in  the  sea  change  their 
garments  and  leave  their  clothes  and  other  valuables  while  so  bathing.'' 
In  Schouler's  Bailments  and  Carriers  (3  ed.),  §  280,  it  is  said:  "One 
who  keeps  a  public  house  may,  not  inconsistently,  carry  on  a  restaurant, 
cater  to  a  select  company,  serve  liquors  at  a  bar,  keep  a  shaving  saloon, 
or  permit  outside  parties  to  get  up  a  ball  on  his  premises ;  and,  as  to 
strangers  who  avail  themselves  of  such  extraneous  service,  he  is  no  inn- 
keeper at  all."  It  is  true  that  the  declaration  alleges  in  general  terms 
that  in  connection  with  the  inn,  and  as  a  part  of  it,  and  as  a  part  of  his 
business  at  that  place,  the  defendant  maintained  a  certain  bath  house, 
where  he  was  accustomed,  for  rent  or  hire,  to  furnish,  to  such  of  bis 
guests  and  the  general  public  as  desired  to  enjoy  the  pleasure  and  bene- 


178  INNKEEPERS. 

fits  of  sea  bathing,  bathrooms,  bathing  suits,  and  other  bathing  acces- 
sories. It  does  not  appear,  however,  that  the  bath  house  was  physi- 
cally connected  with  the  inn,  or  was  for  the  use  of  the  guests  as  such, 
or  that  becoming  a  guest  at  the  inn  entitled  one  to  use  the  bath  house, 
or  that  conducting  it  was  an  actual  part  of  innkeeping ;  but  apparently 
it  was  a  separate  and  distinct  building  on  the  seashore,  where  the  general 
public,  whether  guests  of  the  inn  or  not,  could  for  hire  obtain  dressing 
rooms  and  other  accessories  of  sea  bathing.  We  do  not  think  this  was 
sufficient  to  shew  the  relation  of  innkeeper  and  guest  existed  between  the 
proprietor  of  the  bath  house  and  those  who  went  there  for  the  purpose 
of  bathing  in  the  sea.  Although  the  proprietor  of  the  bath  house  may 
have  also  been  an  innkeeper,  operating  the  bath  house,  it  did  not  there- 
by become  a  part  of  the  innkeeping.  When  the  facts  set  forth  shew  that 
the  defendant,  in  reference  to  the  transaction  under  consideration, 
is  not  an  innkeeper,  merely  to  call  him  by  that  name  in  the  pleading 
does  not  determine  his  liability  as  that  of  an  innkeeper.  Ancient  com- 
mon-law definitions  of  an  inn  are  not  altogether  applicable  to  modern 
conditions  and  methods  of  travel  and  of  innkeeping.  Thus,  Lord 
Bacon  defines  an  innkeeper  to  be  "  a  person  who  makes  it  his  business 
to  entertain  travellers  and  passengers,  and  to  provide  lodgings  and 
necessaries  for  them  and  their  horses  and  attendants."  Bac.  Abr. 
title  "  Inns  and  Innkeepers,"  B.  Few  now  travel  with  horses  and 
attendants ;  nor  is  the  entertainment  of  transient  custom  confined  to 
actual  travellers.  A  very  good  definition  of  an  innkeeper  at  present  is 
"one  who  regularly  keeps  open  a  public  house  for  lodging  and  enter- 
taining transient  comers,  on  the  general  expectation  of  his  suitable 
recompense."  Schouler's  Bailments,  §§  279,  303.  If  the  proprietor 
of  a  hotel  should  also  furnish,  for  hire  by  his  guests  and  others,  boats 
for  rowing  and  sailing  on  a  river  or  lake,  or  should  maintain  a  public 
race  course,  or  golf  links,  or  a  baseball  park,  where  all  could  enter  by 
paying  an  admission  fee,  these  things  would  evidently  not  be  a  neces- 
sary part  of  keeping  an  inn,  although  they  might  furnish  attractive 
sports  which  would  give  pleasure  to  guests  and  others.  See  Bonner 
t.  Wellborn,  7  Ga.  296,  304  t  scq.;  16  Am.  &  Eng.  Enc.  L.  (2d  ed.), 
509. 

2,  3.  While  this  is  true,  we  think  the  presiding  judge  erred  in  dismiss- 
ing the  petition  on  general  demurrer.  In  Bird  v.  Everard,  4  Misc. 
Rep.  104,  23  N.  Y.  Supp.  1008,  it  was  held  that  the  proprietor  of  a  bath- 
ing establishment,  who  receives  from  his  patrons  the  sum  demanded 
for  the  privilege  of  a  bath  and  assumes  the  custody  of  their  wearing 
apparel  while  the  latter  are  enjoying  the  privileges  thereof,  becomes  a 
voluntary  custodian  of  the  patron's  apparel  for  profit  and  is  bound  to 
exercise  due  care  to  guard  against  loss  or  theft  by  others  having  access 
to  his  establishment  with  his  permission ;  and  for  any  loss  or  theft 
which  could  have  been  prevented  by  the  exercise  of  such  care,  such  pro- 
prietor is  answerable  in  damages.     See,  also,  Bunnell  v.  Stern,   122 


ESSENTIAL    RELATION    OF    INNKEEPER   AND    GUEST.  17!  I 

N.  Y.  539,  10  L.  R.  A.  481,  19  Am.  St.  Rep.  519,  25  N.  E.  910 ;  Tombler 
v.  Koelling,  60  Ark.  62,  27  L.  R.  A.  502,  46  Am.  St.  Rep.  146,  2S  S.  W. 
795;    Dilberto  v.  Harris,  95  Ga.  571,  23  S.  E.  112;   7  Am.  &  Eng.  Enc. 
Law  (2d  ed.),  321,  322,  and  notes.     The  proprietor  of  such  an  establi 
ment,  who  receives  the  apparel  or  valuables  of  a  bather  for  safe-k< 
while  the  customeris bathing, and  receives  a  consideration  for  this  and  | 
use  of  the  bathroom  or  dressing  room  and  accessories  to  t  lie  bath,  beii 
a  bailee  for  hire,  is  bound  to  use  ordinary  care,  and  is  liable  for  a  failure 
to  do  so.     The  declaration  sufficiently  alleged  negligence  on  the  part 
of  the  defendant  or  his  agent,  and  was  not  subject  to  a  general  demurrer. 

Judgvu  nl  rt  rrr.su/. 


PULLMAN  PALACE  CAR  CO.   v.   SMITH. 
73  111.  360  ;   24  Am.  R.  258.     1874. 

This  was  an  action  brought  by  Chester  M.  Smith,  appellee,  against 
the  Pullman  Palace  Car  Company,  appellant,  for  the  recovery  of  SI  180, 
claimed  to  have  been  lost  from  the  Pullman  sleeping  car  Missouri,  on 
the  night  of  December  17,  1872,  under  the  following  circumstances  : 
On  the  afternoon  of  Dec.  17,  1872,  appellee  started  from  his  home  in 
Oconomowoc,  Wis.,  for  a  point  in  Missouri  southwest  of  St.  Louis,  for 
the  purpose  of  buying  horses  and  mules.  He  purchased  a  ticket  through 
to  St.  Louis,  via  the  Milwaukee  and  St.  Paul  Railway,  to  Chicago,  thence 
to  St.  Louis  over  the  Alton  and  St.  Louis  Railway,  for  which  he  paid 
S15.25.  He  arrived  at  Chicago  about  eight  o'clock  in  the  evening  of 
the  same  day,  went  to  the  office  of  appellant  and  bought  a  sleeping-car 
ticket  from  Chicago  to  East  St.  Louis,  for  which  he  paid  the  sum  of  $2, 
and  took  a  berth  in  the  Pullman  car,  which  left  Chicago  for  St.  Louis 
at  rune  o'clock  p.m.  His  money,  $1180,  was  in  an  inside  vest  pocket, 
and  when  he  retired  for  the  night  the  vest  was  placed  under  his  pillow  ; 
in  the  morning  he  found  the  vest  as  he  left  it,  but  the  money  was  gone. 

On  behalf  of  the  Pullman  Palace  Car  Company,  it  appeared  that 
they  have  no  place  to  store  valuables,  and  that  their  agents  are  in- 
structed to  receive  no  parcels,  valuables,  or  money,  and  receive  no  pay 
for  baggage  or  valuables  of  any  kind,  but  only  to  take  pay  for  the  occu- 
pancy of  the  berths  ;  and  that  they  do  not  receive  packages,  valuables, 
or  money  from  passengers  on  the  car  to  take  charge  of.  Upon  the  back 
of  their  checks,  which  are  given  when  the  tickets  are  taken  up,  is 
printed  the  following  :  "Wearing  apparel  or  baggage,  placed  in  the  car. 
will  be  entirely  at  the  owner's  risk."  They  receive  into  their  cars  only 
those  who  have  a  first-class  passage  ticket,  or  a  proper  pass  from  the 
railroad  company;  passengers  secure  their  berths  for  a  particular  trip 
and  for  a  particular  berth  and  car,  paying  in  advance.  The  company 
has  no  interest  in  the  fare  paid  by  the  passenger  to  the  railroad  company 


180  INNKEEPERS. 

for  transportation,  and  the  railroad  company  has  no  interest  in  the  prices 
paid  the  Pullman  Palace  Car  Company  for  berths ;  the  latter  receive 
pay  for  sleeping  accommodations,  none  whatever  for  transportation. 
[Instructions  to  the  jury  are  omitted.] 

The  jury  returned  a  verdict  for  the  plaintiff  for  $277,  upon  which 
judgment  was  rendered,  to  reverse  which  the  Pullman  Palace  Car  Com- 
pany took  this  appeal. 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  Court :  — 

The  instructions  which  the  court  gave  to  the  jury  made  the  company 
responsible  as  insurer  for  the  safety  of  the  money,  imposing  upon  it 
the  severe  liability  of  an  innkeeper  or  common  carrier.  And  it  is  the 
position  which  appellee's  counsel  take,  that  the  relation  between  the 
parties  in  this  case  was  that  of  innkeeper  and  guest,  and  that  the  liability 
of  the  company  is  that  of  an  innkeeper. 

In  order  to  ascertain  whether  the  extraordinary  responsibility  claimed, 
here  exists,  it  becomes  important  to  inquire  into  the  nature  of  inns  and 
guests,  where  this  liability  was  imposed  by  the  common  law,  and  see 
whether  the  description  of  the  same  properly  applies  here. 

Kent,  in  defining  an  inn,  says  :  "  It  must  be  a  house  kept  open 
publicly  for  the  lodging  and  entertainment  of  travellers  in  general,  for 
a  reasonable  consideration.  If  a  person  lets  lodgings  only,  and  upon 
a  previous  contract  with  every  person  who  comes,  and  does  not  afford 
entertainment  for  the  public  at  large,  indiscriminately,  it  is  not  a 
common  inn."  2  Kent  Com.  595.  This  is  substantially  the  same 
definition  as  is  given  in  all  the  books  upon  the  subject. 

But  the  keeper  of  a  mere  coffee-house,  or  private  boarding  or  lodging 
house,  is  not  an  innkeeper,  in  the  sense  of  the  law.  Id.  596 ;  Dansey  v. 
Richardson,  3  Ellis  &  B.  144  (E.  C.  L.  vol.  77) ;  Holder  v.  Toulby,  98 
E.  C.  L.  254;  Kisten  v.  Hilderbrand,  9  B.  Munroe,  72  [167].  It  must 
be  a  common  inn,  that  is,  an  inn  kept  for  travellers  generally,  and  not 
merely  for  a  short  season  of  the  year,  and  for  select  persons  who  are 
lodgers.  Story  on  Bailm.,  §  475,  and  cases  cited  in  note.  The  duty 
of  innkeepers  extends  chiefly  to  the  entertaining  and  harbouring  of 
travellers,  finding  them  victuals  and  lodging,  and  securing  the  goods 
and  effects  of  their  guests ;  and,  therefore,  if  one  who  keeps  a  common 
inn  refuses  either  to  receive  a  traveller  as  a  guest  into  his  house,  or  to 
find  him  victuals  and  lodging,  upon  his  tendering  him  a  reasonable 
price  for  the  same,  he  is  not  only  liable  to  render  damages  for  the  injury 
in  an  action  on  the  case,  at  the  suit  of  the  party  grieved,  but  also  may  be 
indicted  and  fined  at  the  suit  of  the  king.  3  Bac.  Ab.  Inns  and  Inn- 
keepers, C.  The  custody  of  the  goods  of  his  guest  is  part  and  parcel 
of  the  innkeeper's  contract  to  feed,  lodge,  and  accommodate  the  guest 
for  a  suitable  reward.     2  Kent  Com.  592. 

From  the  authorities  already  cited,  it  is  manifest  that  this  Pullman 
palace  car  falls  quite  short  of  filling  the  character  of  a  common  inn,  and 
the  Pullman  Palace  Car  Company,  that  of  an  innkeeper. 


ESSENTIAL    RELATION    OF    INNKEEPER    AND   GUEST.  181 

It  does  not,  like  the  innkeeper,  undertake  to  accommodate  the  travel- 
ling public,  indiscriminately,  with  lodging  and  entertainment. 

It  only  undertakes  to  accommodate  a  certain  class,  those  who  have 
already  paid  their  fare  and  are  provided  with  a  first-class  ticket,  entit- 
ling them,  to  ride  to  a  particular  place. 

It  does  not  undertake  to  furnish  victuals  and  lodging,  but  lodging 
a!one,,as  we  understand.  There  is  a  dining  car  attached  to  the  train, 
as  shewn,  but  not  owned  by  the  Pullman  Company,  nor  run  by  them. 
It  belongs  to  another  company,  the  Chicago  and  Alton  Dining  Car 
Association.  Appellant,  as  we  understand,  furnishes  no  accommodation 
whatever,  save  the  use  of  the  berth  and  bed,  and  a  place  and  conveniences 
for  toilet  purposes.  We  would  not  have  it  implied,  however,  that  even 
were  these  eating  accommodations  furnished  by  appellant,  it  would 
vary  our  decision ;  but  the  not  furnishing  entertainment  is  a  lack  of 
one  of  the  features  of  an  inn. 

The  innkeeper  is  obliged  to  receive  and  care  for  all  the  goods  and 
property  of  the  traveller  which  he  may  choose  to  take  with  him  upon 
the  journey.  Appellant  does  not  receive  pay  for,  nor  undertake  to  care 
for,  any  property  or  goods  whatever,  and  notoriously  refuses  to  do  so. 
The  custody  of  the  goods  of  the  traveller  is  not,  as  in  the  case  of  the 
innkeeper,  accessory  to  the  principal  contract  to  feed,  lodge,  and  accom- 
modate the  guest  for  a  suitable  reward,  because  no  such  contract  is 
made. 

The  same  necessity  does  not  exist  here,  as  in  the  case  of  a  common 
inn.  At  the  time  when  this  custom  of  an  innkeeper's  liability  had  origin, 
wherever  the  end  of  the  day's  journey  of  the  wayfaring  man  brought 
him,  there. he  was  obliged  to  stop  for  the  night,  and  entrust  his  goods 
and  baggage  into  the  custody  of  the  innkeeper.  But  here,  the  traveller 
was  not  compelled  to  accept  the  additional  comfort  of  a  sleeping  car ; 
he  might  have  remained  in  the  ordinary  car ;  and  there  were  easy 
methods  within  his  reach  by  which  both  money  and  baggage  could  be 
safely  transported.  On  the  train  which  bore  him  were  a  baggage  and 
express  car,  and  there  was  no  necessity  of  imposing  this  duty  and  lia- 
bility on  appellant. 

It  cannot  be  supposed  that  any  such  measure  of  duty  or  liability 
attached  to  appellant,  as  is  declared  in  the  quotation  cited  from  Bacon's 
Abridgment  to  belong  to  an  innkeeper.  The  accommodation  furnished 
appellee  was  in  accordance  with  an  express  contract  entered  into  when 
he  bought  his  berth  ticket  at  Chicago,  which  was  for  the  use  of  a  specified 
couch  from  Chicago  to  St.  Louis,  and  appellant  did  not  render  a  service 
made  mandatory  by  law,  as  in  the  case  of  an  innkeeper. 

But  if  it  should  be  deemed  that,  on  principle  merely,  this  company 
would  be  required  to  take  as  much  care  of  the  goods  of  a  lodger,  as  an 
innkeeper  of  those  of  a  guest,  the  same  may  be  said  with  reference 
to  the  keeper  of  a  boarding-house,  or  of  a  lodging-house.  In  Dansey 
v.  Richardson,  supra,  where  the  innkeeper's  liability  was  refused  to  be 


182  INNKEEPERS. 

extended  to  a  boarding-house  keeper,  it  was  said  by  Coleridge,  J.  • 
"The  liability  of  the  innkeeper,  as,  indeed,  other  incidents  to  his 
position,  do  not,  however,  stand  on  mere  reason,  but  on  custom,  grow- 
ing out  of  a  state  of  society  no  longer  existing."  In  Holder  v.  Toulby, 
supra,  where  it  was  held  the  law  imposed  no  duty  upon  a  lodging-house 
keeper  to  take  due  care  of  the  goods  of  a  lodger,  Calye's  Case,  8  Co. 
Rep.  32  [163],  was  designated  as  fons  juris  upon  this  subject,  where  it 
was  expressly  resolved,  that,  though  an  innkeeper  is  responsible  for  the 
safety  of  the  goods  of  a  guest,  a  lodging-house  keeper  is  not.  And  in 
Parker  v.  Flint,  12  Mod.  255,  "  if,"  says  Lord  Holt,  "  one  come  to  an 
inn  and  make  a  previous  contract  for  lodging  for  a  set  time,  and  do 
not  eat  or  drink  there,  he  is  no  guest,  but  a  lodger,  and,  as  such,  is  not 
under  the  innkeeper's  protection  ;  but  if  he  eat  or  drink  there,  it  is 
otherwise,  or  if  he  pay  for  his  diet  there,  though  he  do  not  take  it  there." 

The  peculiar  liability  of  the  innkeeper  is  one  of  great  rigour,  and 
should  not  be  extended  beyond  its  proper  limits.  We  are  satisfied  that 
there  is  no  precedent  or  principle  for  the  imposition  of  such  a  liability 
upon  appellant. 

Appellant  is  not  liable  as  a  carrier.  It  made  no  contract  to  carry. 
Appellee  was  being  carried  by  the  railroad  company ;  and  if  appellant 
were  a  carrier,  it  would  not  be  liable  for  the  loss  in  this  case,  because 
the  money  was  not  delivered  into  the  possession  or  custody  of  appel- 
lant, which  would  be  essential  to  its  liability  as  carrier.  Town  v.  The 
Utica  and  Schenectady  Railroad  Co.,  7  Hill,  47.  In  2d  vol.  Redf. 
Am.  Railw.  Cases,  138,  it  is  said  :  "  But  it  has  never  been  claimed  that 
the  passenger  carrier  is  responsible  for  the  acts  of  pickpockets  at  their 
stations,  or  upon  steamboats  and  railway  carriages." 

It  would  be  unreasonable  to  make  the  company  responsible  for  the 
loss  of  money  which  was  never  entrusted  to  its  custody  at  all,  of  which 
it  had  no  information,  and  which  the  owner  had  concealed  upon  his 
own  person.  The  exposure  to  the  hazard  of  liability  for  losses  through 
collusion,  for  pretended  claims  of  loss  where  there  would  be  no  means 
of  disproof,  would  make  the  responsibility  claimed  a  fearful  one.  Ap- 
pellee assumed  the  exclusive  custody  of  his  money,  adopted  his  own 
measures  for  its  safe-keeping  by  himself,  and  we  think  his  must  be  the 
responsibility  of  its  loss. 

We  hold  the  instruction  to  be  erroneous,  and  the  judgment  of  the 
court  below  will  be  reversed,  and  the  cause  remanded. 

Judgment  reversed. 


DUTY    AS    TO    GUESTS    PERSONAL    SAFETY.  183 

3.   DUTY  AS  TO   GUEST'S  PERSONAL  SAFETY. 

GILBERT  v.   HOFFMAN. 
66  Iowa,  205  ;   23  N.  W.  R.  632  ;   55  Am.  R.  263.     1885. 

Defendants  are  the  keepers  of  a  hotel,  and  plaintiff  was  a  guest  at 
their  house,  and  while  there  contracted  the  small-pox.  She  broughl 
this  action  to  recover  damages  sustained  by  her  in  consequence  of  the 
sickness  caused  by  said  disease.  She  alleged  in  her  petition  thai 
defendants  represented  to  her  that  their  hotel  was  a  desirable  place 
for  guests,  and  that  it  was  free  from  small-pox,  and  that  there  was  no 
person  in  said  hotel  who  was  infected  with  that  disease,  and  that, 
relying  upon  the  truth  of  these  representations,  she  consented  to  be- 
come a  guest  at  said  hotel.  But  she  alleges  that  the  representations 
were  false,  and  were  known  by  defendants  to  be  false  when  they  made 
them,  and  that  the  disease  was  then  in  the  hotel,  and  that  there  was 
a  person  then  in  the  house  who  was  afflicted  with  the  disease.  These 
allegations  are  all  denied  by  the  defendants  in  their  answer.  There 
was  a  verdict  and  judgment  for  plaintiff,  and  defendants  appeal. 

Reed,  J.  [Portions  of  opinion  relating  to  questions  of  practice 
omitted.] 

III.  The  evidence  given  on  the  trial  shows  that  plaintiff  arrived  by 
train  at  the  town  in  which  the  defendants'  hotel  was  situated,  at  about 
three  o'clock  in  the  morning.  She  was  met  at  the  depot  by  her  hus- 
band, who  had  been  stopping  for  a  number  of  days  at  the  hotel,  and 
she  accompanied  him  to  the  house,  and  remained  there  as  a  guest  until 
evening  of  the  next  day,  when  the  hotel  was  closed  and  "quarantined" 
by  the  authorities  of  the  town ;  that  is,  the  inmates  of  the  house  were 
not  permitted  to  depart  from  it,  except  as  they  were  removed  to  the 
pest-house  when  they  were  taken  with  the  disease ;  and  the  public  was 
excluded  from  it.  When  she  went  to  the  house,  one  of  the  guests  was 
lying  sick  in  a  room  in  the  house,  and  his  disease  proved  to  be  the  small- 
pox. He  was  examined  by  the  physician  the  day  before  plaintiff  ar- 
rived at  the  hotel,  and  there  was  evidence  tending  to  prove  that  the 
physician  then  pronounced  the  disease  small-pox,  and  informed  defend- 
ants that  that  was  its  character.  There  is  a  conflict  in  the  evidence, 
it  is  true,  as  to  the  time  when  defendants  were  informed  as  to  the  char- 
acter of  the  disease  with  which  this  person  was  afflicted,  but  the  jury 
were  warranted  in  finding  that  the  information  was  communicated  to 
them  on  the  day  before  plaintiff's  arrival  at  the  hotel.  There  was  also 
evidence  tending  to  prove  that,  in  a  conversation  a  few  hours  after  her 
arrival,  one  of  the  defendants  assured  her  husband  in  her  presence  that 
the  disease  was  not  in  the  house,  and  that  the  rumours  that  the  person 
who  was  sick  in  the  house  had  small-pox  were  circulated  for  the  purpose 
of  injuring  the  business  of  the  hotel.     While  plaintiff's  husband  was 


184  INNKEEPERS. 

at  the  depot  awaiting  her  arrival,  he  was  informed  that  a  rumour  was 
current  that  the  disease  was  in  the  house,  and  he  informed  her  of  this 
before  she  went  there. 

Counsel  for  appellants  contend  that  this  evidence  did  not  warrant 
the  jury  in  finding  for  the  plaintiff,  because  (1)  it  does  not  shew  that 
defendants  were  guilty  of  such  negligence  as  renders  them  liable ;  and 
(2)  that  plaintiff,  by  going  to  the  house  after  she  was  informed  of  the 
rumour  which  was  current  as  to  the  presence  of  the  disease,  and  without 
instituting  an  inquiry  as  to  its  truth,  was  guilty  of  such  contributory 
negligence  as  precludes  a  recovery.  But  this  position  cannot  be  main- 
tained. The  jury,  as  we  have  seen,  were  warranted  by  the  evidence  in 
finding  that  defendants,  with  knowledge  of  the  prevalence  of  the  disease 
in  the  hotel,  kept  it  open  for  business,  and  permitted  plaintiff  to  become 
a  guest,  without  informing  her  of  the  presence  of  the  disease.  That 
they  would  be  liable  to  one  who  became  their  guest  under  these  circum- 
stances, and  contracted  the  disease  while  in  their  house,  and  who  was 
himself  guilty  of  no  negligence  contributing  to  the  injury,  there  can 
be  no  doubt. 

The  district  court  properly  left  it  to  the  jury  to  determine  whether 
plaintiff  was  guilty  of  imprudence  or  negligence  in  going  to  the  hotel 
after  she  heard  the  rumour  that  the  disease  was  in  the  house,  without 
inquiring  further  as  to  its  truth ;  and  they  were  told  that,  if  the  cir- 
cumstances were  such  as  that  ordinary  prudence  and  care  demanded 
that  she  should,  before  going  to  the  hotel,  make  further  inquiry  as  to 
the  truth  of  the  rumour,  and  she  neglected  to  do  this,  and  this  neglect 
contributed  to  the  injury,  she  could  not  recover.  The  instruction  states 
the  rule  on  the  subject  quite  as  favourably  to  the  defendants  as  they 
had  the  right  to  demand.  By  keeping  their  hotel  open  for  business, 
they  in  effect  represented  to  all  travellers  that  it  was  a  reasonably  safe 
place  at  which  to  stop ;  and  they  are  hardly  in  a  position  now  to  insist 
that  one  who  accepted  and  acted  on  this  representation,  and  was  in- 
jured because  of  its  untruth,  shall  be  precluded  from  recovering  against 
them  for  the  injury,  on  the  ground  that  she  might  by  further  inquiry 
have  learned  of  its  falsity.  But  the  jury  were  warranted  by  the  evi- 
dence in  finding  that  she  was  not  guilty  of  negligence  in  not  inquiring 
further  as  to  the  truth  of  the  rumour  before  going  to  the  hotel.  Her 
husband,  who  informed  her  of  the  rumour,  had  been  stopping  at  the 
hotel  for  two  or  three  days,  and  had  heard  nothing  while  about  the 
house  of  the  prevalence  of  the  disease.  The  information  as  to  the 
currency  of  the  rumour  was  communicated  to  him  at  the  depot  while 
he  was  awaiting  the  arrival  of  the  train.  The  jury  might  well  have 
concluded  that  under  the  circumstances  she  was  justified  in  assuming 
that  the  rumour  was  not  of  such  importance  as  to  demand  further 
investigation. 

IV.  Appellants  assign  as  error  the  refusal  of  the  court  to  give  certain 
instructions  asked  by  them.     The  rule  announced  in  these  instructions 


DUTY    AS    TO    GUEST'S    PERSONAL   SAFETY.  185 

is  substantially  the  same  as  that  given  in  the  instruction  referred  to  in 
the  foregoing  paragraph  of  this  opinion.  We  need  not  inquire  whether 
they  correctly  express  the  law,  as  substantially  the  same  doctrine  was 
given  by  the  court  in  the  instruction  given  on  its  own  motion.  Defend- 
ants have  no  ground  of  complaint  because  of  the  refusal  to  give  them. 

Affirmed. 


CLANCY  v.   BARKER. 
131  Fed.  161 ;   66  C.  C.  A.  469.     1904. 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Nebraska. 

Before  Sanborn,  Thayer,  and  Hook,  Circuit  Judges. 

Sanborn,  Circuit  Judge.  This  case  was  determined  in  the  lower 
court  on  a  demurrer  to  the  evidence ;  the  trial  court  holding,  on  the 
conclusion  of  the  plaintiff's  testimony,  that  there  was  no  substantial 
evidence  warranting  a  recovery.  It  accordingly  directed  a  verdict  in 
favour  of  the  defendants.  This  action  was  taken  on  testimony  which 
tended  to  establish,  and  did  establish,  the  following  facts  :  — 

Freeman  Clancy,  in  whose  behalf  the  action  is  brought,  at  the  time 
of  the  accident  hereafter  described,  was  about  six  years  old,  and  was 
stopping  with  his  parents  at  the  Barker  Hotel,  in  the  city  of  Omaha, 
Neb. ;  the  father,  mother,  and  son  having  been  guests  at  the  hotel  for 
a  few  days  prior  to  the  accident.  During  the  evening  of  January  15, 
1902,  about  8.30  p.m.,  he  went  down  the  elevator  from  one  of  the  upper 
floors,  where  the  room  occupied  by  his  parents  was  located,  to  the 
ground  floor  of  the  hotel  for  the  purpose,  as  he  says,  of  getting  some  ice 
water.  Reaching  the  ground  floor,  he  passed  by  a  room  where  some 
one  was  playing  a  harmonica.  The  door  being  ajar,  he  entered  this 
room,  actuated,  apparently,  by  no  other  motive  than  childish  curiosity, 
and  found  a  boy,  who  was  employed  about  the  hotel  either  as  a  bell  boy 
or  porter,  engaged  in  playing  the  instrument.  Another  boy  who  ran 
the  hotel  elevator  was  also  in  the  room.  Both  of  these  employes  of 
the  hotel  seem  to  have  been  off  duty  at  the  time,  and  engaged  in  amus- 
ing themselves  in  a  room  that  was  not  occupied  by  guests.  As  the 
boy  Clancy  entered  the  room,  the  boy  who  was  playing  the  harmonica 
said  to  him,  evidently  in  jest,  "See  here,  young  fellow;  if  you  touch 
anything,  here  is  what  you  will  get,"  at  the  same  time  pointing  a  pistol 
at  him.  The  pistol  was  accidentally  discharged,  the  ball  striking  the 
boy  in  the  head,  fracturing  "the  frontal  ethnoid  and  sphenoid  boi  ea 
of  the  head,"  and  destroying  one  of  his  eyes.  The  ball  also  passed 
through  the  boy's  thumb,  but  the  injury  did  not  prove  fatal. 

One  paragraph  of  the  complaint,  on  which  the  case  was  tried,  al- 
leged :  — 


186  INNKEEPERS. 

"That  on  or  about  the  12th  day  of  January,  1902,  the  said  father  and 
mother  of  the  plaintiff  entered  the  said  hotel  of  defendant  with  their  said 
infant  child,  the  plaintiff,  as  guests  of  defendant,  for  a  temporary  rest  in 
said  city  at  said  hotel,  and  were  received  by  the  said  defendants  as  the  guests 
of  the  said  innkeepers  or  hotel  keepers ;  the  defendants  thereby  contract- 
ing with  the  said  father  for  and  on  behalf  of  said  plaintiff,  and  with  the  plain- 
tiff by  implication  of  law,  for  his  personal  safety,  kind  treatment,  and  for 
all  of  the  usual  hospitalities,  covenants,  and  agreements,  and  obligations 
due  from  an  innkeeper  and  hotel  keeper  to  his  guests." 

Another  paragraph  of  the  complaint  alleged,  in  substance,  that  it 
was  the  duty  of  the  bell  boy  or  porter,  through  whose  acts  as  aforesaid 
the  injury  was  sustained  — 

"To  direct  the  guests  of  said  hotel  about  said  hotel,  and  to  wait  on,  watch 
over,  and  protect  said  guests  and  their  property  and  the  property  of  the 
said  hotel,  and  such  other  duties  as  are  usually  required  of  porters  by  inn- 
keepers or  hotel  keepers,  and  imposed  by  law." 

Another  paragraph  of  the  complaint  alleged  that  said  bell  boy  or 
porter,  being  a  servant  of  the  defendants  and  of  said  hotel,  in  that 
capacity,  by  the  acts  heretofore  described  — 

"Violated  all  obligations  of  hospitality  and  patience  due  from  said  de- 
fendants, through  said  servants,  to  said  infant  guest,  and  the  defendants 
thereby  violated  their  agreement,  duty,  and  obligation  of  law  with  and  to 
the  plaintiff." 

On  this  state  of  facts  and  pleading,  counsel  for  the  plaintiff  in  error 
asserts  a  right  of  recovery  against  the  defendants  on  two  grounds : 
First,  he  contends  that  by  receiving  the  boy  and  his  parents  as  guests 
at  the  hotel  the  proprietors  of  the  hotel  undertook,  like  a  common 
carrier  of  passengers,  to  protect  him  against  injuries  occasioned  by  the 
negligence  or  wilful  misconduct  of  their  employes  in  and  about  the 
hotel,  and  that  this  contractual  obligation  of  the  defendants  was  vio- 
lated. In  the  second  place,  counsel  contends  that  when  Lacey,  the 
porter,  pointed  the  pistol  at  the  boy,  he  was  guilty  of  a  wrongful  and 
negligent  act ;  that  he  was  engaged  at  the  time  in  the  performance  of 
one  of  his  duties  as  servant ;  and  that  on  this  ground  the  defendants 
are  liable.  It  is  argued  that  it  was  a  part  of  Lacey's  duty  as  a  servant, 
when  the  child  entered  the  room  where  he  was  playing  the  harmonica, 
to  see  that  he  did  not  disturb  or  handle  any  articles  in  the  room ;  that 
a  jury  might  well  infer  that  the  act  which  occasioned  the  injury  was 
done  by  Lacey  in  the  performance  of  this  duty ;  and  that  the  ordinary 
rule,  "Respondeat  superior,"  applies  to  the  case. 

We  entertain  no  doubt  that  the  act  in  question  was  in  fact  wrongful 
and  negligent,  but  the  difficulty  which  we  encounter  in  upholding  this 
latter  theory  is  that  the  evidence  fails  to  show  that  Lacey  had  been 
charged  with  the  duty  of  guarding  such  articles  as  may  have  been  in  the 
room  where  the  accident  occurred,  or  that  the  room  contained  any 


DUTY  AS  TO  GUEST  S  PERSONAL  SAFETY.  ]  S7 

articles  which  the  child  could  have  injured  or  carried  away,  or  thai 
had  made  any  movement  in  that  direction.  All  this  is  mere  surnii 
which  will  not  suffice  to  sustain  a  verdict.  So  far  as  the  evidence  war- 
rants an  inference,  the  inference  is  that  Lacey  was  not  engaged  at  tin- 
time  in  the  discharge  of  any  duty  for  and  in  behalf  of  the  defendant 
that  he  was  temporarily,  at  least,  off  duty,  engaged  in  amusing  him- 
self; and  that  he  pointed  the  pistol  at  the  child  in  sport,  to  see  how  he 
would  act,  rather  than  to  prevent  him  from  touching  or  intermeddling 
with  anything  in  the  room.  The  act  in  question  seems  to  have  been 
prompted  by  a  momentary  impulse,  and  to  have  been  done  by  Lacey 
for  his  own  amusement,  and  to  have  been  in  no  wise  connected  with 
the  discharge  of  any  duty  or  with  the  performance  of  any  task  that  had 
been  devolved  upon  him  by  the  defendants.  Under  these  circumstances 
we  are  of  opinion  that  the  proprietors  of  the  hotel  cannot  be  held 
accountable  for  the  act  in  question  on  the  second  ground  above  stated, 
since  it  is  too  well  settled  to  require  the  citation  of  any  authority  that 
the  master  is  not  responsible  ordinarily  for  the  negligent  acts  of  his 
servant,  unless  they  are  committed  while  the  servant  is  rendering  some 
service  for  and  in  behalf  of  the  master. 

But  counsel  for  the  plaintiff  insists  that,  although  the  defendants  were 
not  negligent  in  the  employment  of  their  servant,  the  bell  boy,  and 
although  he  was  not  acting  in  the  course  or  within  the  actual  or  apparent 
scope  of  his  employment  when  he  discharged  the  pistol,  yet  the  defend- 
ants are  liable  for  the  injury  he  inflicted,  because  it  is  a  part  of  the 
contract  between  an  innkeeper  and  his  guest  that  the  former  will  insure 
the  safety  of  the  person  of  the  latter  against  injury  from  every  act  or 
omission  of  his  servants.  The  crucial  question  here,  therefore,  is 
whether  or  not  an  innkeeper  is  an  insurer  of  the  safety  of  the  person 
of  his  guest  while  the  latter  remains  in  his  hotel  against  the  negligent 
and  wilful  acts  of  his  servants,  when  they  are  acting  without  the  course 
and  without  the  actual  or  apparent  scope  of  their  employment. 

An  affirmative  answer  to  this  question  would  be  in  conflict  with  the 
decisions  of  the  courts  rendered  prior  to  the  time  when  the  contract 
herein  was  made,  and  to  our  understanding  of  the  law  upon  this  sub- 
ject as  it  then  existed.  The  general  rule  of  law  governing  the  liability 
of  innkeepers  when  these  defendants  made  their  agreement  with  the 
plaintiff,  the  rule  which  had  received  the  approval  of  every  court  which 
had  ever  decided  the  question,  so  far  as  we  have  been  able  to  discover, 
was  that  an  innkeeper  was  not  an  insurer  of  the  safety  of  the  person  of 
his  guest  against  injury,  but  that  his  obligation  was  limited  to  the 
exercise  of  reasonable  care  for  the  safety,  comfort,  and  entertainment 
of  his  visitor.  Calye's  Case,  4  Coke,  202,  200  [1631;  Sandys  v.  Flor- 
ence, 47  L.  J.  C.  P.  L.  598;  Weeks  v.  McNulty,  101  Tenn.  499,  4S 
S.  W.  809,  43  L.  R.  A.  185,  70  Am.  St.  Rep.  G93 ;  Curtis  v.  Dinneen, 
[4  Dak.  245]  30  N.  W.  148,  153  ;  Sheffer  v.  Willoughby,  163  111.  5 1 8,  52 1 . 
522,  45  N.  E.  253,  34  L.  R.  A.  464,  54  Am.  St.  Rep.  483 ;    Gilbert  v. 


188  INNKEEPERS. 

Hoffman,  66  Iowa,  206,  23  N.  W.  632,  55  Am.  Rep.  263  [183] ;  Over- 
street  v.  Moser,  88  Mo.  App.  72,  75;  Stanley  v.  Bircher's  Ex'r,  78 
Mo.  245,  248;  Stott  v.  Churchill  (Com.  PL),  36  N.  Y.  Supp.  476,  477; 
Sneed  v.  Morehead,  70  Miss.  690,  13  South.  235. 

In  another  class  of  cases,  those  involving  the  liability  of  common 
carriers  and  of  the  operators  of  palace  cars  to  their  passengers,  this 
measure  of  liability  has  in  later  years  been  extended  to  include  respon- 
sibility for  the  wilful  and  negligent  acts  of  those  to  whom  the  carriers 
entrust  the  transportation  of  their  passengers,  such  as  brakemen,  por- 
ters, and  conductors,  upon  the  ground  that  these  servants,  when  upon 
the  trains  or  steamboats,  are  engaged  in  the  course  or  scope  of  their 
employment  to  conduct  the  safe  transportation  of  the  passengers, 
whatever  they  may  be  doing.  The  reasons  for  this  extension  of  lia- 
bility are  well  stated  in  Bass  v.  Chicago  &  Northwestern  Ry.  Co.,  36 
Wis.  450,  at  page  463,  17  Am.  Rep.  495,  and  in  Mallach  v.  Ridley 
(Sup.),  9  N.  Y.  Supp.  922,  2  Abb.  N.  C.  181. 

In  the  former  case  the  court  said  :  — 

"These  officers  [the  conductors  and  other  servants  in  charge  of  the  train] 
may  be  guilty  of  acts  of  arbitrary  oppression,  beyond  endurance,  towards 
passengers,  which  might  warrant  resistance.  But  we  feel  warranted  by 
principle  and  authority  to  hold  that,  in  the  enforcement  of  order  on  the 
train,  and  in  the  execution  of  reasonable  regulations  for  the  safety  and  com- 
fort of  the  passengers,  and  for  the  security  of  the  train,  the  authority  of 
these  officers,  exercised  upon  the  responsibility  of  the  corporations,  must 
be  obeyed  by  passengers,  and  that  forcible  resistance  cannot  be  tolerated. 
They  act  on  the  peril  of  the  corporation,  and  their  own.  Indeed,  as  that 
fictitious  entity,  the  corporation,  can  act  only  through  natural  persons,  its 
officers  and  servants,  and  as  it  of  necessity  commits  its  trains  absolutely 
to  the  charge  of  officers  of  its  own  appointment,  and  passengers  of  necessity 
commit  to  them  their  safety  and  comfort  in  transitu,  under  conditions  of 
such  peril  and  subordination,  we  are  disposed  to  hold  that  the  whole  power 
and  authority  of  the  corporation,  pro  hac  vice,  is  vested  in  these  officers, 
and  that,  as  to  passengers  on  board,  they  are  to  be  considered  as  the  cor- 
poration itself,  and  that  the  consequent  authority  and  responsibility  are 
not  generally  to  be  straitened  or  impaired  by  any  arrangement  between  the 
corporation  and  the  officers ;  the  corporation  being  responsible  for  the  acts 
of  the  officers,  in  the  conduct  and  government  of  the  train,  to  the  passen- 
gers travelling  by  it,  as  the  officers  would  be  for  themselves,  if  they  were 
themselves  the  owners  of  the  road  and  train.  We  consider  this  rule  essen- 
tial to  public  convenience  and  safety,  and  sanctioned  by  great  weight  of 
authority." 

In  the  latter  case  the  court  declared  :  — 

"It  was  long  held  by  the  courts  that  a  common  carrier  was  not  liable  for 
a  wilful  assault  by  one  of  its  employes  upon  a  passenger.  This  rule,  how- 
ever, has  been  abrogated  upon  the  theory  that  the  carrier  invites  the  pas- 
senger to  subject  himself  to  the  protection  and  care  of  the  employes  of  the 


DUTY  AS  TO  GUEST  S  PERSONAL  SAFETY.  189 

corporation,  and  under  these  circumstances  the  common  carriers  should 
be  responsible  for  all  the  acts  of  the  subordinates  toward  the  passengers 
while  under  his  custody  and  control." 

Counsel  for  the  plaintiff  insists  that  the  liability  of  the  innkeepers 
should  be  extended  in  the  case  at  bar  even  beyond  that  of  common 
carriers,  so  that  the  defendants  should  be  held  liable  for  the  injuries 
inflicted  by  the  wilful  or  careless  act  of  their  servant  when  he  was 
not  acting  within  the  course  or  scope  of  his  employment.  The  argu- 
ment in  support  of  this  contention  is  that  common  carriers  arc  liable 
for  the  negligent  or  wilful  acts  of  their  servants  to  whom  they  entrusl 
the  care,  custody,  and  control  of  the  passengers  they  transport,  and 
that  the  liability  of  innkeepers  to  their  guests  is  similar  to  that  of  car- 
riers to  their  passengers.  There  are  many  reasons,  however,  why 
this  argument  is  not  persuasive,  and  why  it  fails  to  demonstrate  that 
an  innkeeper  insures  the  safety  of  the  persons  of  his  guests  against 
injuries  inflicted  by  his  servants  when  they  are  not  engaged  in  the  dis- 
charge of  their  duties  as  employes. 

While  there  are  many  loose  statements  in  the  books  to  the  effect  that 
the  liability  of  common  carriers  to  their  passengers  and  the  liability  of 
innkeepers  to  their  guests  are  similar,  and  while  that  proposition  may 
be  conceded,  it  is  certain  that  the  limits  of  these  liabilities  are  by  no 
means  the  same.  A  railroad  company  is  liable  to  its  passengers  for  a 
failure  to  exercise  the  utmost  care  in  the  preparation  of  its  road  and  the 
operation  of  its  engines  and  trains  upon  it,  because  the  swift  movement 
of  its  passenger  trains  is  always  fraught  with  extraordinary  danger, 
which  it  requires  extraordinary  care  to  avert.  But  an  innkeeper's 
liability  for  the  condition  and  operation  of  his  hotel  is  limited  to  the 
failure  to  exercise  ordinary  care,  because  his  is  an  ordinary  occupation 
fraught  with  no  extraordinary  danger.  Sandys  v.  Florence,  47  L.  J. 
C.  P.  L.  598,  600.  It  no  more  follows,  from  the  similarity  of  the  lia- 
bility of  the  carrier  to  that  of  the  innkeeper,  that  the  latter  is  liable 
for  the  wilful  or  negligent  acts  of  its  servants  beyond  the  scope  of 
their  employment,  than  it  does  that  the  latter  is  liable  for  a  failure  to 
exercise  the  highest  possible  care  to  make  his  hotel  and  its  operation 
safe  for  its  guests,  because  the  carrier  must  exercise  that  degree  of  care 
in  the  management  of  its  railroad,  engines  and  trains. 

Again,  there  is  a  marked  difference  in  the  character  of  the  contracts 
of  carriage  on  a  railroad  or  steamboat  and  of  entertainment  at  an  inn, 
and  a  wide  difference  in  the  relations  of  the  parties  to  these  contract s. 
In  the  former,  the  carrier  takes  and  the  passenger  surrenders  to  him  the 
control  and  dominion  of  his  person,  and  the  chief,  nay,  practically  tin- 
only,  occupation  of  both  parties  is  the  performance  of  the  contract  ol 
carriage.  For  the  time  being  all  other  occupations  are  subordinate  to 
the  transportation.  The  carrier  regulates  the  movements  of  the 
passenger,  assigns  him  his  seat  or  berth,  and  determines  when.  how. 
and  where  he  shall  ride,  eat,  and  sleep,  while  the  passenger  snl.tnits 


190  INNKEEPERS. 

to  the  rules,  regulations,  and  directions  of  the  carrier,  and  is  trans- 
ported in  the  manner  the  latter  directs.  The  contract  is  that  the 
passenger  will  surrender  the  direction  and  dominion  of  his  person  to 
the  servants  of  the  carrier,  to  be  transported  in  the  car,  seat,  or  berth 
and  in  the  manner  in  which  they  direct,  and  that  the  latter  will  take 
charge  of  and  transport  the  person  of  the  passenger  safely.  The  logi- 
cal and  necessary  result  of  this  relation  of  the  parties  is  that  every  ser- 
vant of  the  carrier  who  is  employed  in  assisting  to  transport  the  pas- 
senger safely,  every  conductor,  brakeman,  and  porter  who  is  employed 
to  assist  in  the  transportation,  is  constantly  acting  within  the  scope  and 
course  of  his  employment  while  he  is  upon  the  train  or  boat,  because 
he  is  one  of  those  selected  by  his  master  and  placed  in  charge  of  the 
person  of  the  passenger  to  safely  transport  him  to  his  destination. 
Any  negligent  or  wilful  act  of  such  a  servant  which  inflicts  injury  upon 
the  passenger  is  necessarily  a  breach  of  the  master's  contract  of  safe 
carriage,  and  for  it  the  latter  must  respond.  But  the  contract  of  an 
innkeeper  with  his  guest,  and  their  relations  to  each  other,  are  not  of 
this  character.  The  innkeeper  does  not  take,  nor  does  the  guest  sur- 
render, the  control  or  dominion  of  the  latter's  person.  The  performance 
of  the  contract  of  entertainment  is  not  the  chief  occupation  of  the 
parties,  but  it  is  subordinate  to  the  ordinary  business  or  pleasure  of  the 
guest.  The  innkeeper  assigns  a  room  to  his  guest,  but  neither  he  nor 
his  servants  direct  him  when  or  how  he  shall  occupy  it ;  but  they  leave 
him  free  to  use  or  to  fail  to  use  it,  and  all  the  other  means  of  entertain- 
ment proffered,  when  and  as  he  chooses,  and  to  retain  the  uncontrolled 
dominion  of  his  person  and  of  his  movements.  The  agreement  is  not 
that  the  guest  shall  surrender  the  control  of  his  person  and  action  to 
the  servants  of  the  innkeeper,  in  order  that  he  may  be  protected  from 
injury  and  entertained.  It  is  that  the  guest  may  retain  the  direction 
of  his  own  action,  that  he  may  enjoy  the  entertainment  offered,  and 
that  the  innkeeper  will  exercise  ordinary  care  to  provide  for  his  comfort 
and  safety.  The  servants  of  the  innkeeper  are  not  placed  in  charge 
of  the  person  of  the  guest,  to  direct,  guide,  and  control  his  location  and 
action,  nor  are  they  employed  to  perform  any  contract  to  insure  his 
safety ;  but  they  are  engaged  in  the  execution  of  the  agreement  of  the 
master  to  exercise  ordinary  care  for  the  comfort  and  safety  of  the 
visitor.  The  natural  and  logical  result  of  this  relation  of  the  parties 
is  that  when  the  servants  are  not  engaged  in  the  course  or  scope  of  their 
employment,  although  they  may  be  present  in  the  hotel,  they  are  not 
performing  their  master's  contract,  and  he  is  not  liable  for  their  negli- 
gent or  wilful  acts. 

Moreover,  the  authorities  in  the  cases  involving  the  liability  of  com- 
mon carriers,  of  owners  of  palace  cars,  of  steamboats,  and  of  theatres, 
upon  which  counsel  for  the  plaintiff  seems  to  rely,  when  carefully  ex- 
amined, are  found  to  be  cases  in  which  the  servants  were  acting  within 
the  course  or  scope  of  their  employment,  and  they  do  not  rest  upon  the 


DUTY   AS    TO    GUEST'S    PERSONAL   SAFETY.  191 

proposition  that  the  defendants  in  those  cases  were  liable  for  the  wilful 
or  negligent  acts  of  their  employes  beyond  that  scope. 

In  Dwindle  v.  New  York  Central,  etc.  R.  Co.,  120  X.  Y  117  1^6 
127,  24  N.  E.  319,  8  L.  R.  A.  224,  17  Am.  St.  Rep.  611,  the  porter  of 
a  sleeping  car,  who  had  taken  up  the  ticket  of  a  passenger,  was  held 
to  be  acting  within  the  scope  of  his  employment  when  he  struck  the 
passenger  during  an  altercation  between  them  relative  to  the  return  of 
the  ticket. 

In  Stewart  v.  Brooklyn,  etc.,  R.  Co.,  90  N.  Y.  588,  591,  43  Am.  Rep. 
185,  the  court  declared  the  limit  of  the  company's  liability  to  be  "to 
protect  the  passenger  against  any  injury  arising  from  the  negligence  or 
wilful  misconduct  of  its  servants  while  engaged  in  performing  a  duty 
which  the  carrier  owes  to  the  passenger,"  and  held  that  a  driver  of  a 
street  car,  who  was  also  the  conductor,  and  who  beat  a  passenger  in 
a  car,  was  within  the  scope  of  his  employment  to  carry  the  passenger 
safely  when  he  committed  the  assault. 

In  Goddard  v.  Grand  Trunk  Railway,  57  Me.  202,  203,  2  Am.  Rep. 
39,  a  brakeman,  who  had  authority  to  collect  tickets,  and  who,  after 
collecting  one  from  a  passenger,  demanded  another  of  him,  and  grossly 
insulted  him  because  he  declined  to  pay  for  his  passage  again,  was  held 
to  have  been  acting  within  the  scope  of  his  employment,  and  the  com- 
pany was  charged  with  the  damages  he  inflicted. 

So  in  Craker  v.  Chicago  &  Northwestern  Ry.  Co.,  36  Wis.  657,  673, 
17  Am.  Rep.  504,  a  conductor  who  kissed  a  passenger;  in  Pendleton 
v.  Kinsley,  3  Cliff.  416,  427,  428,  Fed.  Cas.  No.  10,  922,  the  clerk  of  a 
steamer  who  assaulted  a  passenger  while  trying  to  collect  his  fare ;  in 
Chicago  &  Eastern  R.  Co.  v.  Flexman,  103  111.  546, 42  Am.  Rep.  33  [969], 
a  brakeman  who  struck  a  passenger  because  during  a  search  for  a  lost 
watch  he  said  he  thought  the  brakeman  had  it ;  in  Terre  Haute  &: 
Indianapolis  R.  Co.  v.  Jackson,  81  Ind.  19,  22,  a  conductor  or  brake- 
man  who  drenched  a  passenger  with  water;  in  Campbell  v.  Palace  Car 
Co.  (C.  C),  42  Fed.  485,  a  porter  of  a  sleeping  car  who  made  indecent 
proposals  to  a  passenger;  in  Williams  v.  Palace  Car  Co.,  40  La.  Ann. 
421,  4  South.  85,  8  Am.  St.  Rep.  538,  a  porter  of  a  Pullman  car  who 
assaulted  a  passenger;  and  in  Dickson  r.Waldron  (Ind.  Sup.),  34  X.  E. 
506,  24  L.  R.  A.  483,  41  Am.  St.  Rep.  440,  the  ticket  taker  and  special 
policeman  of  a  theatre,  who,  in  endeavouring  to  sell  the  tickets  to  a 
customer,  assaulted  him — were  all  held  to  be,  and  undoubtedly  were, 
acting  within  the  scope  of  their  various  employments  when  they  in- 
flicted the  injuries  for  which  the  defendants  were  made  to  pay. 

When  all  these  authorities,  and  others  cited  by  counsel  for  the  plain- 
tiff, are  carefully  considered,  it  clearly  appears  that  the  controlling  rea- 
sons why  common  carriers  have  been  held  liable  for  the  wilful  or  negli- 
gent acts  of  their  servants  in  these  cases  are  (1)  that  they  owe  to  their 
passengers  the  highest  degree  of  care,  and  (2)  that  during  the  transpor- 
tation they  entrust  the  entire  care,  custody,  and  control  of  their  train-, 


192  INNKEEPERS. 

steamboats,  and  passengers  to  these  servants,  and  the  passengers  yield 
obedience  and  control  of  their  movements  to  these  servants,  under 
conditions  of  peril  and  subordination  in  which  the  passengers  are 
confined  and  helpless,  and  the  servants  in  charge  of  the  train  are  prac- 
tically the  vice  principals  of  the  defendants.  Bass  v.  Chicago  &  North- 
western Ry.  Co.,  36  Wis.  450,  463,  17  Am.  Rep.  495.  There  are  no  such 
reasons  for  the  existence  of  the  liability  of  innkeepers  for  the  wilful 
or  negligent  acts  of  their  servants  beyond  the  scope  of  their  employ- 
ment, and  the  argument  of  counsel  in  support  of  such  an  extension  by 
analogy  with  the  liability  of  common  carriers  fails  (1)  because  innkeepers 
are  not  liable  to  their  guests  for  extraordinary  care,  while  carriers  are 
Vable  to  their  passengers  for  the  highest  degree  of  care;  (2)  because 
innkeepers  do  not  entrust  to  their  servants  the  absolute  control  and 
dominion  of  their  hotels  and  of  the  persons  of  their  guests,  nor  do  the 
latter  surrender  themselves  to  the  dominion  and  direction  of  such 
servants  ;  and  (3)  because  the  wilful  and  negligent  acts  of  their  servants, 
for  which  carriers  have  been  held  liable,  were  committed  in  the  dis- 
charge of  the  duties  which  they  were  employed  to  perform,  while  those 
of  the  servants  of  innkeepers,  now  under  consideration,  were  done  out- 
side the  actual  and  the  apparent  scope  of  their  employment. 

In  addition  to  the  argument  by  analogy  which  we  have  been  consider- 
ing, our  attention  is  called  to  the  remarks  of  Chief  Justice  Shaw  in 
Commonwealth  v.  Power,  7  Mete.  596,  601,  41  Am.  Dec.  465,  a  case  in 
which  the  question  was  whether  a  railroad  company  had  the  right  to 
exclude  a  disorderly  person  from  its  railroad  station,  and  Chief  Justice 
Shaw,  in  discussing  that  question,  said :  — 

"An  owner  of  a  steamboat  or  railroad,  in  this  respect,  is  in  a  condition 
somewhat  similar  to  that  of  an  innkeeper,  whose  premises  are  open  to  all 
guests.  Yet  he  is  not  only  empowered,  but  he  is  bound,  so  to  regulate  his 
house,  as  well  with  regard  to  the  peace  and  comfort  of  his  guests,  who  there 
seek  repose,  as  to  the  peace  and  quiet  of  the  vicinity,  as  to  repress  and  pro- 
hibit all  disorderly  conduct  therein ;  and,  of  course,  he  has  a  right,  and  is 
bound,  to  exclude  from  his  premises  all  disorderly  persons,  and  all  persons 
not  conforming  to  regulations  necessary  and  proper  to  secure  such  quiet 
and  good  order." 

It  is  also  called  to  the  opinion  of  Judge  Story,  of  the  same  tenor,  in 
Jencks  v.  Coleman,  2  Sumn.  221,  Fed.  Cas.  No.  7,  258  [891],  a  case  which 
involved  a  similar  question  ;  to  wit,  the  right  of  the  owner  of  a  steam- 
boat to  exclude  a  disorderly  person  therefrom ;  to  the  decision  of  the 
Supreme  Court  in  Rommel  v.  Schambacher,  120  Pa.  579,  11  Atl.  779, 
6  Am.  St.  Rep.  732,  that  an  innkeeper  who  furnished  liquor  to  make  a 
man  drunk,  and  then  with  gross  carelessness  permitted  him  to  attach 
a  paper  to  the  back  of  one  of  his  customers  and  to  set  it  on  fire  in  his 
plain  sight,  was  liable  for  the  injury;  and  to  the  opinions  of  various 
courts  in  cases  in  which  the  liability  of  innkeepers  for  the  loss  or  destruc- 


DUTY   AS    TO    GUESTS    PERSONAL   SAFETY.  l'.Cj 

tion  of  the  property  of  their  guests  was  in  question.  These  cases  have 
been  examined,  but  neither  the  decisions  of  the  questions  there  pre- 
sented, nor  the  opinions  of  the  courts  concerning  them,  are  eitl 
decisive  or  persuasive  in  the  consideration  and  determination  of  the 
question  here  under  consideration,  whether  or  not  an  innkeeper  is  an 
insurer  of  the  safety  of  the  person  of  his  guest  against  the  wilful  or 
negligent  acts  of  his  servants  beyond  the  scope  of  their  employment, 
because  that  question  was  not  considered  or  determined,  and  clearly 
was  not  in  the  minds  of  the  judges  who  rendered  the  decisions  and  opin- 
ions to  which  reference  has  been  made.  This  is  also  true  of  all  the 
cases,  opinions,  and  expressions  which  have  been  cited  by  counsel  for 
the  plaintiff.  To  them  all  the  declaration  of  Chief  Justice  Marshall  in 
Cohens  v.  Virginia,  6  Wheat.  264,  399,  5  L.  Ed.  257,  applies  in  all 
force :  — 

"It  is  a  maxim  not  to  be  disregarded  that  general  expressions  in  every 
opinion  are  to  be  taken  in  connection  with  the  case  in  which  those  expres- 
sions are  used.  If  they  go  beyond  the  case,  they  may  be  respected,  but 
ought  not  to  control  the  judgment  in  a  subsequent  suit,  when  the  very  point 
is  presented  for  decision." 

Finally,  counsel  for  plaintiff  presents  for  our  consideration  the  opin- 
ion of  the  Supreme  Court  of  Nebraska,  rendered  since  the  case  in 
hand  was  argued  and  submitted  to  this  court,  in  an  action  brought  by 
the  father  of  the  plaintiff  in  this  action  for  the  damages  which  he 
suffered  from  the  very  accident  here  involved,  and  in  which  that  court 
has  held  that  the  innkeepers  were  liable  for  the  act  of  the  bell  boy  which 
inflicted  the  injury,  although  he  was  then  acting  beyond  the  course 
and  scope  of  his  employment.  Clancy  v.  Barker  [71  Neb.  83,  91], 
98  N.  W.  440  [and  103  N.  W.  446].  This  opinion  is  entitled  to,  and  it 
has  received,  great  respect  and  grave  consideration.  But,  after  all, 
the  question  here  is,  not  what  the  Supreme  Court  of  Nebraska  has  made 
the  law  and  the  contract  of  innkeepers  since  the  parties  to  this  action 
made  their  agreement,  but  what  that  law  was  and  what  the  contract 
between  these  parties  was  when  their  minds  met  upon  the  terms  of  their 
agreement.  At  that  time  no  court  had  ever  held,  so  far  as  our  research 
and  the  authorities  cited  by  counsel  have  disclosed  the  decisions,  that 
the  contract  of  an  innkeeper  was  to  insure  the  safety  of  the  person  of 
his  guest  against  the  negligent  or  wilful  acts  of  his  servants  without 
the  scope  of  their  employment.  The  pregnant  fact  that  no  case  can 
be  found  in  the  entire  field  of  English  and  American  jurisprudence  in 
which  an  innkeeper  was  ever  held  to  be  an  insurer  of  the  safety  of  his 
guest,  or  to  be  liable  for  the  wilful  or  negligent  acts  of  his  servants 
beyond  the  scope  of  their  employment,  is  the  most  complete  demonstra- 
tion that  this  was  not  the  law.  If  it  had  been,  judgments  founded  upon 
it  would  not  have  been  lacking.  Every  court  that  had  ever  decided  the 
question  had  declared  that  the  liability  of  the  innkeeper  was  limited 


194  INNKEEPERS. 

to  the  exercise  of  reasonable  care,  that  it  did  not  extend  to  a  guaranty 
of  safety,  and  hence  that  it  extended  only  to  the  acts  of  his  servants 
within  the  scope  of  their  employment.  This  was  declared  to  be  the 
general  rule  of  law  in  the  digests  and  in  the  text-books.  16  Am.  &  Eng. 
Enc.  of  Law  (2d  ed.),  546,  547,  note  6. 

In  Calye's  Case,  4  Coke,  202,  206  [163],  the  court  declared  that :  — 

"If  the  guest  be  beaten  in  the  inn,  the  innkeeper  shall  not  answer  for  it." 

In  Sandys  v.  Florence,  47  L.  J.  C.  P.  L.  598,  600,  a  case  in  which  a 
ceiling  fell  upon  a  guest  in  a  hotel,  Mr.  Justice  Lindley  said :  — 

"I  pass  over  the  previous  allegation  that  it  was  the  defendant's  duty 
1  to  keep  the  said  hotel  in  a  secure  and  proper  condition,  so  as  to  be  safe  for 
persons  using  the  same  as  guests,'  because  I  think  that  duty  is  too  widely 
alleged,  and  that  the  defendant's  duty  is,  not  to  insure  his  guests,  but  to 
see  only  that  they  do  not  suffer  from  want  of  reasonable  and  proper  care 
on  his  part." 

In  Weeks  v.  McNulty,  101  Tenn.  496,  499,  48  S.  W.  809,  43  L.  R.  A. 
185,  70  Am.  St.  Rep.  693,  an  action  for  damages  for  the  death  of  a 
guest  in  a  hotel  by  fire,  the  court  said :  — 

"The  general  rule  of  law  governing  the  liability  of  an  innkeeper  is  that 
he  is  not  an  insurer  of  the  person  of  his  guest  against  injury,  but  his  obli- 
gation is  merely  to  exercise  reasonable  care  that  his  guests  may  not  be 
injured  by  anything  happening  through  the  innkeeper's  negligence." 

In  Sheffer  v.  Willoughby,  163  111.  518,  521,  522,  45  N.  E.  253,  34 
L.  R.  A.  464,  54  Am.  St.  Rep.  483,  a  case  in  which  an  attempt  was 
made  to  apply  the  rule  of  absolute  liability  for  the  loss  of  the  property 
of  a  guest  in  support  of  a  claim  for  damages  caused  by  the  administra- 
tion of  unwholesome  food  to  his  guest  by  the  keeper  of  a  restaurant, 
the  court  held  that  the  limit  of  the  latter's  liability  was  for  the  failure 
to  exercise  reasonable  care. 

In  Stanley  v.  Bircher's  Ex'rs.,  78  Mo.  245,  246,  248,  an  action  was 
brought  by  the  plaintiff,  Stanley,  against  the  executors  of  the  estate  of 
Bircher  for  injury  to  her  person  resulting  from  her  fall  down  an  elevator 
shaft  of  a  hotel  operated  by  Bircher.  She  alleged  that  she  was  a  guest 
at  this  hotel,  that  it  became  his  duty  and  that  he  agreed  to  furnish  safe 
accommodations  for  the  reasonable  wants  of  the  plaintiff,  and  that  he 
did  not  perform  the  duty  or  keep  the  agreement,  in  that  the  door  to  the 
elevator  pit  was  dangerously  constructed  and  negligently  left  open  by 
Bircher  and  his  servants,  so  that  she  walked  into  it  and  was  injured. 
A  demurrer  was  interposed  to  this  complaint  on  the  ground  that  the 
cause  of  action  did  not  survive  the  death  of  Bircher.  Mark  that  the 
complaint  clearly  alleged  a  breach  of  a  contract  to  keep  the  guest  safely 
as  well  as  a  failure  to  discharge  the  duty  to  exercise  ordinary  care  as 


DUTY    AS   TO    GUEST  S    PERSONAL   SAFETY.  195 

in  the  case  at  bar,  and  that  the  question  was  whether  or  not  the  inn- 
keeper's obligation  included  a  contract  of  safe-keeping.  If  it  did,  the 
cause  of  action  survived,  and  the  action  could  be  maintained  ;  otherwi 
it  could  not  be.  The  Supreme  Court  of  Missouri  held  that  the  obligation 
of  an  innkeeper  comprised  no  such  contract,  that  the  action  could  not 
be  changed  from  an  action  on  the  case  for  a  breach  of  the  duty  to  exercise 
ordinary  care  to  one  for  a  breach  of  contract  of  safe-keeping  by  an 
averment  or  proof  of  such  contract  and  breach,  because  no  such  contract 
arose  out  of  the  relation  of  innkeeper  and  guest.     That  court  said  :  — 

"But  it  is  claimed  by  counsel  for  plaintiff  that  the  action  is  for  the  breach 
of  a  contract,  and  that  it  is  not  an  action  on  the  case  for  injuries  to  the  per- 
son. The  allusions  in  the  petition  to  the  formal  contract  between  the 
plaintiff  and  the  proprietor  of  the  hotel,  whereby  the  plaintiff  became  a 
guest  in  the  hotel,  cannot  change  the  true  character  of  the  action.  In 
setting  forth  an  action  of  trespass  on  the  case,  the  pleader  often  finds  it 
proper,  although  not  absolutely  necessary,  to  mention  matters  of  contract 
connected  with  the  tort,  by  way  of  inducement  and  explanation.  In  this 
case  the  relation  of  host  and  guest,  which  originated  in  contract,  explains 
how  the  defendant's  testator  came  to  owe  the  plaintiff  a  duty.  That  dut}', 
however,  the  law  imposes.  It  is  a  public  duty,  which  is  not  defined  by  the 
contract.  Neither  can  the  proprietor  relieve  himself  from  that  duty  by 
contract.  The  action  in  truth  is  for  a  violation  of  the  duty  which  the  law 
imposes,  independent  of  the  contract.  Neither  the  damages  nor  the  scope 
of  the  action  can  be  measured  or  limited  by  the  contract." 

And  in  Curtis  v.  Dinneen,  [4  Dak.  245]  30  N.  W.  148,  149,  152,  the 
Supreme  Court  of  Dakota  Territory  directly  decided  the  very  ques- 
tions presented  in  this  case  in  accordance  with  this  general  rule  and  in 
favour  of  the  innkeeper.  The  complaint  in  that  case  alleged,  among 
other  things,  that :  — 

"The  defendant  undertook,  for  a  compensation  paid  her  by  the  plain- 
tiff, to  keep  safely  and  from  harm  and  in  a  proper  manner  this  plaintiff 
while  she  should  remain  in  the  plaintiff's  inn  or  hotel,  and  that  while  the 
plaintiff  was  stopping  at  the  inn  or  hotel  of  the  defendant  this  plaintiff 
was  by  the  wrongful  and  spiteful  act  of  the  defendant's  servants  greatly 
injured." 

The  evidence  tended  to  show  that  one  of  the  defendant's  servants 
assaulted  and  inflicted  serious  injury  upon  the  plaintiff  while  she  was 
in  the  hotel  as  a  guest,  but  the  court  held  that  the  guest  could  not 
recover,  because  the  assault  and  battery,  although  committed  by  tin- 
defendant's  servant  in  her  hotel,  was  not  inflicted  while  the  servant 
was  acting  within  the  actual  or  apparent  scope  of  his  employ  nun  t. 

The  result  is  that  when  the  defendants  made  their  contract  to  enter- 
tain the  plaintiff  at  their  hotel,  the  law  was,  and  in  our  opinion  it  still 
is  (Rahmel  v.  Lehndorff,  [142  Cal.  681]  76  Pac.  659,  65  L.  R.  A.  88 
notwithstanding  the  late  decision  of  the  Supreme  Court  of  Nebraska 


196  INNKEEPERS. 

to  the  contrary,  that  their  agreement  was  to  exercise  reasonable  care 
for  his  safety,  comfort,  and  entertainment,  and  that  their  agreement 
did  not  include  an  insurance  of  his  person  against  the  wilful  or  negligent 
acts  of  their  servants  beyond  the  course  of  their  employment.  A 
change  of  this  law  and  an  extension  of  the  liability  of  the  innkeepers 
now,  after  the  execution  of  the  contract,  so  as  to  make  the  agreement 
include  such  an  insurance,  is  to  make  a  new  agreement  for  the  parties 
after  the  event,  and  to  impose  upon  the  defendants  a  liability  which 
they  could  not  foresee  and  to  which  they  did  not  assent.  A  retroactive 
decision,  which  makes  and  applies  a  new  rule  of  law,  and  attaches  an- 
other and  unforeseen  liability  to  a  contract  after  its  execution,  is  as 
vicious  as  an  ex  post  facto  statute. 

The  judgment  below  enforced  the  contract  which  the  parties  made 
in  strict  accordance  with  the  law  which  governed  it,  and  it  is  affirmed. 

Thayer,  Circuit  Judge  (dissenting).  The  important  question  in  this 
case  is  whether  an  innkeeper  is  exempt  from  liability  to  one  of  his  guests 
who  is  injured  within  the  hotel  by  an  act  of  gross  negligence  on  the  part 
of  a  servant  of  the  innkeeper,  because  the  servant,  at  the  time  he  com- 
mitted the  negligent  act,  was  not  engaged  in  rendering  any  service  for 
his  master,  but  was  momentarily  off  duty  and  awaiting  orders.  The 
majority  of  the  court  decided  that  question  in  the  affirmative,  holding, 
as  I  understand,  that,  if  the  proprietor  of  a  hotel  exercises  ordinary 
care  in  the  selection  of  his  servants,  he  is  not  responsible  to  his  guests 
for  any  of  their  acts  committed,  even  within  the  hotel,  no  matter  how 
rash,  negligent,  or  brutal  they  may  be,  nor  how  seriously  a  guest  may 
be  injured,  provided  the  servant  was  not  at  the  moment  engaged  in 
some  work  for  and  in  behalf  of  the  master.  I  am  unable  to  assent  to 
this  doctrine. 

The  relation  existing  between  a  carrier  and  a  passenger  has  on  numer- 
ous occasions  been  likened  to  that  existing  between  an  innkeeper  and 
his  guest.  Thus,  in  Commonwealth  v.  Power  et  al.,  7  Mete.  596,  601, 
41  Am.  Dec.  465,  Chief  Justice  Shaw  said :  — 

"An  owner  of  a  steamboat  or  railroad  in  this  respect  is  in  a  condition 
somewhat  similar  to  that  of  an  innkeeper  whose  premises  are  open  to  all 
guests.  Yet  he  is  not  only  empowered,  but  he  is  bound,  to  so  regulate  his 
house,  as  well  with  regard  to  the  peace  and  comfort  of  his  guests  who  there 
seek  repose  as  to  the  peace  and  quiet  of  the  vicinity,  as  to  repress  and  pro- 
hibit all  disorderly  conduct  therein ;  and,  of  course,  he  has  a  right  and  is 
bound  to  exclude  from  his  premises  all  disorderly  persons  and  all  persons 
not  conforming  to  regulations  necessary  and  proper  to  secure  such  quiet 
and  good  order." 

This  remark  was  quoted  with  approval  by  Ryan,  C.  J.,  in  Bass  v. 
Chicago  &  Northwestern  Ry.  Co.,  36  Wis.  450,  459,  17  Am.  Rep.  495. 

Also  in  Jencks  v.  Coleman,  2  Summ.  221,  226,  Fed.  Cas.  No.  7,  258 
[891],  Mr.  Justice  Story  compared  the  rights  and  duties  of  a  carrier 


DUTY    AS    TO    GUESTS    PERSONAL   SAFETY.  197 

with  those  of  an  innkeeper,  upon  the  evident  assumption  that  the  rela- 
tion of  an  innkeeper  to  his  guest  was  practically  like  that  of  a  carrier 
to  a  passenger. 

In  Norcross  v.  Norcross,  53  Me.  163,  169,  the  Supreme  Court  of  that 
state  remarked,  when  considering  an  innkeeper's  liability  for  the  prop- 
erty of  his  guest,  that :  "  Innkeepers  are  under  the  same  liability  as  com- 
mon carriers." 

And  in  the  case  of  Dickson  et  al.  v.  Waldron,  [136  Ind.  507]  3 !  X.  E. 
506,  510,  24  L.  R.  A.  483,  41  Am.  St.  Rep.  440,  the  Supreme  '  ourt  of 
Indiana  remarked  :  — 

"But  common  carriers,  innkeepers,  merchants,  managers  of  theati 
and  others  who  invite  the  public  to  become  their  patrons  and  guests,  and 
thus  submit  personal  safety  and  comfort  to  their  keeping,  owe  a  more  spe- 
cial duty  to  those  who  may  accept  such  invitation.  Such  patrons  and  guests 
have  a  right  to  ask  that  they  shall  be  protected  from  injury  while  present 
on  such  invitation,  and  particularly  that  they  shall  not  suffer  wrong  from 
the  agents  and  servants  of  those  who  have  invited  them." 

Also,  in  the  case  of  Pinkerton  v.  Woodward,  33  Cal.  557,  585,  91 
Am.  Dec.  657,  it  was  held  that  the  liability  of  innkeepers  and  of  com- 
mon carriers  is  founded  upon  the  same  considerations  of  public  policy 
in  the  one  case  as  in  the  other. 

In  the  absence  of  express  authority  on  this  point,  I  should  be  of 
opinion  that  an  innkeeper  is  under  the  same  obligation  to  protect  his 
guests  against  the  wrongful  and  discourteous  acts  of  his  servants,  com- 
mitted within  or  upon  his  premises,  as  a  carrier  to  protect  its  passengers 
against  like  acts  of  its  employes.  A  guest  comes  to  a  hotel  on  the  invi- 
tation of  the  proprietor,  and  for  the  latter's  profit  and  advantage,  and 
upon  the  implied  understanding  that  while  on  the  premises  as  a  guest 
he  shall  receive  courteous  and  considerate  treatment  from  the  pro- 
prietor and  all  persons  who  are  his  servants,  or,  at  least,  upon  the 
implied  understanding  that  while  beneath  his  roof  the  life  of  the  guest 
shall  not  be  imperilled  by  the  rash,  inconsiderate,  or  wrongful  acts  of 
those  who  are  his  servants.  The  general  law  of  hospitality  would  seem 
to  impose  such  an  obligation  upon  an  innkeeper.  He  promises  suitable 
entertainment  to  all  his  guests,  as  well  as  respectful,  considerate,  and 
proper  treatment  on"  the  part  of  all  of  his  servants.  If  a  servant  of  a 
hotel,  when  off  duty,  should  meet  a  guest  outside  of  the  hotel,  and  not 
on  the  premises,  and  there  assault  him,  it  is  doubtless  true  —  although 
the  case  at  bar  requires  no  decision  on  that  point  —  that  the  innkeeper 
could  not  be  charged  with  responsibility  for  the  servant's  condui 
and  it  is  probably  true  that  the  innkeeper  would  not  be  responsible 
an  assault  committed  on  one  of  his  guests  within  the  hotel  by  a  stranger, 
provided  he  has  taken  all  reasonable  precautions  to  prevent  such  occur- 
rences by  excluding  disorderly  persons  from  his  premises.  Hut  in  my 
opinion  the  law  casts  on  the  innkeeper  an  obligation  to  see  to  il  thai 


198  INNKEEPERS. 

his  guest  is  not  injured,  while  within  the  hotel,  by  the  wrongful,  incon- 
siderate, or  negligent  acts  of  those  who  are  his  servants. 

It  is  said  in  the  opinion  of  the  majority  that  an  innkeeper  is  not  an 
insurer  of  the  safety  of  the  person  of  his  guest  while  within  the  hotel. 
The  same  may  be  said  of  carriers.  They  do  not  insure  the  personal 
safety  of  passengers,  but  only  to  exercise  a  very  high  degree  of  care,  or, 
as  it  is  sometimes  said,  "the  utmost  care,"  for  their  protection.  Yet 
it  is  now  well  settled  that  this  duty  is  so  comprehensive  that  it  renders 
the  carrier  responsible  for  injuries  inflicted  on  passengers  so  long  as  the 
relation  of  carrier  and  passenger  exists,  not  only  by  the  negligent  acts 
of  its  servants  done  while  in  the  performance  of  some  duty,  but  also 
by  their  wilful  and  wrongful  acts,  such  as  assaults  committed  on  pas- 
sengers, or  indignities  offered  to  them.  The  obligation  also  rests  on 
the  carrier  to  protect  its  passengers  while  in  transit,  not  only  against 
the  wilful  and  wrongful  acts  of  its  own  servants,  but  so  far  as  practi- 
cable from  acts  of  violence  committed  by  strangers  and  co-passengers. 
It  makes  no  difference,  as  it  seems,  what  motive  may  have  actuated  a 
servant  of  the  carrier  in  committing  the  wrongful  act  complained  of, 
or  whether  it  was  done  in  conformity  with  the  carrier's  orders,  or  in 
express  violation  thereof  and  on  the  sole  responsibility  of  the  servant ; 
for,  if  it  was  done  while  the  relation  of  carrier  and  passenger  existed, 
the  carrier  is  responsible,  and  it  cannot  defend  on  the  ground  that  the 
act  of  its  servant  was  done  without  its  sanction  and  at  a  moment  when 
he  was  not  rendering  any.  special  service  to  the  carrier.  A  different 
rule  obtains,  of  course,  as  respects  wilful  and  wrongful  acts  done  by 
employes  to  those  to  whom  the  carrier  at  the  time  owed  no  other  or 
greater  duty  of  protection  than  it  owed  to  every  other  person  in  the 
community ;  but,  when  the  peculiar  relation  of  carrier  and  passenger 
exists,  the  modern  rule  appears  to  be  that  the  carrier  is  under  an  obli- 
gation to  see  to  it  that  a  passenger  suffers  no  harm  on  account  of  the 
wrongful  and  wilful  acts  of  its  servants,  and  that  every  practicable 
precaution  is  taken  to  protect  him  against  the  wrongful  acts  of  strangers 
and  co-passengers.  Stewart  v.  Brooklyn  &  Crosstown  Railroad  Co., 
90  N.  Y.  588,  43  Am.  Rep.  185;  Dwindle  v.  New  York  Central  & 
H.  R.  R.  R.  Co.,  120  N.  Y.  117,  125,  24  N.  E.  319,  8  L.  R.  A.  224,  17 
Am.  St.  Rep.  611 ;  Goddard  r.  Grand  Trunk  Ry.,  57  Me.  202,  213,  2 
Am.  Rep.  39,  and  cases  there  cited;  Bryant  v.  Rich,  106  Mass.  188, 
8  Am.  Rep.  311  ;  Spohn  v.  Missouri  Pacific  Ry.  Co.,  87  Mo.  74,  80; 
Craker  v.  Chicago  &  Northwestern  Ry.  Co.,  36  Wis.  657,  17  Am.  Rep. 
504 ;  Pendleton  v.  Kinsley,  3  Cliff.  416,  427,  Fed.  Cas.  No.  10,  922 ; 
Chicago  &  Eastern  R.  R.  Co.  v.  Flexman,  103  111.  546,  42  Am.  Rep. 
33  [969] ;  Terre  Haute  &  Indianapolis  R.  R.  v.  Jackson,  81  Ind.  19. 

Now,  it  is  true  that  a  hotel  is  an  immovable  structure  and  does  not 
run  on  wheels  like  a  train  of  cars ;  but  in  all  other  respects  the  relation 
existing  between  an  innkeeper  and  his  guest  is  like  that  existing  between 
a  carrier  and  passenger,  and  this  fact  has  always  been  recognised,  as 


DUTY    AS    TO    GUEST'S    PERSONAL   SAFETY.  199 

shown  by  the  cases  above  cited.  An  innkeeper,  like  a  carrier,  is  engaged 
in  a  quasi-public  service.  When  he  embarks  in  the  business  of  keeping 
a  hotel,  he  is  bound  to  provide  entertainment  for  all  travellers  who  seek 
a  place  of  rest  and  refreshment,  provided  they  come  to  him  in  a  fit  con- 
dition to  be  entertained  as  guests,  and  are  able  to  pay  the  customary 
charges.  Unless  relieved  of  the  obligation  by  an  express  statute,  the 
innkeeper,  like  the  carrier,  is  an  insurer  of  his  guests'  baggage  against 
loss  occasioned  otherwise  than  by  an  act  of  God  or  the  public  enemy. 
American  &  English  Ency.  of  Law  (2d  ed.),  vol.  1(>,  p.  528,  ami  eases 
there  cited.  Besides,  an  innkeeper  is  vested  with  the  same  power  of 
control  over  his  premises  which  the  carrier  exercises  over  such  means  of 
public  conveyance  as  he  provides.  An  innkeeper  has  the  right  t<> 
exclude  from  his  premises  all  disorderly  persons,  and  to  suppress  all 
disturbances  therein  that  tend  to  disturb  his  guests  or  imperil  their 
safety,  and  according  to  the  decision  of  Chief  Justice  Shaw  in  the  ca 
above  cited  (7  Mete.  596,  601)  it  is  his  common-law  duty  to  exerci 
this  power.  Aside  from  these  considerations,  the  innkeeper,  like  the 
carrier,  has  the  exclusive  right  to  select  all  of  the  persons  who  are  to 
aid  him  in  the  discharge  of  his  quasi-public  functions.  I  have  been 
unable,  therefore,  to  discover  any  sufficient  reason  why  he  should  not 
be  held  responsible  to  his  guests  for  the  consequences  of  any  wilful 
and  wrongful  acts  of  his  servants,  committed  within  the  hotel,  to  the 
same  extent  that  the  carrier  is  responsible  to  his  passengers  for  like 
wrongful  acts  of  its  servants ;  and  within  the  authorities  above  cited 
a  carrier  would  be  clearly  responsible  to  one  of  its  passengers  for  an 
injury  inflicted  by  one  of  its  employes  under  such  circumstances  as 
those  disclosed  in  the  present  case. 

Relative  to  the  authorities  cited  in  the  majority  opinion  ami  not 
already  referred  to,  this  may  be  said  :  — 

Calye's  Case,  4  Coke's  Rep.  63,  66  [163],  contains  the  single  detached 
statement  that,  "if  the  guest  be  beaten  in  the  inn,  the  innkeeper  shall 
not  answer  for  it."  But  it  does  not  say  by  whom  beaten,  whether  by 
a  servant  of  the  innkeeper  or  by  a  stranger.  This,  however,  is  a  very 
old  case,  decided  in  1584,  and  the  statement  quoted  is  purely  dicta, 
since  the  case  involved  no  question  respecting  the  liability  of  an  inn- 
keeper for  an  assault  committed  upon  a  guest  within  the  hotel.  More- 
over, as  the  learned  editor  of  the  American  &  English  Ency.  of  Law  re- 
marks, in  substance  (vide,  vol.  16  [2d  ed.],  p.  545),  it  may  well  be  doubted 
whether  the  statement  above  quoted  would  be  accepted  at  the  present 
day  as  authority  for  the  doctrine  which  it  enunciates,  since  the  modern 
authorities  are  opposed  to  the  view  that  an  innkeeper  cannot  be  held 
responsible  for  an  assault  committed  upon  one  of  his  guests  within  the 
hotel  by  a  servant,  or  even  by  a  stranger  when  the  innkeeper  has  not 
taken  proper  care  to  exclude  disorderly  persons  from  his  premises. 

Curtis  v.  Dinneen  [4  Dak.  245],  30  N.  W.  148,  was  a  case  in  which  a 
guest  of  a  hotel  kept  by  a  married  woman  sought  to  hold  her  responsible 


200  INNKEEPERS. 

for  an  assault  and  battery  committed  by  her  husband  without  her  con- 
sent or  ratification.  The  husband  was  living  with  the  wife  in  the  hotel, 
as  he  had  a  right  to  do,  and  was  assisting  her  to  operate  it,  so  that  the 
case  was  embarrassed  by  the  existence  of  the  marital  relation ;  the  court 
holding  that  under  the  circumstances  the  wife  could  not  be  held  respon- 
sible for  the  tort  of  the  husband. 

The  other  cases  that  are  referred  to  are  without  exception  cases 
where  it  was  sought  to  hold  the  innkeeper  responsible  for  some  defect 
in  the  hotel  premises,  and  in  one  of  them  (Sandys  v.  Florence,  47  L.  J. 
598,  600)  it  was  remarked  arguendo,  in  discussing  a  demurrer  to  the 
complaint,  that  an  innkeeper's  duty  "  is  not  to  insure  his  guests,  but  to 
see  only  that  they  did  not  suffer  from  want  of  reasonable  and  proper 
care  on  his  part."  None  of  the  cases,  however,  discuss  the  particular 
question  which  is  presented  in  the  case  at  bar,  whether  an  innkeeper  is 
liable  to  his  guest  for  the  reckless  conduct  of  one  of  his  servants  com- 
mitted upon  the  hotel  premises,  whereby  the  life  of  the  guest  is 
jeopardized.  In  my  judgment  an  innkeeper  ought  to  be  held  liable 
for  an  act  of  that  nature,  and  as  respects  that  question  I  concur  in 
the  view  which  was  expressed  by  the  Supreme  Court  of  Nebraska  in 
Clancy  v.  Barker,  [71  Neb.  83,  91]  98  N.  W.  440  [and  103  N.  W. 
446],  that  was  decided  upon  the  same  state  of  facts  which  this 
record  discloses. 

I  think  the  judgment  below  should  be  reversed,  and  a  new  trial 
ordered. 


4.   LIABILITY  FOR  GUEST'S  PROPERTY. 

CLUTE  v.   WIGGINS. 

14  Johns.  (N.  Y.),  175.     1817. 

In  Error,  on  certiorari  to  a  justice's  Court.  Wiggins,  a  wagoner, 
brought  an  action  on  the  case  against  Clute,  a  tavern-keeper,  to  recover 
the  value  of  several  bags  of  wheat  and  barley,  stolen  from  the  sleigh  of 
the  plaintiff,  during  the  night,  while  he  was  entertained  as  a  guest  in 
the  house  of  the  defendant. 

At  the  trial  before  the  justice,  it  was  proved  that  the  defendant  kept 
a  tavern,  in  the  town  of  Half -Moon ;  that  the  plaintiff  came  to  the 
defendant's  house,  with  a  load  of  wheat  and  barley,  and  was  there 
received  as  a  guest  for  the  night ;  that  his  horses  were  put  into  the  plain- 
tiff's stable,  and  his  sleigh,  with  the  wheat  and  barley,  "was  put  into 
the  wagon-house  of  the  plaintiff,  where  it  had  been  usual  for  the  defend- 
ant to  receive  loads  of  that  description."     The  next  morning  it  was 


LIABILITY    FOR    GUEST  S    PROPERTY.  201 

discovered  that  the  door  of  the  wagon-house  had  been  broken  open, 
and  all  the  wheat  and  barley  stolen  from  the  plaintiff's  sleigh. 

The  justice  gave  judgment  for  the  plaintiff  for  twenty-five  dollars, 
with  costs. 

Per  Curiam.  The  liability  of  an  innkeeper  for  such  losses,  arises 
from  the  nature  of  his  employment.  He  has  privileges  by  special 
license.  He  holds  out  a  general  invitation  to  all  travellers  to  come  to 
his  house,  and  he  receives  a  reward  for  his  hospitality.  The  law,  in 
return,  imposes  on  him  corresponding  duties,  one  of  which  is  to  protect 
the  property  of  those  whom  he  receives  as  guests. 

On  general  principles  applicable  to  this  subject,  the  defendant  is 
liable  for  the  loss  sustained  in  this  case.  He  received  the  plaintiff  as 
his  guest,  for  the  night,  with  his  loaded  sleigh  and  horses.  The  sleigh, 
with  its  contents,  was  put  into  an  out-house  appurtenant  to  the  inn, 
"where  it  had  been  usual  for  the  defendant  to  receive  loads  of  that 
description."  The  doors  of  this  wagon-house  were  broken  open,  from 
which  it  may  be  inferred  that  the  building  was  closed,  and  the  doors 
fastened  in  such  a  manner  as  to  promise  security.  The  bags  of  grain, 
therefore,  may  be  deemed  to  have  been  infra  hospitium;  and  being  so, 
it  is  not  necessary  to  prove  negligence  in  the  innkeeper,  to  make  him 
liable  for  the  loss.  (Galye's  Case,  8  Co.  32  [163] ;  Bennet  v.  Miller, 
5  Term  Rep.  273.) 

Judgment  below  affirmed. 


QUINTON  v.   COURTNEY. 
1  Hayw.  (N.  C.)  40.     1794. 

Case.  Courtney  was  a  tavern-keeper,  and  Quinton  a  traveller,  who 
had  saddle-bags  in  which  were  two  hundred  and  eighteen  dollars  ;  upon 
alighting  at  the  inn,  he  gave  the  bags  to  a  servant  of  the  tavern-keeper, 
but  did  not  inform  either  the  servant  or  the  tavern-keeper  that  money 
was  in  the  bags :  these  bags  were  placed  in  the  bar-room,  and  were 
afterwards  found  on  the  lot,  cut  open,  and  the  money  gone.  .  .  . 

Haywood,  for  the  Plaintiff,  insisted  that  ordinary  keepers  were  liable 
for  the  loss  of  goods  of  their  guests  committed  to  their  care,  unless  the 
loss  happens  by  the  default  of  the  guest  himself.  Inns  were  instituted 
for  the  benefit  of  travellers,  that  they  might  know  where  to  go  when 
travelling  amongst  strangers,  without  the  danger  of  being  robbed  or 
defrauded  of  their  effects ;  and  to  say  that  the  innkeeper  should  not 
be  liable  for  the  loss  of  his  guest's  goods,  would  in  effect  destroy  one  of 
the  principal  ends  of  the  institution  of  inns  :  and  if  it  should  be  required 
to  prove  fraud  or  neglect  upon  the  innkeeper,  before  a  guest  could 
recover  for  the  loss  of  his  effects,  this  would  destroy  the  utility  of  the 


202  INNKEEPERS. 

institution  in  a  great  measure;  for  frequently  a  stranger  would  not 
have  it  in  his  power  to  prove  the  circumstance  —  there  is  no  inconven- 
ience on  the  other  hand  comparable  to  this.  The  innkeeper  has  noth- 
ing to  do  but  to  be  careful  —  if  he  takes  sufficient  care,  in  general  the 
goods  will  not  be  lost.  The  same  answer  may  be  given  to  the  objection 
that  the  guest  did  not  inform  him  of  the  contents  of  the  bags  —  if  he 
takes  sufficient  care,  a  thing  of  great  value  will  no  sooner  be  lost  than 
a  thing  of  small  value ;  and  he  ought  to  use  this  care  in  respect  to  all 
his  guests,  and  all  the  effects  they  have  with  them,  be  the  value  great 
or  small ;  and  therefore  there  is  no  necessity  that  he  should  be  informed 
of  the  contents  or  value  of  the  things  confided  to  his  care,  and  he  cited 
8  Rep.  33.  —  Bac.  Ab.  182.  —  Buller  73,  of  edit.  1778.  —  Cro.  Jac.  224. 

Mr.  Moore,  for  the  Defendant,  insisted  in  general  that  he  could 
not  be  made  liable  but  by  means  of  his  neglect.  He  cited  Coggs  v. 
Bernard,  and  many  other  authorities;  and  he  argued  that  the  laws 
of  England  are  not  in  force  here,  any  further  than  the  circumstances 
of  the  country  make  them  necessary ;  that  these  kinds  of  frauds  which 
the  laws  of  England  were  so  careful  to  guard  against,  are  not  frequently 
practised  here,  and  that  therefore  there  is  no  necessity  for  the  adoption 
of  this  hard  law. 

But  per  Williams  (the  only  Judge  on  this  circuit),  the  law  is  as  laid 
down  in  8  R.  33  —  Coley's  [Calye's]  case  [163],  and  the  innkeeper  is 
liable  for  the  goods  lost,  unless  when  the  guest  is  robbed  by  a  compan- 
ion of  his  own :  and  in  some  few  other  cases  mentioned  in  Coley's 
[Calye's]  case,  and  in  3  Bac.  Ab.  183,  as  where  the  guest  is  informed 
that  the  house  is  full,  but  the  traveller  insists  upon  staying,  and  says 
he  will  shift.  And  in  order  to  support. the  action,  it  is  sufficient  for  the 
Plaintiff  to  prove  that  the  Defendant  kept  a  common  ordinary,  that  he 
was  a  guest,  that  the  goods  were  brought  to  the  inn,  and  were  in  the  care 
of  the  Defendant,  and  were  lost. 

The  Plaintiff  under  this  charge  had  a  verdict  for  one  hundred  and 
nine  pounds,  and  judgment. 


MERRITT  r.   CLAGHORN. 
23  Vt.  177.     1851. 

Redfield,  J.  This  is  an  action  against  the  defendant  as  a  common 
innkeeper,  for  the  loss  of  the  plaintiff's  team,  while  a  guest  at  the  defend- 
ant's house,  by  the  burning  of  his  barn,  supposed  to  be  the  work  of 
an  incendiary. 

The  case  finds,  that  the  plaintiff's  loss  was,  without  "  any  negligence, 
in  point  of  fact,  in  the  defendant,  or  his  servants."  From  this  we  are 
to  understand,  that  no  degree  of  diligence,  on  his  part,  could  have  pre- 


LIABILITY    FOR    GUEST'S    PROPERTY.  203 

vented  the  loss.  If,  then,  the  defendant  is  liable,  it  must  be  for  a  loss 
happening  by  a  cause  beyond  his  control.  In  saying  this,  we  hi 
reference  only  to  the  highest  degree  of  what  would  be  esteemed  reason- 
able diligence,  under  the  circumstances  known  to  exist,  before  the  fire 
occurred.  We  are  aware,  that  it  would  doubtless  have  been  possible 
by  human  means,  to  have  so  vigilantly  guarded  these  buildings,  as 
probably  to  have  prevented  the  fire.  But  such  extreme  caution,  in 
remote  country  towns,  is  not  expected,  and  if  practised,  as  a  general 
thing,  must  very  considerably  increase  charges  upon  guests,  which  they 
would  not  wish  to  incur,  ordinarily,  for  the  remote  and  possible  advan- 
tage which  might  accrue  to  them. 

The  question,  then,  is,  whether  the  defendant  is  liable  ?  Do  tRe 
authorities  justify  any  such  conclusion  ?  For  it  is  a  question  of  author- 
ity mainly.  We  know  that  many  eminent  judges  and  writers  upon  the 
law  have  considered,  that  innkeepers  are  liable  to  the  same  extent  as 
common  carriers.  It  may  be  true,  that  the  cases  are  much  alike  in 
principle.  For  one,  I  should  not  be  inclined  to  question  that.  But  if 
the  case  were  new,  it  is  certainly  not  free  from  question,  how  far  any 
court  would  feel  justified  in  holding  any  bailee  liable  for  a  loss  like  the 
present.  But  in  regard  to  common  carriers,  the  law  is  perfectly  well 
settled,  and  they  contract,  with  the  full  knowledge  of  the  extent  of  their 
liability,  and  demand,  not  only  pay  for  the  freight,  but  a  premium  for 
the  insurance,  and  may  reinsure,  if  they  choose.  And  the  fact,  that 
carriers  are  thus  liable,  no  doubt  often  induces  the  owners  to  omit  insur- 
ance. But  unless  the  law  has  already  affixed  the  same  degree  of  extreme 
liability  to  the  case  of  innkeepers,  we  know  of  no  grounds  of  policy 
merely,  which  would  justify  a  court  in  so  holding. 

In  regard  to  the  authorities  relied  upon  by  the  counsel  for  the  plain- 
tiff, the  case  of  Beedle  v.  Morris,  Yelv.  162,  decided  as  7  Jac.  1,  makes 
nothing  either  way  upon  this  point.  The  declaration  only  claims, 
that  the  defendant  is  liable  for  "goods  lost,  through  the  default  of  the 
defendant,  or  his  servants"  ;  and  no  case  questions  the  liability  to  this 
extent.  The  dictum  referred  to  in  argument,  in  the.Doctor  and  Student, 
only  shows,  that  innholders  are  liable  for  a  robbery,  committed  upon 
their  guests  by  the  servants  of  the  house.  But  this  is  upon  the  ground 
of  want  of  proper  care  in  keeping  such  servants.  The  host  is,  we  appre- 
hend, upon  principles  of  reason  and  justice,  always  liable  for  any  act 
of  his  servants,  or  guests.  He  employs  such  servants  as  he  chooses, 
and  is  bound  to  take  every  quiet  and  orderly  guest  which  offers,  and  if 
he  takes  others,  even  in  good  faith,  it  ought  not  to  be  at  the  risk  of  his 
other  guests,  who  derive  no  profit  and  have  no  concern  whatever  in 
their  being  there.  In  holding  the  innkeeper  liable  to  this  extent,  all 
opinions  concur.     It  is  here  the  discrepancy  begins. 

Morse  v.  Slue,  1  Vent.  190,  decides  nothing,  for  the  case  was  com- 
pounded. But  the  case  was  one  of  common  carrier,  by  ship,  as  early 
as  the  24  Car.  2,  and  doubts  seem  then  to  have  existed,  whet  her  even 


204  INNKEEPERS. 

common  carriers  were  liable,  without  any  default ;  but  the  law  is  clearly 
against  them  now  upon  that  point.  The  declaration  in  this  case  seems 
to  be  much  the  same  in  substance  as  that  in  Yelverton,  which  is  a  ground 
of  argument ;  perhaps  the  extent  of  the  liability  was  then  considered 
the  same,  which  we  should  also  infer  from  other  parts  of  the  case. 

Calye's  Case,  8  Coke,  32a  [163],  which  is  regarded  as  the  leading  case 
upon  this  subject  among  the  early  reports,  certainly  decides  nothing 
more,  than  that  the  host  is  not  liable  for  the  horse  of  his  guest,  if  put  in 
the  pasture  by  direction  of  the  owner,  and  there  stolen,  which  he  prob- 
ably would  be,  if  put  in  the  barn,  for  it  would  then  be  the  folly  and  neg- 
lect of  the  hostler,  not  to  lock  the  barn.  The  numerous  dicta  in  this 
case,  as  in  most  of  the  cases  in  my  Lord  Coke's  Reports,  go  far  beyond 
the  case,  and  embody  the  leading  principles  of  a  brief  treatise  upon  the 
subject.  And  these  dicta  have  been  regarded  as  authority,  to  some 
extent.  But  even  that  will  not  justify  the  present  action.  'There 
ought  to  be  a  default  in  the  innholder  or  his  servants  "  [or  may  we  not 
add  guests  ?].     But  in  the  present  case,  there  is  no  pretence  of  any 

such  default. 

White's  Case,  2  Dyer,  158b,  is  where  the  house  was  full,  and  the  guest 
undertook  to  shift  for  himself,  being  admitted  as  matter  of  favour,  and 
upon  that  condition,  and  the  innkeeper  was  held  not  liable,  even  for 
robbery  committed  in  the  house,  which  he  prima  facie  clearly  would 
be  in  ordinary  cases,  and  ultimately,  unless  he  could  shew  that  no  degree 
of  diligence,  on  his  part,  which  it  was  reasonable  to  require,  could  have 
prevented  the  robbery.  The  case  of  Sanders  v.  Spencer,  3  Dyer,  26G, 
decides  that  goods,  which  the  guest  declines  to  have  locked  up  in  a 
place  pointed  out  to  him,  are  at  his  own  risk. 

It  is  certain,  that  Sir  William  Jones,  in  his  treatise  upon  the  liabilities 
of  bailees,  lays  clown  no  such  extreme  liability,  on  the  part  of  innholders, 
as  is  here  claimed.  He  is  liable,  says  this  writer,  if  the  goods  of  a  guest 
be  stolen  from  his  premises  "by  any  person  whatever."  And  he  is 
liable  for  robbery,  even  if  committed  by  his  servants  or  guests,  but  not 
if  he  take  ordinary  .care,  or  the  force  were  truly  irresistible.  This  is 
the  import  of  the  rule  laid  down  by  Sir  William  Jones,  and  Mr.  Justice 
Story  adopts  almost  precisely  the  same  view,  in  his  valuable  treatise 
upon  bailments.  The  innkeeper  is  bound  to  the  extremest  degree  of( 
diligence,  which  any  prudent  man  would  be  expected  to  resort  to  in 
defending  his  own  goods,  and  is  absolutely  responsible  for  loss  by  his 
own  servants  or  guests,  and,  prima  facie,  for  all  losses. 

Chancellor  Kent,  2  Kent,  592,  lays  down  much  the  same  rule.  He 
says,  the  liability  does  not  extend  to  loss  occasioned  by  inevitable 
casualty,  or  by  superior  force,  as  robbery.  A  more  extreme  case  of 
superior  force  than  the  present  is  scarcely  supposable,  or  one  more 
clearly  within  the  reason  of  the  rule,  requiring  extreme  strictness  in 
the  care  and  responsibility  of  innholders. 

The  American  cases  referred  to  in  argument  certainly  do  not  decide 


LIABILITY    FOR    GUEST  S    PROPERTY.  205 

what  is  necessary  to  maintain  this  action.  Mason  v.  Thompson,  9 
Pick.  280,  involved  no  question  of  difficulty,  except  whether  the  defend- 
ant was  liable  at  all,  as  a  common  innholder.  The  goods,  being  the 
plaintiff's  harness,  were  confessedly  lost,  and  nothing  appeared,  bul 
that  they  were  lost  by  the  neglect  of  the  defendant's  servants.  As  a 
common  innholder,  this  imposed  the  burden  upon  him  to  shew  that  the 
loss  occurred  without  his  fault.  This  he  did  not  attempt.  It  being 
settled,  that,  under  the  circumstances,  the  defendant  was  liable  as  ;t 
common  innholder,  although  the  plaintiff  was  not  at  the  time  a  lodger 
in  the  defendant's  house,  there  remained  no  further  doubt  in  the  case. 

So,  too,  in  Piper  v.  Manny,  21  Wend.  282,  the  goods  were  stolen 
from  the  plaintiff's  load,  which  was  left  in  the  open  yard  of  the  inn 
bv  direction  of  the  defendant's  servants,  and  the  defendant  was  held 
liable  upon  the  most  obvious  principles  of  the  law  applicable  to  the 
subject.  It  is  true,  in  both  these  cases,  the  opinion  is  broadly  declared, 
that  the  liability  of  an  innholder  and  a  common  carrier  is  the  same.  But 
the  cases  called  for  no  such  opinion,  and  no  authority  is  cited  for  the 
opinion,  and  it  is  by  no  means  certain,  that  those  judges  would  have 
so  held,  if  it  had  been  necessary  to  turn  the  case  upon  that  naked 
question.  No  authority  whatever  is  cited  in  the  former  case  except 
by  the  reporter,  who  refers  to  Richmond  v.  Smith,  8  B.  &  C.  9,  and  that 
was  only  the  case  of  goods  stolen  from  the  inn,  and  it  was  held,  the  inn- 
keeper was  'prima  facie  liable.  And  the  judges  here  say,  that  "in  this 
respect  [that  is,  where  goods  are  stolen]  the  situation  of  the  landlord  i- 
precisely  similar  to  that  of  a  carrier." 

But  we  find,  that,  when  the  very  question  comes  before  the  English 
courts,  as  it  did  in  Dawson  v.  Chamney,1  5  Ad.  &  Ellis,  N.  S.  164  [48 
E.  C.  L.  164],  for  the  first  time,  so  far  as  I  can  find,  it  was  found  neces- 
sary to  put  very  essential  qualifications  upon  the  language  of  the  judges, 
as  reported  in  the  last  case  referred  to.  The  doctrine  of  this  case,  as 
expressed  in  the  note,  is,  "  When  chattels  have  been  deposited  in  a  public- 
inn,  and  there  lost  or  injured,  the  prima  facie  presumption  is,  that  the 
loss  or  damage  was  occasioned  by  the  negligence  of  the  innkeeper  or  his 
servants.  But  this  presumption  may  be  rebutted  ;  and  if  the  jury  find 
in  favour  of  the  innkeeper,  as  to  negligence,  he  is  entitled  to  succeed 
on  a  plea  of  not  guilty." 

This  rule,  it  is  there  shown  very  clearly,  is  founded  upon  ihr  ancient 
common-law  liability  of  innkeepers,  as  set  forth  in  the  writ,  taken  from 
the  Rerjistrum  Brevium,  and  found  also  in  Fitzherbert's  X.  B.,  94  1!. 
Of  the  guests,  it  is  said,  there,  their  "goods  being  in  those  inns,  without 
subtraction  to  keep  night  and  day,  are  bound,  so  that  for  default  of 
them,  the  innkeepers  or  their  servants,  damage  may  not  come  in  any 
manner  to  such  guests." 

It  is,  perhaps,  scarcely  necessary  to  pursue  this  subject  farther.     It 

1  This  case  was,  however,  doubted   and  distinguished  in  Morgan  v.  Ravey,  6  II. 

&  N.  265  (Exch.  1861). 


20C  INNKEEPERS. 

is  certain,  no  well-considered  case  has  held  the  innkeeper  liable  in  cir- 
cumstances like  the  present.  And  no  principle  of  reason,  or  policy, 
or  justice,  requires,  we  think,  any  such  result,  and  the  English  law  is 
certainly  settled  otherwise.  We  entertain  no  doubt,  therefore,  that 
the  defendant  is  fairly  entitled  to  have 'the  judgment,  which  he  obtained 
in  the  court  below,  affirmed.  Judgment  affirmed. 


SIBLEY  v.   ALDRICH. 

33  N.  H.  553 ;   66  Am.  D.  745.     1856. 

This  action  was  case,  for  damage  done  to  the  plaintiff's  horse  while 
in  the  possession  and  keeping  of  the  defendant  as  an  innkeeper,  and  was 
referred  to  a  commissioner,  who  made  his  report,  stating  the  following 
facts : — 

The  defendant  was  the  keeper  of  a  common  inn  at  West  Swanzey, 
but  had  no  taverner's  license.  On  the  22d  of  June,  1854,  James  Wheeler, 
the  servant  of  the  plaintiff,  was  received  into  the  defendant's  inn  as 
a  traveller,  and  at  the  same  time  brought  with  him  and  delivered  to 
the  defendant  the  plaintiff's  horse,  which  the  defendant  received  and 
put  into  the  stable  used  in  connection  with  the  inn.  Afterwards,  in 
the  same  afternoon,  Wheeler  informed  the  defendant  that  the  horse  was 
tied  so  short  that  he  could  not  feed,  when  the  defendant  gave  the  horse 
more  rope.  During  the  night  following  the  horse  was  kicked  by  the 
horse  of  another  traveller,  tied  in  the  next  stall,  and  his  leg  broken. 
About  a  week  afterwards  the  horse  of  the  plaintiff  was  killed  by  his 
direction.  The  stalls  in  which  the  horses  were  placed  were  separated 
by  a  partition,  five  feet  and  one  inch  in  length  from  the  manger,  which 
was  not  of  sufficient  length. 

On  trial  before  the  jury  the  defendant  offered  evidence  to  prove  that 
the  damage  to  the  plaintiff's  horse  did  not  happen  through  any  actual 
negligence  of  the  defendant,  or  his  servants ;  but  the  court  excluded 
the  evidence.  Thereupon  a  verdict  was  taken,  by  consent,  for  the 
plaintiff,  to  be  set  aside,  or  judgment  rendered  thereon,  as  the  court 
should  order. 

Perley,  C.  J.  The  defendant  offered  to  prove  that  the  damage  to 
the  plaintiff's  horse  was  not  caused  by  any  actual  negligence  of  himself 
or  his  servants.  He  did  not  offer  to  prove  that  it  happened  through 
the  negligence  or  default  of  the  plaintiff,  direct  or  implied  ;  nor  by  irre- 
sistible force,  inevitable  accident,  or  by  the  act  of  God,  or  the  public 
enemy.  The  question  would  seem  to  be  whether,  as  a  general  rule, 
and  in  all  cases,  an  innkeeper  can  discharge  himself  from  liability  for 
the  loss  of  his  guest's  goods  by  shewing  that  it  did  not  happen  by  the 
actual  neglect  or  default  of  himself  or  his  servants. 


LIABILITY    FOR    GUESTS    PROPERTY.  207 

On  this  point  the  authorities  are  not  unanimous.  Story,  in  his  work 
on  Bailments,  §  482,  says,  "By  the  common  law,  as  laid  down  in 
Calye's  Case,  an  innkeeper  is  not  chargeable  unless  there  is  some  de- 
fault in  him  or  in  his  servants,  in  the  well  and  safe  keeping  and  custody 
of  his  guest's  goods  and  chattels  within  his  common  inn,  but  he  is  bound 
to  keep  them  safe,  without  any  stealing  or  purloining";  quoting  thus 
far  the  language  of  the  Report  in  Calye's  Case,  and  then  he  adds,  "  This 
doctrine  is,  however,  to  be  taken  with  the  qualification  that  the  lo 
will  be  deemed  prima  facie  evidence  of  negligence."  And  in  section 
472,  he  says,  that  this  doctrine  should  be  received  with  some  hesitation, 
in  view  of  the  case  of  Richmond  v.  Smith,  8  B.  &  C.  9,  where  a  differ- 
ent view  of  the  law  seems  to  have  been  entertained.  Story's  authority 
on  a  question  of  this  nature  is  undoubtedly  of  great  weight;  but  it  is 
to  be  observed  that  he  states  his  opinion  with  some  hesitation,  and  he 
does  not  appear  to  have  reached  a  conclusion  in  this  instance,  after  his 
usual  extensive  and  careful  examination  of  the  authorities. 

In  Dawson  v.  Chamney,  5  A.  &  E.  (N.  S.)  165,  it  was  held  that  when 
goods  have  been  deposited  in  a  public  inn,  and  there  lost  or  injured,  the 
presumption  is  that  the  loss  or  damage  was  caused  by  the  negligence  of 
the  innkeeper  or  his  servants ;  but  that  this  presumption  may  be  re- 
butted, and  if  the  jury  find  in  favour  of  the  innkeeper  as  to  negligence, 
he  is  entitled  to  succeed  on  a  plea  of  not  guilty.  Lord  Denman  cited 
Story  as  authority  for  this  rule.  The  circumstances  of  Dawson  v. 
Chamney  were  much  like  those  of  the  present  case.  The  plaintiff  gave 
his  horse  in  charge  to  the  defendant's  ostler,  who  placed  him  in  a  stable 
with  another  horse,  that  kicked  him  and  caused  the  injury  complained 
of. 

Metcalf  v.  Hess,  14  111.  129,  is  to  the  same  point,  that  an  innkeeper 
may  discharge  himself  by  showing  that  the  loss  happened  without 
any  default  on  his  part.  The  foregoing  authorities  go  to  sustain  the 
position  of  the  defendant. 

In  Merril  v.  Clagthorne  [Merritt  v.  Claghorn],  23  Vt.  177  [202],  the 
court  held  that  an  action  cannot  be  maintained  against  an  innkeeper 
to  recover  for  property  lost  by  fire,  which  was  occasioned  by  inevitable 
casualty,  or  superior  force,  and  without  any  negligence  on  the  part  of 
the  innkeeper  or  his  servants.  This  last  case  is  put  on  peculiar  grounds, 
and  cannot  be  regarded  as  an  authority  for  the  general  position  that 
an  innkeeper  may  discharge  himself  by  shewing  that  the  loss  did  not 
happen  by  his  default.  The  fire  took  in  another  building  and  spread 
to  the  inn. 

So  in  Kesten  [Kisten]  v.  Hildebrand,  9  B.  Mon.  (Ky.)  72  [167],  it 
was  held  that  an  innkeeper  is  prima  facie  liable,  but  not  for  a  loss  by 
external  force  or  robbery,  or  if  the  loss  occur  by  the  neglect  of  the  guest 
or  his  servants  or  companions.     Forward  v.  Pittard,  1  T.  R.  2-,  31. 

On  the  other  hand,  there  are  numerous  authorities,  direct  and  str 
to  the  point  that  the  innkeeper  cannot  discharge  hims<  If  by  slur 


208  INNKEEPERS. 

that  the  loss  did  not  happen  by  his  default,  but  that  he  must  go  farther, 
and  shew  that  it  was  caused  by  the  default,  direct  or  implied,  of  the 
owner. 

Thus  Chancellor  Kent,  2  Com.  574,  says :  "  An  innkeeper,  like  a 
common  carrier,  is  an  insurer  of  the  goods  of  his  guest,  and  can  only 
limit  his  liability  by  express  agreement  or  notice.  Rigorous  as  this 
law  may  seem,  and  hard  as  it  may  actually  be  in  some  instances,  it  is, 
as  Sir  William  Jones  observes,  founded  on  the  principle  of  public 
utility,  to  which  all  private  considerations  ought  to  yield.  Metcalf, 
in  his  note  to  Bedell  v.  Morris,  Yelverton,  162,  places  the  liability  of  an 
innkeeper  and  common  carrier  on  the  same  footing,  and  so  does  the 
civil  law.  Domat,  B.  1,  T.  U.,  sec.  2,  a,  1.  Burgess  v.  Kent,  4  M.  &  S. 
306,  was  much  considered.  The  point  there  decided  was,  that  an  inn- 
keeper is  not  answerable  for  the  goods  of  his  guest,  which  are  lost  through 
the  negligence  of  the  guest  out  of  a  private  room  in  the  inn,  chosen  by 
the  guest  for  the  purpose  of  exhibiting  the  goods  for  sale,  the  use  of 
which  room  was  granted  by  the  innkeeper,  who,  at  the  same  time,  told 
the  guest  that  there  was  a  key,  and  that  he  might  lock  the  door,  which 
he  neglected  to  do.  In  commenting  on  Calye's  Case  and  the  language 
of  the  old  writ,  Lord  Ellenborough  is  reported  to  have  said,  "  There  can 
be  no  doubt  also  that  there  may  be  circumstances,  as  if  the  guest  by 
his  own  neglect  induces  the  loss,  or  himself  introduces  the  person  who 
purloins  the  goods,  which  form  an  exception  to  the  general  liability, 
as  not  coming  within  the  words,  pro  defect u  hospitatoris,  and  under  such 
circumstances  the  plaintiff  shall  not  complain  of  the  loss."  And  Le 
Blanc,  J.,  in  the  same  case,  says,  "We  must  take  the  facts  from  the 
report,  and  also  that  the  judge  stated  to  the  jury  that  the  innkeeper 
was  responsible  to  his  guest  for  the  safe  custody  of  his  goods,  but  that 
the  guest  might  by  his  own  misconduct  discharge  the  innkeeper  from 
that  responsibility."  Here  the  general  responsibility  of  the  innkeeper 
for  the  safety  of  his  guest's  goods  is  clearly  conceded :  The  decision  is 
put  on  the  ground  of  misconduct  in  the  guest,  which  caused  the  loss, 
without  any  intimation  that  mere  want  of  negligence  in  the  innkeeper 
would  discharge  him.  Tamunth  v.  Packard,  1  Starkie,  249,  is  to  the 
same  point  with  Burgess  v.  Kent. 

In  Richmond  v.  Smith,  8  B.  &  C.  9,  Lord  Tenterden  says:  "It  is 
clear  that  at  common  law,  when  a  traveller  brings  goods  to  an  inn, 
the  landlord  is  responsible  for  them.  In  this  respect  "I  think  the  situ- 
ation of  the  landlord  was  precisely  analogous  to  that  of  a  common 
carrier"  ;  and  Bailey,  J.,  in  the  same  case,  says  :  "  It  appears  to  me  that 
an  innkeeper's  liability  very  closely  resembles  that  of  a  common  carrier. 
He  is  prima  facie  liable  for  any  loss  not  occasioned  by  the  act  of  God  or 
the  king's  enemies,  although  he  may  be  exonerated  when  the  guest 
chooses  to  have  the  goods  under  his  own  care." 

In  Kent  v.  Shackford,  2  B.  &  Aid.  803,  Lord  Tenterden  is  reported 
to   have  used    the  following    language :     "  Innkeepers,   like   common 


LIABILITY    FOR    GUEST  S    PROPERTY. 

carriers,  are  liable  by  the  custom  of  the  realm.  The  principle  on  which 
the  liability  of  an  innkeeper  for  the  loss  of  the  goods  of  his  guest  is 
founded,  is,  both  by  the  civil  and  common  law,  to  compel  the  innkeeper 
to  take  care  that  no  improper  person  be  admitted  into  his  house,  and 
to  prevent  collusion  between  him  and  other  persons.  In  the  1» 
L.  4,  T.  9,  §  1,  after  stating  the  law  that  an  innkeeper  is  liable  for 
the  goods  of  his  guest,  it  is  said,  nisi  hoc  esset  statutum  materia  daretur 
cumfuribus  adversus  cos,  quos  redpiunt,  coeundi." 

Amistead  v.  White,  6  Law  &  Eq.  .3-19,  was  an  action  against  an  inn- 
keeper, and  the  judge  charged  the  jury  that  if  the  owner  of  the  - 
was  guilty  of  gross  negligence,  the  innkeeper  was  discharged.  The 
court  held  the  instructions  were  sufficiently  favourable  to  the  plaintiff, 
and  queried  whether  it  was  necessary  that  the  negligence  of  the  plaintiff 
should  be  gross,  to  discharge  the  defendant.  It  is  not  easy  to  under- 
stand why  the  cause  should  have  been  left  to  the  jury  in  this  way,  if 
the  doctrine  of  the  prior  case  of  Dawson  v.  Chamney  had  been  recognised 
for  law,  and  it  is  worthy  of  remark  that  no  allusion  is  made  to  Dawson 
v.  Chamney  in  the  Report  of  Amistead  ».  White. 

In  Mason  v.  Thompson,  8  Pick.  280,  it  was  decided  that  an  inn- 
keeper is  liable  for  the  loss  of  his  guest's  goods  committed  to  his  care, 
unless  the  loss  is  caused  by  the  act  of  God,  or  the  common  enemy,  or 
by  the  fault  of  the  guest.  And  Wilde,  J.,  in  delivering  the  opinion  of 
the  court,  says  that  this  rule  may  undoubtedly  in  some  cases  subject 
the  innkeeper  to  loss  without  any  negligence  or  default  on  his  part ; 
that  innkeepers,  as  well  as  common  carriers,  are  regarded  as  insurers 
of  property  committed  to  their  care,  and  are  bound  to  make  restitution 
for  any  loss  or  injury  not  caused  by  the  act  of  God  or  the  common  enemy. 
or  the  neglect  or  fault  of  the  owner.  And  it  was  decided  in  Washburn 
v.  Jones,  14  Barb.  193,  that  an  innkeeper  is  liable  for  all  losses  and 
damages  happening,  even  without  his  default,  excepting  such  as  are 
caused  by  inevitable  accident  or  the  public  enemy. 

The  question  was  very  fully  and  ably  discussed  in  the  recent  case  of 
Shaw  v.  Berry,  31  Maine,  478,  and  the  court  there  came  to  the  conclu- 
sion that  to  discharge  an  innkeeper  from  liability  for  the  loss  of  goods 
in  his  charge,  it  is  not  sufficient  for  him  to  show  that  the  loss  did  not 
happen  by  his  neglect  or  default,  but  that  he  must  go  further  and  show 
that  it  happened  by  the  fault,  direct  or  indirect,  of  the  owner. 

The  leading  case  on  this  subject  is  Calye's,  8  Co.  32,  a.  [163],  in  which 
the  point  resolved  was,  that  if  a  horse  is  put  out  to  pasture  at  the  request 
of  the  owner  by  an  innkeeper,  and  is  stolen,  the  innkeeper  is  not  liable, 
because  the  horse,  not  being  infra  hospitium,  is  not  in  the  charge  and 
custody  of  the  innkeeper  as  such,  and  his  liability  as  an  innkeeper  does 
not  attach.  The  report  recites  the  words  of  the  old  writ,  and  states 
that  by  it  all  the  cases  concerning  ostlers  may  be  decided.  The  part 
of  the  writ  which  bore  on  the  point  resolved,  was  that  which  limits  the 
liability  of  the  innkeeper,  by  the  custom  of  the  realm,  to  goods  of  the 


210  INNKEEPERS. 

guest  infra  hospitium;  and  in  commenting  on  the  language  of  the  writ 
the  reporter  says,  that  "the  innkeeper  shall  not  be  charged  unless 
there  be  a  default  in  him  or  his  servants  in  the  well  and  safe  keeping 
and  custody  of  the  guest's  goods  within  his  common  inn;  for  the  inn- 
keeper is  bound  in  law  to  keep  them  safe  there,  without  any  stealing  or 
purloining,  but  he  ought  to  keep  his  goods  and  chattels  there  in  safety." 
Considering  the  connection  of  these  remarks  with  the  point  resolved 
in  the  case,  we  think  they  could  not  have  been  intended  to  lay  down 
any  rule  defining  the  extent  of  the  innkeeper's  liability  for  goods  in  his 
custody  as  such,  but  merely  to  state  that  his  liability  was  confined  to 
goods  deposited  in  the  inn. 

The  case  then  proceeds  to  state  an  exception  to  the  rule  that  the  goods 
within  the  common  inn  the  innkeeper  ought  to  keep  in  safety,  to  wit : 
that  if  the  goods  are  stolen  by  one  whom  the  guest  brings  with  him,  the 
innkeeper  is  not  liable,  for  then  the  fault  is  the  guest's.  There  is  no 
statement  in  the  report  that  actual  negligence  is  necessary  to  charge 
the  innkeeper,  or  that  he  can  discharge  himself  by  showing  that  the 
goods  were  not  lost  by  his  actual  negligence. 

The  language  of  the  old  writ  has  sometimes  been  made  the  ground 
of  an  inference  that  there  must  be  actual  negligence  to  charge  an  inn- 
keeper. The  writ  recites  :  "  that  by  the  custom  of  the  realm  innkeepers 
are  bound  to  keep  the  goods  of  their  guests  within  their  common  inn, 
without  substraction  or  loss,  night  and  day,  ita  quod  pro  defectu  hujus 
modi  hospitatorum  sed  sermentium  suorum,"  no  damage  shall  in  any 
manner  befall  such  guests.  The  innkeeper  is  bound  to  keep  the  goods 
of  his  guest  so  that  no  damage  happen  by  his  default  or  that  of  his 
servants.  The  argument  is  that  the  term  pro  defectu  implies  actual 
fault  and  negligence.  But  the  innkeeper  is  sued  for  neglecting  to  per- 
form his  legal  duty ;  and  the  question  occurs  what  is  the  duty  which 
the  law  and  the  custom  of  the  realm  imposes  on  him  ?  If  the  law 
holds  him  to  keep  the  goods  of  his  guest  at  all  events,  except  in  case 
where  the  loss  happens  by  the  act  of  God,  or  the  public  enemy,  or  by 
the  fault  of  the  guest,  then  if  the  goods  are  lost  by  mere  accident,  or  by 
robbery,  without  any  want  of  actual  care  on  his  part,  the  innkeeper 
has  still  failed  to  perform  his  legal  obligation,  and  the  goods  are  lost  by 
his  neglect  and  failure  to  perform  the  duty  which  the  law  imposes.  The 
law  in  such  case  charges  the  innkeeper  with  the  duty  of  keeping  the 
goods  safely,  and  imputes  to  him  the  fault,  if  they  are  lost  or  damaged. 

In  this  view  of  their  meaning  these  words  of  the  writ  are  by  no  means 
idle  and  unmeaning,  because  the  innkeeper  is  not  in  all  cases  liable  for 
the  loss  of  goods  entrusted  to  his  care.  The  loss  may  happen  by  the 
act  of  God,  by  the  public  enemy,  or  by  the  fault  of  the  owner,  and  in  that 
case  the  damage  does  not  happen  by  the  default  of  the  innkeeper.  If 
the  declaration  should  merely  allege  that  the  goods  were  lost  or  damaged, 
without  averring  that  the  loss  or  damage  happened  by  default  of  the 
innkeeper  or  his  servants,  it  is  apprehended  that  it  would  be  substan- 


LIABILITY    FOR    GUESTS    PROPERTY.  211 

tially  defective  and  bad  on  demurrer,  on  the  strictest  rule  which  has 
been  applied  to  the  innkeeper's  liability. 

This  argument  from  the  form  of  pleading  might  be  urged  with  equal 
force  to  show  that  a  common  carrier  is  only  liable  for  loss  that  happ< 
byhisactual  negligence.  In  the  settled  form  of  declaring  in  case  against 
a  carrier  it  is  alleged,  that  the  defendant,  "neglecting  his  said  duty  in 
that  behalf,  did  not  safely  and  securely  carry,"  ike,  "but  so  negli- 
gently and  improperly  conducted  himself,  that  by  and  through  the 
negligence,  carelessness  and  default  of  the  defendant,"  the  goods  were 
lost  or  damaged.  Angell  on  Carriers,  429,  note;  Raphael  v.  Pickford, 
5  Manning  &  Granger,  551 ;   2  Chitty's.Pl.  271,  272. 

And  in  the  ancient  form  of  declaring  against  a  common  carrier  the 
custom  of  the  realm  is  alleged  to  be  that  "  absque  substractione,  amission*, 
sen  spoliatione,  portare  tenmtur,  ita  quod  pro  defectu  dictorum  communium 
portatorum,  scu  servientium  suorum  hujus  modi  bona  et  catalla,  eis  sic 
ut  prefertur  deliberata,  non  suit  perdita,  amissa,  seu  spoliata"  ;  and  in 
assigning  the  breach  it  was  alleged  that  "pro  defectu  bonae  custodiae 
ipsius  defendentis  et  servientium  suorum  perdita  et  amissa  fuerunt." 

Three  different  rules  appear  to  be  laid  down  on  this  subject  in  different 
authorities. 

1 .  That  the  innkeeper  is  prima  facia  liable  for  the  loss  of  goods  in 
his  charge ;  but  may  discharge  himself  by  shewing  that  the  goods  were 
not  lost  by  his  negligence  or  default,  and  this  is  the  ground  taken  by 
the  defendant  in  the  present  case.  This  view  of  the  law  is  sustained 
by  Dawson  v.  Chamney,  5  A.  &  E.,  n.  s.  165,  and  by  Metcalf  v.  Hess, 
14  111.  129. 

2.  That  the  innkeeper  is  discharged  by  shewing  how  the  accident 
happened,  and  that  it  happened  by  inevitable  accident,  or  irresistible 
force,  though  the  accident  might  not  amount  to  what  the  law  denomi- 
nates the  act  of  God,  and  the  force  might  not  be  the  power  of  a  public 
enemy.  This  rule  is  countenanced  by  Merril  p.  Clagthorne  [Merritt 
v.  Claghorn],  23  Vt.  177  [202],  and  Kesten  [Kisten]  v.  Hildebrand,  9 
B.  Mon.   (Ky.)  92  [167]. 

3.  That  the  innkeeper  is  liable,  unless  the  loss  was  caused  by  the  act 
of  God,  or  the  public  enemy,  or  by  the  fault,  direct  or  implied,  of  the 
guest.  Thb  rule  is  maintained  in  Burgess  v.  Kent,  4  M.  &  S.  306; 
Richmond  v.  Smith,  8  B.  &  C.  9;  Tamunth  v.  Packard,  1  Starke,  249  ; 
Kent  v.  Shackford,  2  B.  &  Ad.  803  ;  Armistead  v.  White,  6  L.  &  E.  349  ; 
Mason  v.  Thompson,  8  Pick.  280;  Shaw  v.  Berry,  31  Maine,  478. 

Of  text  writers,  Story,  though  with  hesitation,  goes  for  the  first  rule. 
Kent  states  the  third  rule  strongly,  and  Metcalf  adopts  the  same,  and 
the  civil  law  places  the  liability  of  the  innkeeper  and  the  common 
carrier  on  the  same  footing. 

It  is  somewhat  singular  that  on  a  practical  question,  which  must  be 
as  old  as  the  rudiments  of  the  law,  there  should  be  found  at  this  day  such 
diversity  of  opinion  and  decision.     It  is  probably  owing  to  the  obscure 


212  INNKEEPERS. 

way  in  which  the  subject  is  treated  in  the  report  of  Calye's  Case,  and 
the  different  interpretations  which  have  been  put  on  that  case.  On  the 
whole  we  think  that  the  better  rule  is  the  strict  one,  as  laid  down  in  the 
elaborate  and  very  satisfactory  case  of  Shaw  v.  Berry.  The  weight  of 
authority  is  heavily  that  way,  and  the  policy  and  analogies  of  the  law 
lead  to  the  same  conclusion. 

Judgment  on  the  verdict. 


HULETT  v.   SWIFT. 
33  N.  Y.  571 ;   88  Am.  D.  405.     1865. 

Appeal  from  the  Supreme  Court.  The  action  was  for  the  value  of 
property  committed  by  a  guest  to  the  charge  of  the  defendant's  testator, 
an  innkeeper  in  Poughkeepsie,  and  lost  by  a  fire,  which  destroyed  the 
barn  and  stable  attached  to  the  inn,  on  the  26th  of  July,  1860. 

The  facts,  as  admitted  by  the  pleadings  and  found  by  the  referee, 
were  substantially  these  :  — 

One  Banks,  an  employee  of  the  plaintiffs,  stopped  at  the  Balding  House 
in  Poughkeepsie,  with  his  own  horses  and  wagon,  and  a  load  of  buck- 
skin goods  belonging  to  the  plaintiffs.  He  was  received  as  a  guest,  and 
the  innkeeper  took  charge  of  his  property.  A  fire  occurred  in  the  course 
of  the  night,  which  occasioned  a  loss  to  Banks  and  the  plaintiffs  of 

$1250.50. 

It  did  not  appear  how  the  fire  originated,  and  the  defendant  failed 
to  show  that  it  was  not  the  result  of  negligence.  The  referee  held  that 
the  plaintiffs,  in  their  own  right,  and  as  the  assignees  of  Banks,  were 
entitled  to  the  value  of  the  property  destroyed. 

On  appeal  to  the  General  Term  of  the  fourth  district,  the  judgment 
was  affirmed,  on  the  ground  that  the  innkeeper  is  an  insurer  of  the  goods 
of  his  guest  while  they  remain  in  his  custody.  From  that  decision  the 
defendant  appealed. 

Porter,  J.  An  innkeeper  is  responsible  for  the  safe-keeping  of 
property  committed  to  his  custody  by  a  guest.  He  is  an  insurer 
against  loss,  unless  caused  by  the  negligence  or  fraud  of  the  guest,  or 
by  the  act  of  God  or  the  public  enemy.  This  liability  is  recognised  in 
the  common  law  as  existing  by  the  ancient  custom  of  the  realm ;  and 
the  judges  in  Calye's  case  treated  the  recitals  in  the  special  writ  for  its 
enforcement,  as  controlling  evidence  of  the  nature  and  extent  of  the  obli- 
gation imposed  by  law  on  the  innkeeper.  (8  Coke,  32 ;  1  Smith's 
Lead.  Cas.,  Hare  &  Wallace's  ed.,  194,  307  [163].) 

This  custom,  like  that  in  the  kindred  case  of  the  common  carrier, 
had  its  origin  in  considerations  of  public  policy.  It  was  essential  to 
the  interests  of  the  realm,  that  every  facility  should  be  furnished  for 


LIABILITY    FOR    GUEST'S    PROPERTY.  213 

secure  and  convenient  intercourse  between  different  portions  of  tin- 
kingdom.  The  safeguards,  of  which  the  law  gave  assurance  to  tin- 
wayfarer,  were  akin  to  those  which  invested  each  English  home  with 
the  legal  security  of  a  castle.  The  traveller  was  peculiarly  exposed  to 
depredation  and  fraud.  He  was  compelled  to  repose  confidence  in  a 
host,  who  was  subject  to  constant  temptation,  and  favored  with  pecul- 
iar opportunities,  if  he  chose  to  betray  his  trust.  The  innkeeper  v 
at  liberty  to  fix  his  own  compensation,  and  enforce  summary  payment. 
His  lien,  then  as  now,  fastened  upon  the  goods  of  his  guest  from  I 
time  they  came  to  his  custody.  The  care  of  the  property  was  usually 
committed  to  servants,  over  whom  the  guest  had  no  control,  and  who 
had  no  interest  in  its  preservation,  unless  their  employer  was  held 
responsible  for  its  safety.  In  case  of  depredation  by  collusion,  or  of 
injury  or  destruction  by  neglect,  the  stranger  wrouId  of  necessity  he  at 
every  possible  disadvantage.  He  wTould  be  without  the  means  either 
of  proving  guilt  or  detecting  it.  The  witnesses  to  whom  he  must  resort 
for  information,  if  not  accessories  to  the  injury,  would  ordinarily  be 
in  the  interest  of  the  innkeeper.  The  sufferer  would  be  deprived,  by 
the  very  wrong  of  which  he  complained,  of  the  means  of  remaining  to 
ascertain  and  enforce  his  rights,  and  redress  would  be  well-nigh  hope- 
less, but  for  the  rule  of  law  casting  the  loss  on  the  party  entrusted  with 
the  custody  of  the  property,  and  paid  for  keeping  it  safely. 

The  considerations  of  public  policy  in  which  the  rule  had  its  origin, 
forbid  any  relaxation  of  its  rigour.  The  number  of  travellers  was  few, 
when  this  custom  was  established  for  their  protection.  The  growth  of 
commerce,  and  increased  facilities  of  communication,  have  so  multi- 
plied the  class  for  whose  security  it  was  designed,  that  its  abrogation 
would  be  the  removal  of  a  safeguard  against  fraud,  in  which  almost 
every  citizen  has  an  immediate  interest.  The  rule  is  in  the  highest 
degree  remedial.  No  public  interest  would  be  promoted,  by  changing 
the  legal  effect  of  the  implied  contract  between  the  host  and  the  gue 
and  relieving  the  former  from  his  common-law  liability.  Innkeepers, 
like  carriers  and  other  insurers,  at  times  find  their  contracts  burden- 
some ;  but  in  the  profits  they  derive  from  the  public,  and  the  privileges 
accorded  to  them  by  the  law,  they  find  an  ample  and  liberal  compensa- 
tion. The  vocation  would  be  still  more  profitable,  if  coupled  with  new- 
immunities ;  but  we  are  not  at  liberty  to  discard  the  settled  rules  of 
the  common  law,  founded  on  reasons  which  still  operate  in  all  their 
original  force.  Open  robbery  and  violence,  it  is  true,  are  less  frequent 
as  civilisation  advances;  but  the  devices  of  fraud  multiply  with  tin- 
increase  of  intelligence,  and  the  temptations  which  spring  from  oppor- 
tunity, keep  pace  with  the  growth  and  diffusion  of  wealth.  The  great 
body  of  those  engaged  in  this,  as  in  other  vocations,  are  men  of  char- 
acter and  worth ;  but  the  calling  is  open  to  all,  and  the  existing  rule 
protection  should  therefore  be  steadily  maintained.  It  extends  to 
every  case,  and  secures  the  highest  vigilance  on  the  part  of  the  inn- 


214  INNKEEPERS.. 

keeper,  by  making  him  responsible  for  the  property  of  his  guest.  The 
traveller  is  entitled  to  claim  entire  security  for  his  goods,  as  against  the 
landlord,  who  fixes  his  own  measure  of  compensation,  and  holds  the 
property  in  pledge  for  the  payment  of  his  charges  against  the  owner. 

In  cases  of  loss,  either  the  innkeeper  or  the  guest  must  be  the  sufferer, 
and  the  common  law  furnishes  the  solution  of  the  question,  on  which  of 
them  it  should  properly  fall.  In  the  case  of  Cross  v.  Andrews,  the  rule 
was  tersely  stated  by  the  court.  "The  defendant,  if  he  will  keep  an 
inn,  ought,  at  his  peril,  to  keep  safely  his  guests'  goods."  (Croke's 
Eliz.,  622.)  He  must  guard  them  against  the  incendiary,  the  burglar 
and  the  thief ;  and  he  is  equally  bound  to  respond  for  their  loss,  whether 
caused  by  his  own  negligence,  or  by  the  depredations  of  knaves  and 
marauders,  within  or  without  the  curtilage. 

This  doctrine  is  too  well  settled  in  the  English  courts,  to  be  shaken 
by  the  exceptional  case  on  which  the  appellant  relies.  (Calye's  case, 
8  Coke,  32  [163] ;  Cross  v.  Andrews,  Croke's  Eliz.  622 ;  Richmond  v. 
Smith,  8  Barnw.  &  Cress.  803 ;  Cashill  v.  Wright,  37  Eng.  Law  and  Eq. 
175.) 

In  the  courts  of  this  State,  it  has  always  been  held  that  the  inn- 
keeper, like  the  carrier,  is,  by  the  common  law,  an  insurer.  (Purvis 
v.  Coleman,  21  N.  Y.  Ill,  112,  117;  Wells  v.  Steam  Navigation  Co., 
2  Comst.,  204,  209 ;  Gile  v.  Libby,  36  Barb.  70,  74  ;  Ingallsbee  v.  Wood, 
id.  458;  Washburn  v.  Jones,  14  id.  193,  195;  McDonald  v.  Edgerton, 
5  id.  564 ;  Taylor  v.  Monnot,  4  Duer,  117 ;  Stanton  v.  Leland,  4  E.  D. 
Smith,  94 ;  Grinnell  v.  Cook,  3  Hill,  488 ;  Piper  b.  Many,  21  Wend. 
282,  284;    Clute  v.  Wiggins,  14  Johns.  175  [200].) 

The  rule,  as  recognised  by  us,  is  sanctioned  by  the  leading  authorities 
in  the  other  states.  (1  Pars,  on  Cont.,  623;  1  Smith's  Lead.  Cas., 
Hare  &  Wallace's  ed.,  307 ;  Shaw  v.  Berry,  31  Maine,  478 ;  Sibley  r. 
Aldrich,  33  N.  H.  533  [206] ;  Berkshire  Woolen  Co.  v.  Proctor,  7  Cush. 
427  [232] ;  Mason  v.  Thompson,  9  Pick.  280 ;  Towson  v.  Havre  de 
Grace  Bank,  6  Harr.  &  Johns.  47 ;  Thickston  v.  Howard,  8  Blackf . 
535,  537 ;   Kisten  v.  Hildebrand,  9  B.  Mon.  (Ky.)  72  [167]. 

A  shade  of  doubt  has,  at  times,  been  thrown  over  the  question,  by 
the  unguarded  language  of  elementary  writers,  and  especially  by  the 
suggestion  of  Judge  Story,  in  his  treatise  on  the  law  of  bailments,  that 
the  innkeeper  could  exonerate  himself  from  liability  by  proving  that  he 
was  not  guilty  of  actual  negligence ;  and  this  view  seems  to  have  been 
adopted  in  two  of  the  Vermont  and  one  of  the  English  cases.  (Story  on 
Bailments,  §  472  ;  Dawson  v.  Champney,  8  Adolphus  &  Ellis,  N.  S. 
164;  Merritt  v.  Claghorn,  23  Vt.  177  [202];  McDaniels  v.  Robinson, 
28  id.  337.)  The  doctrine  of  these  cases  is  opposed  to  the  general 
current  of  English  and  American  authority,  and  evidently  had  its  origin 
in  a  misapprehension  of  the  rule  as  stated  by  the  judges  in  Calye's  case. 
It  is  true  that  the  liability  of  the  innkeeper,  by  the  custom  of  the  realm, 
was  not  unlimited  and  absolute,  and  that  the  loss  of  the  goods  of  the 


LIABILITY    FOR    GUESTS    PROPERTY.  215 

guest  was  merely  presumptive  evidence  of  the  default  of  the  landlord. 
But  this  presumption  could  only  be  repelled,  by  proof  that  the  loss 
was  attributable  to  the  negligence  or  fraud  of  the  guest,  or  the  act  of 
God  or  the  public  enemy.  No  degree  of  diligence  or  vigilance  on  tin- 
part  of  the  innkeeper  could  absolve  him  from  his  common-law  obliga- 
tion for  the  loss  of  his  guest,  unless  traceable  to  one  of  these  exceptional 
causes.  (Shaw  v.  Berry,  31  Maine,  478;  Sibley  v.  Aldrich,  33  X.  H. 
553  [206].)  The  rule  is  salutary,  and  should  be  steadily  and  firmly 
upheld,  subject  to  the  statutory  regulations  for  the  protection  of  hotel 
proprietors  from  fraud  and  negligence  on  the  part  of  their  guests. 

We  are  of  the  opinion  that  the  judgment  should  be  affirmed,  on  the 
ground-  that  the  testator  was  an  insurer  of  the  property  committed  to 
his  charge,  and  that  its  loss  has  not  been  traced  to  either  of  the  causes 
recognised  as  creating  an  exception  to  the  general  rule  of  liability. 

It  is  proper  to  remark,  that  if  the  law  were  otherwise,  and  the  inn- 
keeper were  responsible  only  for  actual  negligence,  it  would  not  avail 
the  defendant  on  the  appeal  papers  in  the  present  case,  as  they  come  to 
us  from  the  court  below.  The  findings  of  the  referee  are  not  embodied 
in  the  case,  as  required  by  the  existing  practice ;  and  on  reference  to 
the  record  prefixed  to  the  case,  it  appears  that  the  defendant  failed  to 
repel  by  proof  the  conceded  presumption  of  negligence.  (Bissell  v. 
Hamlin,  20  N.  Y.  519 ;   Grant  v.  Morse,  22  id.  323.) 

The  judgment  should  be  affirmed,  with  costs. 

All  the  judges  concurred  in  the  opinion  of  Porter,  J.,  except  Denio, 
Ch.  J.,  who  delivered  a  dissenting  opinion,  in  which  Brown,  J.,  con- 
curred. 

Judgment  affirmed. 


FAUCETT  v.   NICHOLS. 
64  N.  Y.  377.     1876. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department  affirming  a  judgment  in  favour  of 
plaintiff,  entered  upon  a  verdict.  (Reported  below,  2  Hun,  521 ; 
4  T.  &  C.  597.) 

Andrews,  J.  The  common-law  liability  of  innkeepers  for  loss  of  the 
property  of  guests  by  fire,  occurring  without  the  innkeeper's  fault  or 
negligence,  as  declared  in  Hulett  v.  Swift  (33  N.  Y.  571  [212]),  was 
modified  and  limited  by  chapter  638  of  the  Laws  of  1866.  The  case  of 
Hulett  v.  Swift  was  decided  in  1865,  and  it  was  held  that  an  innkeeper 
was  an  insurer  of  the  property  committed  to  his  custody  by  a  guest,  as 
against  loss  by  fire,  and  the  defendant  in  that  case  was  made  respon- 
sible for  the  goods  of  the  plaintiff  in  his  custody  as  innkeeper,  which 


216  INNKEEPERS. 

were  consumed  by  fire  while  in  the  barn  of  the  defendant.  The  act  of 
1866  seems  to  have  been  passed  in  view  of  this  decision,  and  to  mitigate 
the  rigour  of  the  rule  declared  in  Hulett  v.  Swift,  The  statute  is  as 
follows  :  "  No  innkeeper  shall  be  liable  for  the  loss  or  destruction  by 
fire  of  property  received  by  him  from  a  guest,  stored,  or  being  with  the 
knowledge  of  such  guest,  in  a  barn  or  outbuilding,  when  it  shall  appear 
that  such  loss  or  destruction  was  the  work  of  an  incendiary,  and  occurred 
without  the  fault  or  negligence  of  such  innkeeper." 

The  burden  is  upon  the  innkeeper  claiming  the  benefit  of  this  statute 
to  shew  that  the  fire  occasioning  the  loss  of  the  goods  of  the  guest  was 
an  incendiary  one,  and  the  absence  of  negligence  on  his  part  connected 
with  the  transaction.  He  is  exempted  from  liability  when  it  "shall 
appear"  that  the  circumstances  exist  which,  under  the  statute,  exonerate 
him  from  liability.  The  defendant  relied  upon  this  statute  as  a  de- 
fence in  this  case,  and  evidence  was  given  on  his  part  tending  to  show 
that  the  fire  which  destroyed  the  barn,  in  which  at  the  time  were  the 
horses  and  wagon  of  the  plaintiff,  was  the  work  of  an  incendiary,  and 
that  it  was  set  in  the  hay  loft,  to  which  communication  was  had  through 
a  window  of  the  barn  opening  into  an  alley  in  the  rear,  which  con- 
nected two  streets.  This  window  had  been  left  open  for  several  weeks, 
and  during  this  time  lumber  was  piled  against  the  barn,  so  that  a  per- 
son could  easily  climb  upon  it  and  enter  the  loft  through  the  open  win- 
dow. The  court  submitted  to  the  jury  the  question  whether  the 
defendant,  in  leaving  the  door  of  the  loft  open,  was,  under  the  circum- 
stances, chargeable  with  negligence,  and  ruled,  in  substance, 
that  if  the  jury  should  find  that  this  was  a  negligent  act  which 
contributed  to  occasion  an  incendiary  firing  of  the  barn,  the  defendant 
was  liable  for  the  loss  sustained  by  the  plaintiff. 

The  omission  on  the  part  of  a  bailee  to  use  due  care  in  protecting  the 
property  entrusted  to  him  subjects  him  to  liability  for  loss  or  injury 
resulting  from  such  omission;  and  he  is  not  exempted  from  respon- 
sibility, although  the  goods  have  been  lost  by  the  felony  of  a  third 
person,  if  his  negligence  furnished  the  occasion  and  opportunity  for  its 
commission. 

In  Coggs  i\  Bernard  (2  Ld.  Raymond,  909  [4])  Lord  Holt,  in  con- 
sidering the  second  sort  of  bailment  enumerated  by  him,  viz.,  com- 
modatum,  says :  "  But  if  the  bailee  put  his  horse  in  his  stable,  and  he 
were  stolen  from  thence,  the  bailee  shall  not  be  answerable  for  him  ;  but 
if  he  or  his  servant  leave  the  house  or  stable  doors  open  and  the  thieves 
take  the  opportunity  of  that  and  steal  the  horse,  he  will  be  chargeable ; 
because  the  neglect  gave  the  thieves  the  occasion  to  steal  the  horse." 
(See  also  Dansey  v.  Richardson,  3  E.  &  B.  165;  Schwerin  v.  McKie, 
51  N.  Y.  180.)  Thefts  and  burglaries  are  the  frequent  causes  of  the 
loss  of  goods,  and  a  bailee  may  reasonably  be  required  to  take  notice 
that  the  desire  to  obtain  them  is  an  inducement  to  the  commission  of 
crime,  and  to  act  in  view  of  this  fact,  and  exercise  due  care  to  protect 


LIABILITY    FOR    GUEST'S    PROPERTY. 


them  from  thieves  and  burglars.  If  the  horses  of  the  plaintiff  had  bi 
stolen  from  the  barn  of  the  defendant  and  his  liability  depended  upon 
the  existence  of  negligence  on  his  part,  on  proof  that  the  doors  w< 
left  unlocked  and  open,  and  that  no  means  had  been  taken  to  watch 
or  guard  the  barn,  it  would  be  for  the  jury  to  say  whether,  under  the 
circumstances,  he  was  guilty  of  negligence.  It  must  be  admitted  that 
the  fact  that  the  window  of  the  hay  loft  was  left  open,  and  that  the 
barn  was  accessible  from  the  alley,  is  not  very  strong  evidence-of  negli- 
gence. The  crime  of  incendiarism  is  much  less  frequent  than  theft  or 
robbery  and  is  prompted,  ordinarily,  by  different  motives.  But  we 
cannot  say  that  the  fact  proved  furnished  no  evidence  upon  the  qu 
tion  of  negligence.  Negligence  is  usually  a  question  of  fact  and  not  of 
law.  The  jury  understood  the  condition  and  the  location  of  the 
premises,  and  as  practical  men  could  judge  whether  proper  care  required 
the  defendant  to  keep  the  window  of  the  loft  closed,  as  a  protection 
against  incendiaries,  who  might  from  wantonness,  revenge  or  other 
motive,  upon  opportunity  offered,  set  fire  to  the  premises.  I  am  of 
opinion,  therefore,  that  the  question  of  the  defendant's  negligence  was 
a  question  of  fact  and  not  of  law,  and  was  properly  submitted  to  the 
jury,  and  that  negligence  on  the  part  of  an  innkeeper  in  omitting  pre- 
cautions which  a  reasonable  and  prudent  man  ought  to  take  to  guard 
against  an  incendiary  fire,  is  such  negligence  as  will  deprive  him  of  the 
benefit  of  the  statute.  The  loss  or  destruction  of  the  property  of  the 
guest  does  not  in  that  case  occur  without  the  innkeeper's  fault  or  negli- 
gence. Negligence  which  precedes  and  facilitates  the  commission  of 
the  crime,  is  as  much  within  the  statute  as  the  negligent  omission  to 
protect  and  remove  the  property  of  the  guest  after  the  fire  had  com- 
menced. Whether  the  fire  was  incendiary,  or  accidental,  or  negligent 
merely,  was  a  material  question  on  the  trial.  There  was  no  direct 
evidence  as  to  how  it  originated.  Circumstances  were  proved  on  the 
part  of  the  defendant  which  would  have  justified  the  jury  in  finding  that 
it  was  the  work  of  an  incendiary.     [Discussion  of  evidence  omitted.] 

The  fact  in  issue,  to  which  this  evidence  related,  was  whether  the 
defendant's  barn  was  fired  bv  an  incendiarv.  If  there  had  been  a  series 
of  incendiary  fires  in  that  village  previous  to  and  near  the  time  of  the 
fire  in  question,  could  not  this  fact  have  been  shewn  in  aid  of  the 
defence  ?  It  cannot  be  denied  that  in  connection  with  the  other  cir- 
cumstances proved,  it  would  have  produced  upon  the  mind  a  strong 
conviction  that  the  fire  in  the  defendant's  barn  was  also  caused  by  an 
incendiary. 

The  proof  offered  was  not  merely  of  facts  tending  to  establish  a  | 
sumption,  that  an  attempt  to  fire  another  building  on  the  same  night 
had  -been  made,  but  of  an  attempt  made,  which  failed.     There  was 
here  no  uncertainty  as  to  the  collateral  fact  sought  to  be  proved,  and 
if  the  fact  had  been  admitted  that  incendiaries  were  at  work  in  a 
place  in  the  village  on  the  same  night,  it  would  have  had  a  direel  and 


218  INNKEEPERS. 

material  bearing  upon  the  question  as  to  the  character  of  the  fire  which 
destroyed  the  barn. 

This  is  not  the  case  of  the  trial  of  a  person  charged  with  the  crime  of 
arson  in  burning  the  barn.  If,  on  such  a  trial,  it  was  sought  to  show, 
as  an  independent  and  disconnected  fact,  that  the  prisoner  on  the  same 
night  attempted  to  burn  another  building  in  the  same  village,  it  would 
be  inadmissible  under  the  general  rule  that  on  the  trial  of  a  prisoner  for 
one  crime,  proof  cannot  be  given  that  he  had  committed  another. 
There  are  some  well-known  exceptions  to  this  rule  when  the  object  is- 
to  show  the  quo  animo,  as  to  the  transaction  on  trial.  But  in  investi- 
gating in  a  civil  suit  a  question  depending  solely  upon  circumstantial 
evidence,  it  would,  I  think,  be  holding  too  strict  a  rule  to  refuse  evidence 
such  as  was  offered  in  this  case,  which  is  connected  with  the  principal 
fact  by  circumstances  which  naturally  tend  to  establish  it. 

There  is  no  fixed  and  definite  rule  by  which  it  can  be  determined 
whether  a  collateral  fact  is  so  remote  as  to  be  inadmissible  to  support 
the  principal  fact  sought  to  be  established.  The  question  must,  to  a 
considerable  extent,  be  decided  in  each  case,  on  its  own  circumstances, 
and  we  are  of  opinion  that  the  proof  offered,  to  which  we  have  referred, 
ought  to  have  been  admitted. 

The  judgment  should  be  reversed  and  a  new  trial  ordered.  All 
concur.     Judgment  reversed. 


JOHNSON  v.   CHADBORN  FINANCE  CO. 
89  Minn.  310  ;   94  N.  W.  R.  874 ;   99  Am.  St.  R.  571.     1903. 

Action  in  the  district  court  for  Hennepin  county  to  recover  $1335 
for  the  loss  of  personal  baggage  and  property  destroyed  by  fire  while 
plaintiff  was  a  guest  at  defendant's  hotel.  The  case  was  tried  before 
Pond,  J.,  and  a  jury,  which  rendered  a  verdict  in  favour  of  defendant. 
From  an  order  denying  a  motion  for  judgment  notwithstanding  the 
verdict  or  for  a  new  trial,  plaintiff  appealed.  Reversed,  and  new  trial 
granted. 

Collins,  J.  The  defendant  in  this  action,  a  corporation,  was  the 
proprietor  of  what  was  known  as  the  "Hotel  Vendome,"  in  the  city  of 
Minneapolis.  The  plaintiff  and  his  wife,  residents  of  Morris,  in  this 
state,  while  on  their  way  to  Florida,  stopped  for  a  few  days  at  the  Ven- 
dome, making  preparations  for  their  journey.  They  were  undoubtedly 
transients,  and  were  in  this  building  when  a  fire  occurred,  February  7, 
1902.  They  lost  a  quantity  of  personal  property,  such  as  wearing 
apparel  and  ornaments,  and  brought  this  action  to  recover  the  value  of 
the  same. 

There  was  a  general  verdict  for  defendant,  and  the  jury  also  answered 


LIABILITY    FOR    GUESTS    PROPERTY.  219 

three  questions  submitted  to  them  by  the  court.  By  these  ansv. 
they  found  that  the  defendant  was  not  guilty  of  negligence  by  reason  of 
its  failure  to  remove  or  cause  to  be  removed  the  plaintiff's  property 
from  the  building  at  the  time  of  the  fire.  They  also  found  that  the 
plaintiff  was  not  guilty  of  negligence  contributing  to  the  loss  by  reason 
of  his  failure  to  remove  the  goods  from  his  room,  while  the  third  answer 
related  to  the  value  of  the  goods.  Thereafter  the  plaintiff,  upon  a 
settled  case,  made  a  motion  for  judgment  notwithstanding  the  verdict, 
or  for  a  new  trial.     This  motion  being  denied,  plaintiff  appealed. 

The  complaint  alleged  that  the  defendant  was  a  hotel  or  inn  keeper, 
and  also  that  the  goods  were  lost  through  its  negligence.  The  answer 
denied  that  the  establishment  in  question  was  a  hotel  or  inn,  and  thereby 
the  burden  of  proof  was  cast  upon  the  plaintiff  to  show,  by  competent 
testimony,  that  the  defendant  was  such  a  proprietor,  as  alleged  in  the 
complaint.  Upon  the  testimony  the  court  below  charged  the  jury  that 
the  establishment  was  not  a  hotel  or  an  inn,  within  the  meaning  of  the 
law,  and  that  the  defendant  was  not  a  hotel  or  an  inn  keeper.  The  view 
taken  by  the  trial  court  seems  to  have  been  that  the  establishment  was 
shown  to  be  nothing  but  a  lodging  house,  and  then  the  rule  was  applied 
governing  common  lodging-house  keepers  —  in  effect,  that  the  plaintiff 
could  not  recover  unless  the  defendant  failed  to  exercise  ordinary  care 
at  the  time  of  the  fire,  and  was  thus  guilty  of  negligence  by  reason  of 
which  the  goods  were  lost.  In  instructing  the  jury  upon  the  subject 
of  defendant's  negligence,  the  trial  court  also  charged  that  the  burden 
of  proof  was  upon  the  plaintiff  to  show  that  the  defendant  was  negli- 
gent. 

1.  The  first  question  which  we  wish  to  consider  grows  out  of  the  fact 
that  the  court  charged  the  jury  that  the  building  in  question  was  not 
a  hotel  or  an  inn,  and  that  the  defendant  was  not  a  hotel  or  an  inn 
keeper.  The  facts  in  relation  to  the  character  of  the  establishment  were 
undisputed.  The  building  was  originally  fitted  up  for  offices  in  the 
upper  stories,  with  stores  upon  the  ground  floor.  One  of  these  stores 
had  been  used  as  a  restaurant,  the  proprietors  being  Regan  Bros.  The 
defendant  finally  converted  the  upper  stories  of  the  building  into  first- 
class  sleeping  apartments.  The  office  was  upon  the  ground  floor  in  one 
of  the  storerooms  before  mentioned.  The  business  was  conducted, 
concededly,  as  is  the  business  in  any  large,  first-class  hotel,  except  that 
the  defendant  itself  did  not  furnish  meals  for  the  guests.  It  had  no 
dining  room  or  cafe.  A  door  opened  from  the  general  entrance  or  hall- 
way into  the  restaurant  or  cafe  before  mentioned,  but  the  defendant 
had  nothing  to  do  with  the  management  or  operation  of  the  cafe. 

The  establishment  did  not  come  within   the  definition  someti; 
given  to  the  term  "hotel"  or  "inn,"  and  yet  it  answered  the  descrip- 
tion of  Petersdorff,  who,  in  his  Abridgment,  says  that  an  inn  is  a  house 
for  the  reception  and  entertainment  of  all  comers  for  gain.     That  the 
Vendome  received  and  entertained  all  comers,  to  the  extent  of  supply- 


220  INNKEEPERS. 

ing  them  with  rooms,  for  compensation,  is  not  disputed.  Justice  Best 
describes  an  inn  as  a  house,  the  owner  of  which  holds  out  that  he  will 
receive  all  travellers  and  sojourners  who  are  willing  to  pay  a  price  ade- 
quate to  the  sort  of  accommodation  provided,  and  who  come  in  a  state 
in  which  they  are  fit  to  be  received.  Other  writers  have  defined  an 
inn  as  a  house  where  a  traveller  is  furnished  with  everything  he  has 
occasion  for  while  on  his  way,  and  that  in  an  inn  there  must  be  provi- 
sion for  the  essential  needs  of  a  traveller  upon  his  journey  —  lodging  as 
well  as  food.  An  inn  has  often  been  defined  as  a  place  for  the  lodging 
and  entertainment  of  travellers  and  passengers,  their  horses  and  attend- 
ants, for  a  reasonable  compensation.  There  is  no  doubt  that  circum- 
stances and  changes  in  modes  of  life  and  innovations  in  methods  of 
travelling  have  very  much  affected  and  qualified  the  character  of  hotels 
and  inns,  and  consequently  the  definitions  thereof,  of  fifty  years  ago. 
At  that  time  an  inn  was  a  house  where  the  entertainment  was  for  both 
man  and  beast  — ■  for  one  quite  as  much  as  for  the  other.  In  these  days 
very  few  people  travel  with  horses,  and  the  old  hostelries  have  almost 
entirely  disappeared.  Few  hotel  keepers  in  the  state,  in  places  of  any 
size,  have  barns  of  their  own  in  connection  with  their  hotels. 

With  these  changes  in  the  ways  of  the  travelling  public,  and  innova- 
tions in  hotel  keeping,  the  definitions  which  have  heretofore  prevailed 
must  also  be  changed  and  modified.  In  many  cities  all  of  the  first-class 
places  for  entertainment  of  travellers  are  conducted  upon  the  European 
plan  solely  —  the  rooms  being  furnished  and  rented,  and  the  guests 
permitted  to  dine  where  they  please  —  or  are  kept  upon  both  European 
and  American  plans.  Usually  there  is  a  cafe  owned  and  operated  by 
the  hotel  proprietor,  but,  as  stated,  in  this  particular  instance  there 
was  none.  Just  what  should  be  held  if  a  case  presented  itself  where 
there  was  no  cafe  or  restaurant  in  connection  with  such  an  establish- 
ment, we  are  not  prepared  to  say ;  but  here  there  was  a  cafe  in  the 
building  —  access  thereto  being  afforded  from  the  office  and  sleeping 
apartments  without  going  out  of  doors  —  and  it  was  shown  by  the  testi- 
mony that  on  the  letter-heads  furnished  by  the  defendant  to  the  guests 
of  its  house  it  was  stated  that  there  was  a  "first-class  cafe  in  connec- 
tion ;  popular  prices."  And  it  is  not  disputed  that  the  Regan  Bros.' 
cafe  was  referred  to  in  this  advertisement.  The  building  itself  was  a 
hotel,  according  to  large  signs  upon  the  outside  thereof  —  three  or  more 
in  number  —  announcing  it  as  the  "Hotel  Venome"  and  as  an  "Euro- 
pean Hotel."  It  also  appeared  from  the  proofs  that  the  defendant  had 
availed  itself  of  the  innkeepers'  law  (G.  S.  1894,  §  7997,  et  seq.),  by  post- 
ing notices  in  each  room,  whereby  the  proprietor  attempted  to  restrict 
its  liability  to  the  occupants  of  the  rooms  in  case  of  loss  of  property. 
If  the  establishment  was  not  a  hotel  or  inn,  it  was  masquerading  as 
one  ;  and  we  are  of  the  opinion  that  its  proprietor  would  have  promptly 
resented  a  charge  made,  before  the  fire,  that  it  was  nothing  but  a  lodg-, 
imr-house. 


LIABILITY    FOR    GUESTS    PROPERTY.  221 

Upon  the  ground  of  public  policy,  we  think  it  must  be  held  that  where 
the  proprietor  of  such  an  establishment  as  this  was  advertises  and 
represents  to  his  guests  that  he  is  keeping  a  hotel  or  inn  —  a  public 
place  for  the  entertainment  of  transient  guests  —  by  means  of  signs 
upon  the  outside  of  the  building,  posts  notices  in  the  rooms  as  an  inn- 
keeper, and  advertises  and  represents  that  there  is  a  cafe"  in  connectioD 
with  his  sleeping  apartments,  thus  representing  to  them  that  he  fur- 
nishes not  only  rooms,  but  meals,  he  must  be  bound  thereby,  and  cannot 
avoid  his  duties  and  responsibilities  as  a  hotel  or  an  inn  keeper  by  simply 
showing  that  the  cafe  in  the  same  building  is  owned  and  operated  In- 
other  persons,  and  that  he  has  no  hand  or  voice  in  its  management. 

2.  The  second  question  in  this  case,  of  importance,  is  as  to  the  extent 
of  an  innkeeper's  liability.  That  he  has  been  held  to  a  very  stringent, 
unyielding  rule  in  this  respect  is  manifest  from  an  examination  of  the 
cases.  The  policy  of  the  law  has  been  to  render  him  liable  to  the  same 
extent  as  a  common  carrier  of  goods  for  hire,  although  there  has  been 
much  doubt  expressed  as  to  this  extraordinary  responsibility  in  some 
cases.  That  the  law  requires  of  him  extraordinary  diligence  in  many 
respects  —  such  as  the  care  of  his  guests'  baggage  or  other  property 
which  has  been  confided  to  his  actual  custody  —  there  can  be  no  doubt. 

In  the  case  of  Lusk  v.  Belote,  22  Minn.  468,  the  common-law  rule 
was  adopted,  and  it  was  held  that  a  landlord  is  responsible  for  the  loss 
in  his  inn  of  the  goods  of  a  traveller  who  is  his  guest,  except  when  such 
loss  arises  from  the  negligence  of  the  guest,  or  the  act  of  God  or  of  the 
public  enemy.  There  the  guest's  goods  had  been  stolen  from  his  room. 
It  must  be  admitted  that  there  has  been  a  strong  indisposition  upon 
the  part  of  courts  to  admit  of  any  relaxation,  just  or  unjust,  of  this 
rule,  and  it  has  been  applied  to  all  classes  of  public  hotels.  In  Edwards 
on  Bailments,  §  462,  it  is  stated  as  a  reason  for  so  stringent  a  rule  that 
it  was  established  in  a  period  when  theft  and  robbery  were  quite  fre- 
quent, and  innkeepers  were  thought  to  have  many  opportunities,  and 
some  temptations,  to  combine  and  connive  with  ruffians  and  others  in 
the  plunder  of  strangers,  and  that  it  has  been  continued  in  more  modern 
times  on  the  grounds  of  public  utility  and  convenience.  In  two  cases 
the  reason  for  the  continuance  of  such  a  doctrine  has  been  discussed 
with  great  vigour,  and,  under  the  circumstances  there  appearing,  not 
improperly.  Hulett  v.  Swift,  33  N.  Y.  571  [212] ;  Wilkins  v.  Earle, 
44  N.  Y.  172  [237].  But  the  fact  is  that,  in  nearly  all  of  the  cases 
supporting  the  doctrine  of  absolute  liability,  unexplained  thefts  or  losses 
of  property  were  involved.  No  distinction  was  made  between  goods 
stolen,  and  goods  destroyed  by  fire  for  which  the  landlord  was  in  no 
manner  responsible.  That  there  might  be  a  well-defined  distinction 
does  not  seem  to  have  been  thought  of. 

But  it  must  be  admitted  that  the  logical  consequence  of  the  strict 
rule  is  that  no  discrimination  can  be  made  between  losses  arising  trom 
thefts  by  other  guests,  or  by  servants,  and  those  which  result  from  such 


222  INNKEEPERS. 

an  entirely  distinct  cause  as  an  accidental  fire.  However,  in  a  number 
of  states  there  has  been  a  departure,  and  there  has  been  adopted  what 
is  called  the  "rule  of  prima  facie  liability,"  and  there  are  also  decisions 
in  England  to  the  same  effect.  The  doctrine  is  thus  stated  in  16  Am.  & 
Eng.  Enc.  (2d  ed.)  536 :  "  An  innkeeper  is  prima  facie  liable  for  the 
loss  of  goods  in  his  charge,  but  may  discharge  himself  by  showing  that 
it  happened  by  irresistible  forces,  though  not  the  act  of  God  or  a  public 
enemy,  or  by  inevitable  accident,  or  otherwise,  without  fault  or  negli- 
gence on  his  part"  ;  a  number  of  cases  being  cited  in  support  thereof. 
Cutler  v.  Bonney,  30  Mich.  259,  and  Merritt  v.  Claghorn,  23  Vt.  177 
[202],  are  very  strong  opinions  in  support  of  this  rule,  and  in  them  the 
subject  is  discussed  with  much  force  and  ability.  Vance  v.  Throck- 
morton, 5  Bush  (Ky.)  41,  is  also  a  strong  case  in  support  of  this  view. 
See  also  cases  cited  in  note  to  16  Am.  &  Eng.  Enc.  (2d  ed.)  538. 

Conceding  that  the  rigorous  rule  before  stated  was  just  and  neces- 
sary in  its  day,  there  never  was  any  reason  or  foundation  for  it  in 
cases  where  the  loss  was  occasioned  by  an  accidental  fire,  for  which 
the  landlord  was  not  responsible,  and  when  no  negligence  in  connec- 
tion therewith  could  be  attributed  to  him.  In  the  present  case  the  fire 
originated  upon  premises  not  occupied  by  the  defendant,  and  over  which 
it  had  no  control,  although  in  the  same  building.  From  the  record,  it 
does  not  appear  that  the  fire  spread  into  that  part  of  the  building 
occupied  by  the  defendant  through  its  negligence ;  and,  as  before  stated, 
the  jury  found,  in  answer  to  a  special  question,  that  the  defendant  was 
not  negligent  in  an}'  manner  which  contributed  to  the  loss.  With  these 
conflicting  rules  in  respect  to  the  liability  of  the  proprietor  of  a  hotel  or 
inn,  we  are  justified  in  stating  one  to  govern  this  case  which  is  more 
just  and  sensible  than  the  common-law  doctrine,  before  referred  to ; 
but  we  are  not  quite  willing  to  go  to  the  extent  that  some  of  the  courts 
have,  and  absolve  the  landlord  from  all  liability  in  case  of  loss  through 
thefts  if  he  can  show  that  they  were  unavoidable  accidents,  or  were 
otherwise  committed  without  fault  or  negligence  on  his  part.  We  do 
not  think  that  the  landlord  of  a  public  hotel  or  inn  should  in  every  case 
of  loss  be  held  responsible  to  the  same  extent  as  a  common  carrier,  and 
that  under  some  circumstances  they  do  not  stand  upon  precisely  the 
same  footing.  Public  policy  does  not  require  it,  nor  is  such  a  doctrine 
reasonable. 

Wre  therefore  adopt  what  is  known  as  the  "rule  of  prima  facie  lia- 
bility." All  losses  of  property  incurred  by  guests  at  a  public  hotel 
or  inn  by  fire  are  prima  facie  due  to  the  negligence  of  the  proprietor, 
but  he  may  discharge  or  relieve  himself  from  liability  by  showing  that 
the  loss  happened  by  an  irresistible  force  or  unavoidable  accident,  such 
as  a  fire  originating  upon  premises  over  which  he  had  no  control,  with- 
out fault  or  negligence  on  his  part.  This  doctrine  does  not  infringe 
upon  the  common-law  rule,  which  makes  him  responsible  for  all  thefts 
from  within  his  house,  or  unexplained,  whether  committed  by  guests, 


LIABILITY    FOR    GUEST  S    PROPERTY. 

servants,  or  strangers,  upon  the  general  principle  that  an  innkeeper 
guaranties  the  good  behaviour  of  all  who  may  be  under  his  roof  —  par- 
ticularly his  servants.  The  doctrine  which  we  adopt,  and  which  musl 
control  this  case,  is  that  an  action  cannot  be  maintained  against  a  hotel 
or  inn  keeper  by  a  guest  to  recover  for  property  lost  by  fire  which  v. 
occasioned  by  unavoidable  casualty  or  superior  force,  and  without  am 
negligence  on  the  part  of  the  innkeeper  or  his  servants.  A  landlord  i- 
not  liable  for  a  loss  by  fire  happening  through  a  cause  beyond  his  con- 
trol. He  must  be  reasonably  diligent  under  the  circumstances  known 
to  exist  after  the  fire  breaks  out,  but  it  is  not  necessary  that  he  should 
be  extremely  vigilant  or  cautious. 

This  rule  is  more  in  accordance  with  our  views  of  justice,  and  will, 
we  believe,  commend  itself  to  all.  As  before  stated,  the  jury  found 
that  there  was  no  negligence  on  the  part  of  either  plaintiff  or  defendant. 
If  this  cause  had  been  properly  submitted  to  the  jury,  and  the  jury  had 
been  instructed  along  the  lines  herein  indicated,  judgment  could  prop- 
erly have  been  ordered  for  the  defendant,  but  such  was  not  the  case. 
The  trial  court  was  in  error  not  only  as  to  the  nature  of  the  establish- 
ment kept  by  the  defendant,  but  it  also  charged  that  the  burden  of 
proof  was  upon  the  plaintiff  to  show  that  the  defendant  was  negligent. 
Such  is  not  the  rule,  under  the  doctrine  of  prima  facie  liability,  herein 
indorsed. 

3.  The  question  of  the  extent  of  defendant's  liability  (that  is,  for  what 
goods  the  plaintiff  may  recover)  is  not  before  us.  It  does  not  seem  to 
have  been  in  controversy  in  the  court  below,  for,  without  objection, 
the  jury  was  permitted  to  find  the  value  of  all  the  goods  lost  by  plain- 
tiff. By  not  discussing  this  question  we  do  not  want  to  be  understood 
as  indorsing  this  view.  That  question  can  be  considered  after  it  has 
been  passed  upon  by  the  court  below. 

Order  reversed  and  new  trial  granted. 


FAY  v.   PACIFIC   IMPROVEMENT  CO. 
93  Cal.  253;  28  Pac.  R.  943;   16  L.  R.  A.  188;  27  Am.  St.  R.  198.  1891. 

The  Court.  Upon  further  consideration  of  this  cause,  after  hearing 
in  Bank,  we  are  satisfied  with  the  conclusion  reached  in  Department, 
and  with  the  opinion  there  rendered,  and  for  the  reasons  stated  in  said 
opinion,  the  judgment  and  order  appealed  from  are  affirmed. 

Beatty,  C.  J.,  and  Paterson,  J.,  dissented. 

The  following  is  the  opinion  of  Department  Two,  above  referred  to, 
rendered  on  the  23d  of  June,  1891  :  — 

De  Haven,  J.  The  plaintiff  recovered  judgment  against  the  de- 
fendant for  damages  occasioned  by  the  loss  of  her  jewellery,  wearing 


224  INNKEEPERS. 

apparel,  and  other  articles  of  personal  property  needed  for  her  personal 
use  consumed  by  fire  at  the  burning  of  the  Hotel  Del  Monte,  April 
1st,  1887,  of  which  the  defendant  was  at  that  time  the  proprietor. 

The  court  below  found  that  the  Hotel  Del  Monte  was,  at  the  date 
named,  a  public  inn,  and  that  plaintiff  was  a  guest  therein.  On  this 
appeal,  the  defendant  claims  that  the  evidence  does  not  sustain  these 
findings  ;  and  also  that  the  burning  of  the  hotel  was  an  irresistible  super- 
human cause,  for  which  it  is  not  liable,  and  that  it  is  not,  in  any  event, 
liable  for  plaintiff's  diamonds  and  other  jewellery,  because  not  deposited 
in  defendant's  safe. 

1 .  An  inn  is  a  house  which  is  held  out  to  the  public  as  a  place  where 
all  transient  persons  who  come  will  be  received  and  entertained  as  guests 
for  compensation,  —  a  hotel.  In  Wintermute  v.  Clark,  5  Sand.  247, 
an  inn  is  defined  as  a  public  house  of  entertainment  for  all  who  choose 
to  visit  it,  and  this  definition  was  quoted  with  approval  by  this  court 
in  Pinkerton  v.  Woodward,  33  Cal.  596.  The  fact  that  the  house  is 
open  for  the  public,  that  those  who  patronise  it  come  to  it  upon  the 
invitation  which  is  extended  to  the  general  public,  and  without  any 
previous  agreement  for  accommodation  or  agreement  as  to  the  duration 
of  their  stay,  marks  the  important  distinction  between  a  hotel  or  inn 
and  a  boarding-house.  This  difference  is  thus  stated  in  Schouler  on 
Bailments :  "  An  inn  is  a  house  where  a  keeper  holds  himself  out  as 
ready  to  receive  all  who  may  choose  to  resort  thither  and  pay  an  ade- 
quate price  for  the  entertainment;  while  the  keeper  of  a  boarding- 
house  reserves  the  choice  of  comers  and  the  terms  of  accommodation, 
contracting  specially  with  each  customer,  and  most  commonly  arrang- 
ing for  long  periods  and  a  definite  abode."  (Schouler  on  Bailments, 
253.) 

We  think  the  evidence  in  this  case  is  full  and  complete  to  the  point 
that  the  Hotel  Del  Monte  was  a  public  inn.  It  not  only  had  a  name 
indicating  its  character  as  such,  but  it  was  also  shown  that  it  was  open 
to  all  persons  who  have  a  right  to  demand  entertainment  at  a  public 
house ;  that  it  solicited  public  patronage  by  advertising  and  in  the  dis- 
tribution of  its  business  cards,  and  kept  a  public  register  in  which 
its  guests  entered  their  names  upon  arrival  and  before  they  were  assigned 
rooms ;  that  the  hotel,  at  its  own  expense,  ran  a  coach  to  the  railroad 
station  for  the  purpose  of  conveying  its  patrons  to  and  from  the  hotel ; 
that  it  had  its  manager,  clerks,  waiters,  and  in  its  interior  management 
all  the  ordinary  arrangements  and  appearances  of  a  hotel,  and  the 
prices  charged  were  for  board  and  lodging.  These  facts  were  certainly 
sufficient  to  justify  the  court  in  finding,  as  it  did,  that  the  appellant 
was  an  innkeeper.  (Krohn  v.  Sweeney,  2  Daly,  200.)  Nor  was  the 
force  of  this  evidence  in  any  wise  modified  by  the  fact  that  the  hotel 
was  not  immediately  upon  a  highway,  or  that  the  grounds  upon  which 
it  stood  were  enclosed  and  the  gates  closed  at  night.  The  location  of 
the  hotel,  the  extent  of  the  grounds  surrounding  it,  and  the  manner  in 


LIABILITY    FOR    GUESt's    PROPERTY 

—  —  •> 

which  these  grounds  were  improved,  and  reserved  for  the  exclu  i 
and  enjoyment  of  those  who  patronised  it,  doubtless  made  the  hotel 
more  attractive  to  those  who  chose  to  make  a  transient  resort  of  it   I 
did  not  convert  it  into  a  mere  boarding-house.     A  hotel  is  none  the  les 
one  because  in  some  respects  it  may  be  conducted  differently  or  hi 
more  attractions  than  other  public  hotels,  so  long  as  it  is  held  out  to 
the  public  as  a  place  for  the  entertainment  of  all  transient  persons 
who  may  have  occasion  to  patronize  it. 

"Modes  of  entertainment  alter  with  the  fashion  of  the  aye,  and  to 
preserve  a  clear  definition  is  not  easy.  It  is  not  wayfarers  alone,  or 
travellers  from  a  distance,  that  at  the  present  day  give  character  to  an 
inn,  the  point  being  rather  that  people  resort  to  the  house  habitually, 
no  matter  whence  corning  or  whither  going,  as  for  transient  lodging  and 
entertainment."     (Schouler  on  Bailments,  249.) 

2.  The  evidence  shows  that  the  plaintiff  was  a  guest,  and  not  a  boarder. 
The  fact  that  upon  her  arrival,  and  before  being  assigned  to  her  room, 
she  ascertained  what  she  would  have  to  pay  for  the  room  and  board  is 
not  sufficient  of  itself  to  show  that  she  was  not  received  as  a  guest. 
(Pinkerton  v.  Woodward,  33  Cal.  597;  Hancock  v.  Rand,  94  X.  V. 
1,  46  Am.  Rep.  112  [170];  Jalie  v.  Cardinal,  35  Wis.  118  [228];  Hal! 
v.  Pike,  100  Mass.  495;  Berkshire  Woollen  Co.  v.  Proctor,  7  Cush  417 
[232].) 

The  Del  Monte  being  a  public  hotel,  in  the  absence  of  evidence  show- 
ing the  plaintiff  went  there  as  a  boarder,  the  presumption  would  be 
that  she  went  there  as  a  guest.  (Hall  v.  Pike,  100  Mass.  495.)  Not 
only  does  the  evidence  fail  to  overthrow  this  presumption,  but  the  testi- 
mony of  the  plaintiff  shows  that  she  was  there  as  a  mere  temporary  so- 
journer, without  any  agreement  as  to  the  time  she  should  stay,  and  with 
only  the  intention  on  her  part  of  resting  a  week  or  two,  and  then  pro- 
ceeding to  the  East.  She  obtained  no  reduction  of  price  in  considera- 
tion of  an  agreement  to  remain  a  definite  time,  or  as  a  boarder  ;  nor  was 
there  anything  said  from  which  it  could  be  inferred  that  there  was  any 
understanding  between  her  and  the  defendant  that  she  was  to  be 
received  as  a  boarder,  and  not  as  a  guest. 

3.  Under  section  1859  of  the  Civil  Code,  an  innkeeper  is  liable  for 
the  loss  of  personal  property  placed  by  his  guests  under  his  care,  "  un- 
less occasioned  by  an  irresistible  superhuman  cause,  by  a  public  enemy, 
by  the  negligence  of  the  owner,  or  by  the  act  of  some  one  whom  he 
brought  into  the  inn." 

In  this  case,  the  loss  was  occasioned  by  the  burning  of  the  hotel,  and 
the  origin  of  the  fire  is  not  shown  further  than  that  it  broke  out  in  one 
of  the  rooms  in  which  there  was  nothing  except  the  batteries  which 
supplied  the  bells  with  electricity.  Under  this  state  of  facts,  the  de- 
fendant is  liable.  (Hulett  r.  Swift,  33  N.  Y.  571,  88  Am.  Dec  405 
[212].)  A  fire  thus  occurring  cannot  be  considered  an  "irresistible 
superhuman  cause,"  within  the  meaning  of  section  1859  of  the  Civil 


226  INNKEEPERS. 

Code.  The  words  "irresistible  superhuman  cause"  are  equivalent 
in  meaning  to  the  phrase  "the  act  of  God,"  and  refer  to  those  natural 
causes  the  effects  of  which  cannot  be  prevented  by  the  exercise  of  pru- 
dence, diligence,  and  care,  and  the  use  of  those  appliances  which  the 
situation  of  the  party  renders  it  reasonable  that  he  should  employ. 
(1  Am.  &  Eng.  Ency.  of  Law,  174.)  A  loss  arising  from  ah  accidental 
fire  is  not  caused  by  the  act  of  God,  unless  the  fire  was  started  by  light- 
ning or  some  superhuman  agency.  (Miller  v.  Steam  Nav.  Co.,  10  N.  Y. 
431 ;  Chicago,  etc.  R.  R.  Co.  v.  Sawyer,  69  111.  285,  18  Am.  Rep.  613.) 

4.  The  court  finds  that  the  property  lost  was  such  as  was  needed 
for  the  present  personal  use  of  the  plaintiff.  We  cannot  say  that  the 
evidence  does  not  support  this  finding.  It  certainly  cannot  be  said  that 
jewellery  worn  by  a  woman  daily  must,  when  not  actually  Upon  her  per- 
son, be  deposited  with  the  innkeeper,  in  order  to  make  him  responsible 
for  its  loss  in  the  inn.  If  worn  daily,  it  does  not  cease  to  be  needed 
for  present  personal  use  when  its  possessor  lays  it  aside  upon  retiring 
for  the  night.  Nor  is  it  necessary,  in  order  to  render  the  innkeeper 
liable,  that  the  property  should  have  been  delivered  into  his  exclusive 
personal  possession. 

"  The  guest  may  retain  personal  custody  of  his  goods  within  the  inn, 
—  as  of  his  trunk  and  its  contents,  his  wearing  apparel,  and  other  articles 
in  his  room,  and  any  jewellery  or  valuables  carried  or  worn  about  his 
person,  — without  discharging  the  innkeeper  from  responsibility." 
(Jalie  v.  Cardinal,  35  Wis.  126  [228].) 

We  have  examined  the  other  points  made  by  appellant,  but  do  not 
think  they  call  for  special  discussion. 

The  rule  which  makes  an  innkeeper  liable  for  the  value  of  the  prop- 
erty of  his  guest,  in  case  of  its  loss  by  fire,  may  at  first  thought  be 
deemed  a  harsh  one ;  but  the  loss  must'  fall  somewhere,  and  section 
1859  of  the  Civil  Code  provides  upon  whom  it  should  properly  fall, 
and  the  innkeeper's  liability  in  this  respect  is  one  of  the  burdens  per- 
taining to  the  business  in  which  he  is  engaged,  and  in  view  of  which  it 
must  be  supposed  that  he  regulates  his  charges.1 

Judgment  and  order  affirmed 


EPPS  v.  HINDS. 

27  Miss.  657  ;   61  Am.  D.  528.     1854. 

Mr.  Justice  Fisher  delivered  the  opinion  of  the  court. 
This  was  a  suit  brought  by  the  plaintiff  below  against  the  defendant 
as  an  innkeeper  in  the  town  of  Holly  Springs,  to  recover  the  amount  of 

1  But  by  amendment  to  sec.  1859  of  the  Civil  Code,  in  1895,  the  liability  of  inn- 
keepers was  reduced  to  that  of  depositary  for  hire. 


LIABILITY    FOR    GUEST'S    PROPERTY. 

money  alleged  to  have  been  stolen  from  the  son  of  the  plaintiff,  while 
a  guest  of  the  defendant  in  September,  1850. 

The  son's  trunk  was,  at  his  request,  taken  at  night,  on  retiring  to  bed, 
to  his  room.  After  arriving  at  the  room  he  proves  that  he  put  the 
money  which  had  been  furnished  to  pay  his  travelling  and  collegiate 
expenses  by  his  father  in  the  trunk ;  that  after  retiring  to  bed,  a  stranger 
was  brought  into  the  room,  and  placed  in  another  bed;  that  this 
stranger  left  very  early  next  morning;  that  the  son,  after  getting  up 
next  morning,  discovered  that  his  trunk  had  been,  during  the  night, 
broken  open,  and  his  money,  amounting  to  the  sum  of  $185,  stolen. 
These  are  the  important  facts  in  the  case,  and  are,  in  our  opinion, 
sufficient  to  sustain  the  verdict  found  by  the  jury  for  the  plaintiff. 

It  is,  however,  said  that  the  money  belonged  to  the  son  and  not  to 
the  father,  and  that  the  suit  should  therefore  have  been  brought  in  the 
name  of  the  former.  The  son  was  merely  invested  with  a  discretion 
as  to  the  expenditure  of  the  money.  It  was  the  means  provided  by  the 
father  for  the  son's  support  while  travelling  and  attending  college,  and 
the  loss  necessarily  fell  upon  the  party  who  was  bound  to  furnish  other 
means  for  the  same  purpose. 

.  The  next  objection  is,  that  the  fact  of  the  son's  ordering  his  trunk  to 
be  taken  to  his  bedroom,  exonerates  the  innkeeper  from  liability  for 
a  theft  committed  in  the  room.  The  rule  is  directly  the  reverse,  and 
so  stated  and  recognized  by  the  authorities  referred  to  by  the  counsel 
for  the  plaintiff  in  error.  The  son  by  such  act  only  conformed  to  a 
general  custom,  and  the  innkeeper  could  only  relieve  himself  by  showing 
that  he  was  to  be  responsible  for  the  trunk  and  what  might  be  put 
in  it,  when  left  at  a  particular  place.  Prima  facie  his  responsibility  for 
the  property  of  his  guests  extends  to  every  part  of  his  house  into  which 
it  is  usual  for  such  property  to  be  taken.  This  is  the  general  rule,  which 
can  only  be  limited  by  the  innkeeper  showing  that  there  was  a  different 
understanding  between  him  and  his  guest,  in  regard  to  the  property 
of  the  latter.  Judgment  affirmed. 


WEISENGER  v.  TAYLOR. 

1  Bush  (Ky.)  275;   89  Am.  D.  626.     1867. 

Judge  Robertson  delivered  the  opinion  of  the  court :  — 

The  appellant,  Henry  Weisenger,  sued  the  appellees,  J.  M.  &  G.  H. 
Taylor,  for  $90,  stolen  from  a  room  occupied  by  him  while  a  guest  in 
their  public  inn;  charging  that  the  loss  resulted  from  their  culpable 
negligence. 

The  circuit  court  sustained  a  demurrer  to  the  petition,  and,  on  fail- 
ure to  amend,  dismissed  it. 

The  common,  like  the  civil  law,  but  even  more  stringent,  exacl 


228  INNKEEPERS. 

innkeepers,  as  bailees  of  the  baggage  and  goods  of  their  guests,  extraor- 
dinary care,  and  imposes  on  them  a  responsibility  nearly  commensur- 
able with  that  of  common  carriers,  approximating  insurance  of  such 
articles  when  confided  expressly  or  impliedly ,  to  their  custody  and 
care.  But  whenever  the  guest  assumes  the  custody  and  control  of  his 
goods  in  such  a  way  as  to  indicate  that  he  does  not  trust  the  innkeeper, 
and  concedes  to  him  no  control,  they  are  not  in  the  implied  custody  of 
the  innkeeper,  and  he  is  therefore  not  responsible,  unless  they  shall  be 
stolen  by  some  of  his  own  household,  whose  honesty  and  fidelity  he  is 
presumed  to  guarantee. 

The  innkeeper's  responsibility  is  only  coextensive  with  his  custody 
and  control,  and  his  pledge  of  the  integrity  of  his  servants.  And  the 
question  of  custody  and  control  depends  on  facts  indicative  of  intention. 
If  the  guest,  having  an  article  not  attached  to  his  person,  nor  carried 
about  with  him  for  his  personal  convenience  —  such,  for  example,  as  a 
bag  of  gold,  a  case  of  jewellery,  or  a  package  of  paper  currency  —  the 
fact  that  he  does  not  either  notify  the  host  of  it,  or  offer  to  place  it  in 
his  actual  custody,  would  imply  that  he  trusted  to  his  own  care,  and 
intended  to  risk  all  consequences.  And,  if  the  article  thus  held  by 
himself  alone  should  be  stolen  from  him  while  abiding  in  the  inn,  the 
loss,  like  the  preferred  custody,  might  be  his  own  alone,  unless  it  re- 
sulted from  the  dishonesty  of  some  of  the  household.  The  innkeeper, 
deprived  of  both  custody  and  control,  could  not  be  held  responsible  on 
any  just  or  consistent  principle. 

But  such  articles  as  apparel  worn  at  the  time,  and  watch  and  pocket 
money,  are  not  expected  to  be  delivered  to  the  innkeeper  for  safe-keep- 
ing, and  the  retention  of  them  in  the  guest's  room  neither  keeps  them 
from  the  implied  custody  of  the  innkeeper,  nor  implies  a  waiver  of  his 
responsibility.  In  respect  to  such  articles,  therefore,  thus  kept,  the 
innkeeper  is  prima  facie  the  responsible  curator.  And  it  seems  to  us 
that  the  $90  kept  in  the  appellant's  pocket  for  daily  use  for  incidental 
expenses,  should  be  considered  as  embraced  in  this  last  category.  This 
being  so  adjudged,  the  petition  contains  every  allegation  necessary 
to  show  a  cause  of  action  to  be  tried  on  a  proper  issue  of  fact. 

Wherefore,  the  judgment  is  reversed,  and  the  cause  remanded  for 
further  pleading  and  proceedings. 


JALIE  v.   CARDINAL. 

35  Wis.  118.     1874. 

Action  to  recover  for  money  alleged  to  have  been  lost  to  plaintiff, 
through  defendants'  negligence,  while  the  former  was  stopping  as  a 
guest  at  the  inn  alleged  to  have  been  kept  by  defendants  as  partners. 
The  defendants,  in  their  answer,  and  also  by  affidavit,  denied  the  alio- 


LIABILITY    FOR    GUEST  8    PROPERTY.  229 

gation  of  partnership,  but  admitted  that  at  the  time  plaintiff  is  alh 
to  have  lost  his  money,  Cyril  Cardinal,  one  of  the  defendants,  kept  an 
inn.  They  denied  also  that  the  plaintiff  was  ever  their  guest ;  but 
alleged  that  at  the  time  named  in  the  complaint,  he  was  a  boarder  by 
the  week,  under  a  contract  with  Cyril  Cardinal,  and  that  the  money 
was  lost  through  plaintiff's  neglect.  .  .  . 

Dixon,  C.  J.  [Portion  of  opinion  relating  to  partnership  omitted.] 
The  action  was  one  which  would  have  formerly  been  denominated 
case,  on  the  common  liability  of  an  innkeeper  by  the  rules  of  the  common 
law,  or,  as  known  and  spoken  of  in  England,  by  the  custom  of  the 
realm,  for  the  loss  of  money  which  the  plaintiff  brought  with  him  to 
the  inn  of  the  defendants.  As  such  action,  it  presented  no  new  or  un- 
settled question  —  no  point  not  easily  resolved  by  reference  to  the 
authorities.  The  nature  and  extent  of  such  liability  are  so  well  known 
that  it  is  unnecessary  to  refer  to  them  here,  except  in  general  terms. 
The  innkeeper  must  answer  in  damages  for  the  loss  or  injury  of  all  goods, 
money  and  baggage  of  his  guest,  brought  within  his  inn,  and  delivered 
into  his  charge  and  custody,  according  to  the  usage  of  travellers  and 
innkeepers.  It  is  not  necessary,  however,  that  the  goods  be  expressly 
put  into  the  charge  of  the  innkeeper,  or  that  his  custody  be  exclusive, 
in  order  that  he  may  be  held  responsible.  The  guest  may  retain  per- 
sonal custody  of  his  goods  within  the  inn,  as  of  his  trunk  and  its  con- 
tents, his  wearing  apparel  and  other  articles,  in  his  room,  his  money 
and  his  watch  in  his  pockets,  and  any  jewellery  or  valuables  carried  <»r 
worn  about  his  person,  without  discharging  the  innkeeper  from  respon- 
sibility. Goods,  money  and  baggage  so  in  the  custody  of  the  guest 
are  likewise  considered  in  the  custody  of  the  innkeeper,  and  subject 
to  that  uncommon  care  which  he  is  bound  to  exercise  respecting  the 
effects  of  his  guest. 

Nor  is  the  guest  required  to  prove  that  his  goods  have  been  lost  by 
the  negligence  of  the  innkeeper.  Proof  of  the  loss  by  the  guest  while 
at  the  inn  is  presumptive  evidence  of  negligence  on  the  part  of  the 
innkeeper  or  of  his  domestics.  It  is  the  duty  of  the  innkeeper  to  pro- 
vide honest  servants  and  keep  honest  inmates,  and  to  exercise  exact 
care  and  vigilance  over  all  persons  who  may  come  into  his  house, 
whether  as  guests,  or  otherwise.  By  the  common  law  he  is  responsible 
not  only  for  the  acts  of  his  servants  and  domestics,  but  also  for  the  acts 
of  other  guests.  The  reason  for  this  stringent  rule  has  been  well  stated 
by  Sir  William  Jones.  He  says  :  "  Rigorous  as  this  rule  max  seen.,  and 
hard  as  it  may  actually  be  in  one  or  two  particular  instances,  it  is 
founded  on  the  great  principle  of  public  utility,  to  which  all  private 
considerations  ought  to  yield.  For  travellers,  who  must  be  numerous 
in  a  rich  and  commercial  country,  are  obliged  to  rely  almost  implicitly 
on  the  good  faith  of  innkeepers,  whose  education  and  morals  are  none 
of  the  best,  and  who  might  have  frequent  opportunities  of  associating 
with  ruffians  and  pilferers,  while  the  injured  guest  would  seldom  or 


230  INNKEEPERS. 

never  obtain  legal  proof  of  such  combinations,  or  even  of  their  negli- 
gence, if  no  actual  fraud  had  been  committed  by  them.''  Jones  on 
Bailments,  95,  96. 

The  circumstances  which  excuse  the  innkeeper  and  relieve  him  from 
liability,  are  few  in  number,  and  likewise  well  understood.  He  may 
show  that  the  loss  was  attributable  to  the  personal  negligence  of  the 
guest  himself,  or  occasioned  by  inevitable  casualty,  or  by  superior 
force.  He  is  not  liable  if  it  was  caused  by  the  act  of  God  or  the  public 
enemy,  or  by  the  conduct  of  the  guest,  or  by  the  acts  or  misconduct  of 
his  servants,  or  of  the  companions  whom  he  brought  with  him.  Be- 
yond these  the  common  law  admits  no  excuse  and  affords  no  immunity 
to  the  innkeeper  for  the  loss  of  goods  happening  to  a  guest  within  his 
inn,  so  long  as  the  guest  is  a  sojourner  merely,  abiding  in  and  using  and 
occupying  the  inn  as  a  place  of  rest  and  for  lodging  and  entertainment. 
An  innkeeper  is  not  bound  by  law  to  find  show  rooms  or  sales  rooms 
for  his  guests  in  which  to  expose  or  sell  their  goods,  but  only  suitable 
lodging  rooms  and  lodging ;  and  if  the  guests  use  their  rooms  for  the 
purposes  of  such  exposition  or  sale,  this  also  constitutes  an  exception 
to  the  general  liability  of  the  innkeeper,  and  he  will  not  be  held  respon- 
sible for  the  loss  of  such  goods. 

With  these  general  principles  in  view,  the  questions  presented  in  this 
case  are  not  difficult  of  determination.  The  exceptions  taken  upon  the 
trial,  were  but  two  in  number,  and  arose  upon  the  refusal  of  the  court 
to  grant  two  requests  to  instruct,  made  by  the  defendants. 

The  fir-t  request  related  to  the  character  of  the  plaintiff  as  a  person 
receiving  lodging  and  refreshment  at  the  inn  —  whether  he  was  a  guest 
or  not.  The  plaintiff  was  not  a  neighbour  or  friend  of  the  defendants 
coming  to  their  inn,  but  a  traveller.  He  was  a  passenger  or  wayfaring 
man,  who  resided  at  a  distant  place,  and  who  sought  the  public  house 
kept  by  the  defendants  for  temporary  lodging  and  entertainment.  Of 
these  facts  the  proofs  leave  no  doubt.  He  came  to  the  house,  and  asked 
one  of  the  defendants  if  they  took  boarders,  and  was  answered,  "Yes." 
He  enquired  the  price  of  board  by  the  week,  and  was  informed,  and 
was  thereupon  received  into  the  house.  His  intention  was  to  remain 
only  for  three  or  four  days,  but  of  that  no  communication  was  made 
to  the  defendants.  Upon  these  facts  the  defendants  requested  the  court 
to  charge  the  jury,  "That  if  the  jury  shall  find,  from  the  evidence, 
that  the  plaintiff  was  stopping  at  the  hotel  of  the  defendants,  at.  the 
time  of  the  loss  of  the  money  and  property  in  question,  under  an  agree- 
ment to  board  by  the  week,  he  was  not  a  guest  but  a  boarder,  and  the 
common  law  liability  of  an  innkeeper  for  the  property  of  his  guest  does 
not  apply." 

The  point  upon  which  the  request  turned  was,  that  if  the  plaintiff 
entered  the  hotel  under  an  agreement  to  board  by  the  week,  he  was  but 
a  boarder  and  not  a  guest,  and  therefore  the  liability  of  an  innkeeper 
did  not  attach.     The  court  was  asked  to  hold  as  matter  of  law,  that 


l:.'.—l:tt  roi.    ;    r.-:  -    •  •    ■  exit. 
-.j-'-  .  •:  -  j  J   '•■:•-.":   •  ;•■  :.be  weeJk   :~_;  v  •  ?■:  r.r   plait.:;-      :'::•.   .•:.*•„--* 

-•:...  -.v  ::.-•:  ti-it  J  -.  >"-■"-  -" '  ■--  *     -■"     --"  i  as  ^  v  -."'..'••  .. "   la  tr*r.  elJe: 

keeps  -  r_  •:•-:..  ai.  i  t:  •:  re.it  ■ . -    "    -"       "    ■■ '     -    ■•-"    ">    t.:   a  .   :-  nxr! .•• 
i-  :      i'  .  :  •:•-      -    Ins't.ainJy    est.a'    .-:  •.•:.    '.•tmeeij   tLt-m.     Neither  tht 
!•:-•  r:.i    :  "  "..-:  :  Lit  a  maauco  re  nnauQ&s  aft  ami   "  :    :    *  ..  ■      .._•••■   •  •  :  •.•-  ;:  .^ 
make  as  itio  tdbe  pruoe  <off  'boar d 
character  as  4-  :*•_■•'  •.-:  -." .•:  i  _■"..  est   ;t  "-"  -••:  '  •--  ret.i  ns  hi?  .t  ;:..,•  a.~  a 

122      Hal  r.  Pfe  K»    !  PSaafcentar 

CaL  59  " 

to  be  foummd  M&enace,,  and  mo*  ooae  of  la1* 

>:  :•:"..••  *"."_  '.•:•:     ;•  "i-"  .'   ~?~~  ->'i.v  tie:  ".:.-.■  i-..:.:."  "•'...-  ^  '•  '..  -  •'  ..'■•:,  :. 
..   j  -  •-". 

Hi..:  i.  ::•  :•••  rer_ -.••-:   '  >ee:    -*-:■..*•■  "■•  :  "J  '.:.-.   art  .em     n   .•:  tbt 

-  •  - 

-      i,od 

gnestt  existed  ibelrweeim  tthen: ,  m  :  >  "en 

_•-,.-.-.  _•:      }-"....  v  •:    ■  _rt  :■•:"'"->•:■:  i.  reoues:  .'  v.-.:  kind    il  would  doul  :- 

7"-  •;     :••;•  '-•  •_•:--:  wL  : '•.  was   kna  ad    was  .:.  (tfcuese  wcxr  .- 
:    ■  _..-;■■  ■_.'  f "  :    :'"  ::.  \ht  e^-demoe,  ::...*  "'.r  ::;.".•;•   :.".  .  :  "  :••"'.■   id 

•■-.  ■..-."  '  •■ 

plawrtiffl  tA  Idbfi  : '.::.•:  -J  Affiliass,  it3w  Mt^Ddant;  art  :    1  liable-" 

Itr  wffll  be  ©8.  .jenaienal  prJiE)d|ale- 

made,  t&a*   :  ,(m 


;■..-:•:;•■  :*   •.  -  ;■■■*""    ■-  Ti "---  ~      ".-"..v    "  :.•-■    --'••  -•>;'■'■  urJcs;    uuaaa 

"..i,  r.  :>•;•.  \.    ..*  .  "  '  - :.-'..".  -- 

aftter  naoitioe  ffinwnm  ttjbe  npnnVf--. 

4.-.  •  :"•_..-.  ':.-.  -    ..    .  v   :•-'■•-:•:--'   ej   1    ts  Joss unl ess  depoe-::<e-d  litT 

1.  and 

:  alem  «wr  k»s " 

:.."  '..:•":  *..:.•:   J"  '.-'-'.     '  "•-  ^•"..-^    in  :.-•-   grutsl       Fm  re: .em     :.  ■ 

■oonej  by  the  p8ainn-  ''  ..:•  ::  L--  >.  -~  i«eTS  :.   iSd  mol  e-xTusK  iht  ■.■'■    - 

.    ,  -:-  --  ' 

It   is  Ek-e  ■;«teBB(d- 

r.e.^'.  :v".:'v    :  ~.  iJ'.e  :•..""     "  "'.^  : --  :-"  ~   ttal   be  ca-r:.:  dot  t.o  r-i  ■  •- 
cowml,  and  ttbaf  tie 
supposed  that  «oc  -  "-gliseii  "■  ae  par 

.-.-:.-.  i  '•,-;•  ;•.-.*_      '  _t  --  :.    »■  ><:'.:  -■.  tj  sit   a  waDt 


232  INNKEEPERS. 

cumstances  tending  to  prove  negligence  on  the  part  of  the  plaintiff 
were  shown ;  but  the  question  was  fairly  submitted  to  the  jury,  and 
they  have  found  in  his  favour.  The  effort  was  to  show  that  he  was 
intoxicated  when  he  retired  to  his  room,  about  eleven  o'clock  in  the  day, 
and  that  he  was  negligent  in  not  finding  the  key  in  his  door,  and  in  not 
locking  the  door.  In  Calye's  case,  8  Coke,  32  [163],  1  Smith's  Leading 
Cases  [*194],  it  was  resolved,  as  a  proposition  of  law,  to  be  "  no  excuse 
for  the  innkeeper  that  he  delivered  the  guest  the  key  of  the  chamber  in 
which  he  lodged,  and  that  he  left  the  chamber  door  open."  This  would 
hardly  be  accepted  or  held  as  matter  of  law  now-a-days,  and  indeed 
is  not,  but  is  a  question  of  fact  for  the  jury.  It  is  for  the  jury  to  say 
whether  such  conduct  on  the  part  of  the  guest  constitutes  negligence 
or  not,  under  the  circumstances.  Negligence  in  cases  of  this  nature,  as 
in  all  others,  is  one  of  fact  for  the  jury,  unless  the  evidence  is  too  plain 
and  positive  to  admit  of  doubt  or  controversy,  when  the  court  will  be 
justified  in  taking  the  case  into  its  own  hands  and  directing  a  verdict. 
We  cannot  say,  in  view  of  the  very  stringent  liability  of  innkeepers, 
and  of  the  authorities,  that  the  court  would  have  been  justified  in  doing 
so  in  this  case,  and  hence  cannot  disturb  the  verdict  as  being  against 
the  evidence.  If  drunk,  the  plaintiff  might  still  have  claimed  the  pro- 
tection of  his  host,  as  did  Falstaff,  when  he  fell  asleep  "behind  the 
arras,"  and  might  say  with  him :  "Shall  I  not  take  mine  ease  in  mine 
inn,  but  I  shall  have  my  pocket  picked  ?  "  which  seems  to  be  a  further 
proof,  not  noticed  by  the  advocates  of  that  theory,  that  Shakespeare 
was  a  lawyer,  and  therefore  that  Bacon  wrote  Shakespeare. 

A  third  request  refused  related  to  the  liability  of  the  defendants  as 
partners,  which,  if  admitted  to  have  been  correct  in  law,  has  now  be- 
come immaterial,  since  the  jury  have  found  that  the  partnership  existed 
at  the  time  the  money  was  lost,  and  was  not  entered  into  afterwards, 
as  assumed  in  the  request. 

By  the  Court,  —  Judgment  affirmed. 


BERKSHIRE  WOOLLEN  CO.   v.   PROCTOR. 

7  Cush.  (Mass.)  417.     1851. 

Fletcher,  J.  This  is  an  action  on  the  case  against  the  defendants, 
as  innkeepers,  for  the  alleged  loss  of  five  hundred  dollars  of  the  plain- 
tiffs' money  in  the  inn  of  the  defendants,  known  as  the  Marlboro' 
Hotel,  in  the  city  of  Boston.  It  was  admitted  that  the  defendants  were 
innkeepers,  and  proprietors  of  said  Marlboro'  Hotel. 

It  appears  from  the  testimony,  that  about  the  15th  of  October,  1849, 
Asa  C.  Russell,  an  agent  and  servant  of  the  plaintiff,  went  to  Boston 
with  some  twenty-five  witnesses,  to  take  charge  of  a  lawsuit  to  which 


LIABILITY    FOR    GUEST  S    PROPERTY. 

the  plaintiffs  were  a  party  ;  that  he  took  with  him  one  thousand  dollars 
of  the  plaintiffs'  money,  for  the  purpose  of  defraying  the  expenses  of 
their  said  suit;  that  he,  with  some  of  the  plaintiffs'  witnesses,  put  up 
at  the  Marlboro'  Hotel ;  that  he  kept  a  part  of  the  money  in  his  trunk, 
in  his  room,  and  took  it  out  as  he  wanted  it  for  daily  use,  to  pay  wit- 
nesses;  that  on  the  2d  of  November,  1849,  he  counted  his  money,  and 
found  he  then  had  just  five  hundred  dollars,  which  he  rolled  up  in  a 
newspaper,  and  put  the  packet  in  the  bottom  of  his  trunk,  under  his 
clothes,  and  locked  the  trunk ;  that  on  the  evening  of  the  3d  of  Novem- 
ber, he  found  that  the  lock  had  been  picked  and  the  monej  had  I. ecu 
taken  from  the  trunk.  He  immediately  gave  notice  to  the  defendant 
and  he  with  them  made  diligent  search  for  the  money  ;  but  it  was  never 
found.  Some  of  the  plaintiffs'  witnesses  boarded  with  the  defendants 
at  their  said  inn,  and  Russell  told  the  defendants  that  he  would  be  re- 
sponsible for  the  board  of  said  witnesses.  He  agreed  with  the  defendai 
for  the  price  of  his  board  by  the  week,  and  if  he  did  not  stay  a  week 
the  price  was  to  be  greater  than  at  the  rate  by  the  week.  He  testified 
that  he  thought  he  told  one  of  the  defendants  that  he  was  agent  of  the 
plaintiffs,  but  was  not  certain;  that  he  did  not  inform  the  defendants 
that  he  had  money  with  him,  till  after  the  loss;  that  the  defendants 
called  his  attention  to  a  safe  in  the  office  after  the  loss,  but  that  he  did 
not  know  whether  he  saw  it  before  the  loss  or  not.  He  further  testified 
that  he  thought  it  was  a  custom  in  Boston  for  innkeepers  to  have 
safes,  but  not  a  general  custom  for  guests  to  deposit  in  them.  He  did 
not  know  that  anybody  deposited  packets  in  the  Marlboro'  Hotel. 
He  also  testified  that  it  was  his  usual  practice  to  lock  the  door  of  his 
room  when  he  went  out,  and  to  leave  the  key  in  the  door,  but  could  not 
speak  positively  as  to  the  2d  and  3d  of  November.  This  witness,  and 
others  produced  by  the  plaintiffs,  testified  to  the  practice  of  guests  at 
the  defendants'  inn,  of  leaving  keys  in  the  doors  of  their  lodging  rooms. 
To  this  the  defendants  objected,  but  it  was  admitted,  with  the  instruc- 
tions, that  it  was  not  to  be  considered  by  the  jury,  unless  shown  to  be 
the  usage  of  the  house,  and  that  known  to  the  defendants.  Russell 
further  testified,  that  the  only  regulations  of  which  he  saw  notice 
given,  were  contained  in  a  printed  notice  posted  in  the  house,  which 
will  be  hereafter  examined.  One  of  the  plaintiffs'  witnesses  testified 
that  one  of  the  defendants  stated,  after  the  loss,  that  when  he  suspected 
that  guests  had  large  sums  of  money,  he  was  in  the  habit  of  speaking 
to  them  about  it,  and  regretted  he  had  not  done  so  to  Russell. 

The  defendants,  in  their  defence,  offered  to  prove  a  general  and  uni- 
form custom  with  innkeepers  in  Boston,  to  provide  safes  for  the  purpose 
of  depositing  therein  large  sums  of  money  and  other  valuable  thin- 
which  their  guests  may  have,  and  the  custom  of  guests  to  deposit 
accordingly.  The  court  ruled  that  this  evidence  was  inadmissible, 
and  this  ruling  forms  the  ground  of  one  of  the  defendants'  exception 
But  the  court  ruled  that  it  was  competent  for  the  defendants  to  pi 


234  INNKEEPERS. 

fully  what  was  the  custom  of  the  defendants'  hotel,  and  of  their  guests 
in  this  particular.  Thereupon  both  parties  went  at  large  into  evidence 
as  to  this  alleged  custom  at  the  defendants'  hotel,  and  of  their  guests. 

[The  several  contentions  for  defendants,  as  set  out  in  detail,  suffi- 
ciently appear  in  the  following  paragraphs  of  the  opinion.] 

A  verdict  having  been  found  for  the  plaintiffs,  the  defendants  alleged 
exceptions  to  the  foregoing  rulings  and  instructions  of  the  court  of 
common  pleas. 

It  is  maintained,  in  behalf  of  the  defendants,  that  the  evidence  offered 
by  them,  to  show  a  general  and  uniform  custom  of  the  hotels  in  Boston, 
and  their  guests,  to  have  money  deposited  in  safes  kept  for  that  pur- 
pose, which  was  excluded  at  the  trial,  should  have  been  admitted. 
[The  offered  evidence  is  considered  in  detail.] 

But  it  is  sufficient,  that  the  evidence  offered  in  this  case  was  incompe- 
tent to  establish,  or  warrant  the  jury  in  finding,  the  existence  of  any 
such  general  and  uniform  usage  as  was  set  up  by  the  defendants.  The 
defendants  were  permitted  fully  to  prove  what  was  the  custom  of  their 
own  house  and  guests.  This  was  the  only  custom  with  which  they 
were  connected,  and  of  which  they  could  avail  themselves.  For  what 
purpose  the  defendants  proposed  to  give  evidence  of  the  custom  of  other 
houses  and  their  guests,  was  not  stated,  and  does  not  appear.  Surely 
the  defendants  could  not  take  advantage  of  the  custom  of  other  houses, 
if  it  differed  from  their  own  ;  and  if  it  was  the  same  as  their  own,  so  far 
as  it  appears,  it  would  have  been  wholly  immaterial.  The  defendants 
having  been  permitted  fully  to  prove  the  custom  of  their  own  house 
and  guests,  it  does  not  appear  that  their  rights  were,  or  could  be,  in 
any  way  affected  by  the  exclusion  of  the  evidence  as  to  the  custom  of 
other  houses  and  their  guests. 

It  is  further  maintained  for  the  defendants,  that  Russell  was  not  a 
guest,  in  the  sense  of  the  law,  but  a  boarder.  But  Russell  surely  came 
to  the  defendants'  inn  as  a  wayfaring  man  and  a  traveller,  and  the  de- 
fendants received  him  as  such  wayfaring  man  and  traveller,  as  a  guest 
at  their  inn.  Russell  being  thus  received  by  the  defendants,  as  their 
guest  at  their  inn,  the  relation  of  innkeeper  and  guest,  with  all  the 
rights  and  liabilities  of  that  relation,  was  instantly  established  between 
them.  The  length  of  time  that  a  man  is  at  an  inn,  makes  no  difference, 
whether  he  stays  a  week  or  a  month,  or  longer,  so  that  always,  though 
not  strictly  transiens,  he  retains  his  character  as  a  traveller.  Story  on 
Bailm.,  §  447.  The  simple  fact  that  Russell  made  an  agreement  as  to 
the  price  to  be  paid  by  him  by  the  week,  would  not  upon  any  principle 
of  law  or  reason,  take  away  his  character  as  a  traveller  and  a  guest. 
A  guest  for  a  single  night  might  make  a  special  contract,  as  to  the  price 
to  be  paid  for  his  lodging,  and  whether  it  were  more  or  less  than  the 
usual  price,  it  would  not  affect  his  character  as  a  guest.  The  character 
of  guest  does  not  depend  upon  the  payment  of  any  particular  price,  but 
upon  other  facts.     If  an  inhabitant  of  a  place  makes  a  special  contract 


LIABILITY    FOR    GUEST'S    PROPERTY.  235 

with  an  innkeeper  there,  for  board  at  his  inn,  he  is  a  hoarder,  and  not  a 
traveller  or  a  guest,  in  the  sense  of  the  law.  But  Russell  was  a  traveller, 
and  put  up  at  the  defendants'  inn  as  a  guest,  was  received  by  the  defend- 
ants as  a  guest,  and  was,  in  the  sense  of  the  law,  and  in  every  sense,  a 
guest. 

Another  ground  of  defence  taken  in  behalf  of  the  defendant-,  is  that 
this  action  cannot  be  maintained,  because  the  plaintiffs,  being  a  corpo- 
ration, were  not,  and  could  not  be,  in  the  nature  of  things,  the  guest  of 
the  defendants;  that  an  innkeeper  is  liable  only  for  the  goods  of  his 
guest ;  and  that,  therefore,  the  defendants  are  not  liable  for  the  money 
of  the  plaintiffs,  as  they  were  not,  actually  nor  constructively,  the  gu< 
of  the  defendants.  But  this  reasoning  cannot  prevail.  Russell  was 
the  defendants'  guest,  and  he  was  the  agent  and  servant  of  the  plaintiffs  ; 
and  the  money  which  was  lost,  and  for  which  this  suit  was  brought, 
was  the  plaintiffs'  money,  in  the  possession  of  Russell,  delivered  by  the 
plaintiffs  to  him,  as  their  servant  and  agent,  to  be  expended  in  their 
business.  This  action,  therefore,  can  well  be  maintained  upon  the 
well  settled  principle  of  law,  that,  if  a  servant  is  robbed  of  his  master's 
money  or  goods,  the  master  may  maintain  the  action  against  the  inn- 
keeper in  whose  house  the  loss  was  sustained.  This  point  was  directly 
settled  in  Bedle  v.  Morris,  Yelv.  162,  and  notes  and  cases  cited  in  the 
American  edition.  In  that  case  it  was  said  by  the  court,  "  And  more- 
over it  is  not  material  whether  he  was  his  servant  or  not ;  for,  if  it  was 
his  friend  by  whom  the  party  sent  the  money,  and  he  is  robbed  in  the 
inn,  the  true  owner  shall  have  the  action."  S.  C.  Cro.  Jac.  224.  The 
doctrine  is  thus  stated  in  Bacon :  "  If  a  man's  servant,  travelling  on 
his  master's  business,  comes  to  an  inn  with  his  master's  horse,  which  is 
there  stolen,  the  master  may  have  an  action  against  the  host,  because 
the  absolute  property  is  in  him.  So,  if  A.  sends  money  by  his  friend, 
and  he  is  robbed  in  his  inn,  A.  shall  have  the  action."  Bac.  Ab.  Inns 
and  Innkeepers,  C.  5.  Such  was  also  adjudged  to  be  the  law  in  Towson 
v.  Havre  de  Grace  Bank,  6  Har.  &  Johns.  47,  53.  In  this  case,  after 
stating  the  position,  that  if  A.  sends  his  money  by  his  friend,  who  is  robbed 
in  the  inn  at  which  he  is  a  guest,  A.  shall  have  the  action,  the  court 
say :  "  And  there  is  no  reason  why  it  should  not  be  so,  the  innkeeper 
being  chargeable,  not  on  the  ground  that  he  entertains  the  owner  of 
the  money,  or  other  goods,  but  because  he  receives,  no  matter  by  whom 
paid,  a  compensation  for  the  risk."  See  also  Bennett  v.  Mellor,  5  T.  R. 
273. 

The  case  of  Mason  v.  Thompson,  9  Pick.  280,  goes  still  further.  In 
that  case,  G.  hired  the  horse,  chaise  and  harness  of  the  plaintiff,  and 
drove  the  same  to  Boston,  where  she  stopped,  as  a  visitor,  with  a 
friend,  and  sent  the  horse,  chaise  and  harness  to  the  stable  of  the 
defendant,  who  was  an  innkeeper,  to  be  kept  during  her  visit.  After 
four  days,  she-sent  for  the  property,  and  found  that  a  part  of  it  had 
been  stolen,  for  which  the  innkeeper  was  held  liable  to  the  plaint  ill, 


236  INNKEEPERS. 

who  was  the  owner.  It  was  urged  for  the  defendant,  that  neither  G. 
nor  the  plaintiff  was  the  defendant's  guest,  as  neither  of  them  had  diet 
or  lodging  at  the  defendants'  inn.  But  the  court  said,  "it  is  clearly 
settled,  that  to  constitute  a  guest,  in  legal  contemplation,  it  is  not 
essential  that  he  should  be  a  lodger,  or  have  any  refreshment,  at  the 
inn.  If  he  leaves  his  horse  there,  the  innkeeper  is  chargeable  on  account 
of  the  benefit  he  is  to  receive  from  the  keeping  of  the  horse."  Upon 
this  point,  the  case  of  Yorke  v.  Grenaugh,  2  Ld.  Raym.  866,  was  relied  on. 
In  Grinnell  v.  Cook,  3  Hill,  485  [79],  the  case  of  Mason  v.  Thompson 
was  commented  on,  and  that  part  of  it  which  held,  "  that,  to  constitute 
a  guest  in  legal  contemplation,  it  is  not  essential  that  he  should  be  a 
lodger,  or  have  any  refreshment  at  the  inn,"  was  controverted,  as  not 
warranted  upon  principle,  or  by  adjudged  cases.  Bronson,  J.,  in  giv- 
ing the  opinion  of  the  court,  says  :  "  But  when,  as  in  Mason  v.  Thomp- 
son, the  owner  has  never  been  at  the  inn,  and  never  intends  to  go  there 
as  a  guest,  it  seems  to  me  little  short  of  a  downright  absurdity  to  say, 
that  in  legal  contemplation,  he  is  a  guest."  But  this  particular  point 
is  not  material  in  the  present  case,  as  in  this  case  Russell  was  the 
defendants'  guest.  Though  it  be  settled  that  the  owner  of  the  goods 
or  money  may  have  an  action,  it  may  also  be,  that  an  action  could  be 
maintained  either  by  the  servant  or  master. 

Another  ground  of  defence  is,  that  the  defendants  are  not  liable  for 
the  loss  in  this  case ;  as  innkeepers  are  liable  for  such  sums  only,  as  are 
necessary  and  designed  for  the  ordinary  travelling  expenses  of  guests, 
and  for  no  more.  Such  was  the  doctrine  held  by  this  court  in  the  case 
of  Jordan  v.  Fall  River  Railroad,  5  Cush.  69,  in  regard  to  the  liability 
of  a  carrier  of  passengers  for  baggage.  Formerly,  it  was  held,  that  a 
carrier  of  passengers  was  not  answerable  for  baggage  at  all,  unless  a 
distinct  price  was  paid  for  it ;  but  it  is  now  held,  from  the  usual  course 
of  business,  that  a  contract  to  carry  the  ordinary  baggage  of  the  pas- 
senger is  included  in  the  principal  contract,  in  relation  to  the  passenger, 
and  the  price  paid  for  fare  is  considered  as  including  a  compensation  for 
carrying  the  baggage ;  so  that  a  carrier  is  answerable  for  the  loss  of  bag- 
gage, although  there  was  no  particular  separate  agreement  concerning 
it.  But  this  implied  undertaking  by  a  carrier  of  passengers  does  not 
extend  beyond  ordinary  baggage,  or  such  things  as  a  traveller  usually 
carries  with  him  for  his  personal  convenience  on  the  journey,  including 
such  an  amount  of  money  as,  under  the  circumstances,  may  be  neces- 
sary, and  is  designed,  for  the  payment  of  travelling  expenses.  A 
common  carrier  of  passengers  is  not  responsible,  unless  by  a  special 
contract,  for  goods  and  chattels,  or  money,  not  properly  belonging  to 
the  baggage  of  the  passenger.  Jordan  v.  Fall  River  Railroad,  5  Cush. 
69.  But  common  carriers  of  goods  are  responsible  for  any  amount 
of  goods  and  money  which  may  be  intrusted  to  them,  when  the  car- 
riage of  money  is  within  the  scope  of  their  employment  and  business. 

The  responsibility  of  innkeepers  for  the  safety  of  the  goods  and  chat- 


LIABILITY    FOR    GUEST'S    PROPERTY. 

tels  and  money  of  their  guests  is  founded  on  the  great  principle  of  public 
utility,  and  is  not  restricted  to  any  particular  or  limited  amount  of  goods 
or  money.  The  law  on  this  subject  is  very  clearly  and  succinctly  stated 
by  Chancellor  Kent,  as  follows:  "The  responsibility  of  the  innkeeper 
extends  to  all  his  servants  and  domestics,  and  to  all  the  movable  goods 
and  chattels  and  moneys  of  his  guest,  which  are  placed  within  the  inn." 
2  Kent,  Com.  593.  The  liability  of  an  innkeeper  for  the  loss  of  the 
goods  of  his  guest  being  founded,  both  by  the  civil  and  common  law, 
upon  the  principle  of  public  utility,  and  the  safety  and  security  of  the 
guest,  there  can  be  no  distinction,  in  this  respect,  between  the  goods 
and  money.  Kent  v.  Shuckard,  2  B.  &  Ad.  803;  Armistead  v.  Whi 
6  Eng.  Law  &  Eq.  R.  349;  Quinton  v.  Courtney,  1  Haywood,  40  [201]. 
The  principle  for  which  the  defendants  contend,  that  innkeepers  are 
liable  for  such  sums  only,  as  are  necessary  and  designed  for  the  ordinary 
travelling  expenses  of  the  guest,  is  unsupported  by  authority,  and  wholly 
inconsistent  with  the  principle  upon  which  the  liability  of  an  innkeeper 
rests.  The  reasoning,  both  of  the  civil  and  common  law,  by  which  the 
doctrine  of  the  liability  of  innkeepers,  without  proof  of  fraud  or  negli- 
gence, is  maintained,  is,  that  travellers  are  obliged  to  rely,  almost 
entirely,  on  the  good  faith  of  innkeepers  ;  that  it  would  be  almost  im- 
possible for  them,  in  any  given  case,  to  make  out  proof  of  fraud  or 
negligence  in  the  landlord;  and  that  therefore  the  public  good  and  the 
safety  of  travellers  require  that  innholders  should  be  held  responsible 
for  the  safe  keeping  of  the  goods  of  the  guests.  This  reasoning  main- 
tains the  liability  of  the  innkeeper  for  the  money  of  the  guest,  quite  as 
strongly  as  his  liability  for  goods  and  chattels,  and  it  would  be  clearly 
inconsistent  with  the  general  principle  upon  which  the  liability  is 
founded,  to  hold  that  the  defendants  were  not  responsible  for  the 
money  lost  in  the  present  case.  2  Kent,  Coin-  592  to  594;  Story  on 
Bailm.,  §§  478,  481 ;  Sneider  v.  Geiss,  1  Yeates,  35. 

[A  part  of  the  opinion  relating  to  alleged  negligence  of  the  guest  is 
omitted.] 

All  the  exceptions  are  overruled,  and  judgment  must  be  rendered  on 
the  verdict  for  the  plaintiffs. 


WILKINS  v.   EARLE. 

44  N.  Y.  172  ;   4  Am.  R.  G55.     1870. 

Appeal  from  a  judgment  of  the  Superior  Court  of  the  city  of  New 
York,  on  the  verdict  of  a  jury,  with  special  findings  of  fact,  and  excep- 
tions taken  at  the  trial,  heard  at  the  General  Term,  in  the  first  in- 
stance. 

The  plaintiff  became  the  guest  of  the  defendants,  at  their  hotel  in  the 


238  INNKEEPERS. 

city  of  New  York,  on  the  evening  of  the  20th  of  April,  18G3.  Soon  after 
his  arrival  he  delivered  to  the  servant  of  the  defendants,  who  apparently 
had  charge  at  the  office,  a  sealed  envelope  containing  $20,000,  which 
the  plaintiff  requested  the  servant  to  deposit  in  a  safe  kept  by  the  defend- 
ants at  the  office  for  the  safe  keeping  of  money,  jewels  and  valuables 
belonging  to  their  guests.  The  package  was  placed  in  the  safe,  which 
was  then  locked  in  the  plaintiff's  presence.  A  notice  was  posted  in 
the  room  assigned  to  the  plaintiff,  that  packages  of  value  should  be 
properly  labeled  and  deposited  in  an  iron  safe  kept  at  the  office  for  that 
purpose.  A  copy  of  the  act,  entitled  "  an  act  to  regulate  the  liability 
of  hotel  keepers,"  passed  in  1855,  was  also  posted  in  the  room. 

The  servant,  on  receiving  the  package,  inquired  what  it  contained, 
and  the  plaintiff  answered  "money."  No  further  information  as  to 
the  contents  was  asked  or  given.  On  the  following  morning,  when 
the  plaintiff  called  for  his  package,  it  could  not  be  found,  and  has  never 
been  returned  to  him. 

The  servant,  who  was  within  the  office  the  previous  evening,  rose 
before  the  defendants,  and  obtained  from  one  of  them  the  key  of  the 
safe,  and  was  seen  to  open  it  and  take  out  some  property  of  the  defend- 
ants and  afterward  lock  it.  The  defendant  who  had  handed  him  the 
key,  came  to  the  office  very  soon  afterward,  but  the  servant  had  then 
absconded;  and,  although  diligent  search  was  made  for  him  by  detec- 
tives, employed  for  the  purpose,  he  has  not  since  been  seen  by  the  parties, 
nor  have  they  obtained  any  information  whither  he  has  gone  or  where 
he  can  be  found. 

[A  part  of  the  statement,  and  the  opinion  of  Leonard,  C,  are  omitted.] 

Hunt,  C.  It  is  established  by  the  verdict,  that  on  the  evening  of 
April  20th,  1863,  the  plaintiff  deposited  with  the  agent  of  the  defendant, 
for  safe  keeping  in  his  vault,  a  package  of  the  value  of  about  $21,000 ; 
that  the  person  to  whom  the  same  was  delivered,  forthwith  deposited 
the  package  in  the  safe  provided  for  that  purpose  by  the  defendants 
pursuant  to  their  notice ;  that  the  person  to  whom  the  package  was 
delivered,  was  authorized  by  the  defendants  to  receive  the  same  on  their 
behalf,  for  the  purpose  of  deposit  in  their  safe.  Upon  delivering  the 
package  to  the  clerk  in  the  office,  the  plaintiff  testifies,  that  he  wrote 
his  name  upon  the  same,  that  the  clerk  inquired  its  contents,  to  which 
the  plaintiff  replied,  that  it  contained  money,  that  without  further 
inquiry,  the  clerk  deposited  the  same  in  the  safe.  The  plaintiff  then 
asked  for  a  check  or  a  receipt,  to  which  the  clerk  replied,  that  they 
never  gave  checks,  but  required  the  applicant  upon  demanding  his 
property,  to  identify  it.  The  jury  found  a  verdict  for  the  value  of  the 
package  thus  delivered,  and  which,  upon  demand  the  next  morning, 
the  defendants  failed  to  return  to  the  plaintiff. 

The  judge,  at  the  trial,  held  that  under  these  circumstances,  the  de- 
fendants were  responsible,  if  at  all,  for  the  entire  value  of  this  package. 
At  the  General  Term,  the  court  held  that  the  defendants  were  respon- 


LIABILITY    FOR    GUEST'S    PROPERTY.  239 

sible  only  to  the  extent  of  a  reasonable  sum  for  the  travelling  expen 
of  the  plaintiff.     This  sum,  the  jury  in  response  to  a  special  inquiry  by 
the  judge  at  the  trial,  fixed  as  the  sum  of  $1000.     Our  principal  duty 
to  determine  which  of  these  rules  is  the  correct  one. 

Whether  the  defendants  were  bound  to  receive  on  deposit  so  large  a 
sum,  is  not  in  question.  They  did  receive  it,  and  deposited  it  in  their 
safe,  in  pursuance  of  their  notice,  and  the  statute  by  which  it  was 
authorized.  Whether  the  label  upon  the  same  was  a  sufficient  com- 
pliance with  their  notice,  is  not  before  us.  The  statute  makes  no  men- 
tion of  a  label,  and  nothing  can  be  more  vague  than  this  term  a>  used 
in  their  notice.  The  most  general  idea  of  a  label  is  not  of  a  sepan 
strip  of  paper  or  parchment,  but  a  written  description  of  the  article 
upon  which  it  is  placed  or  made,  as  to  its  ownership,  or  character,  or 
quality  or  extent.  The  name  of  Mr.  Wilkins  was  a  label.  It  indi- 
cated the  ownership.  The  sum  of  $20,000,  if  written  upon  the  envelope, 
would  have  been  a  label.  It  indicated  the  value  of  the  parcel.  A  simple 
indorsement  of  the  word  money,  or  valuables,  would  have  been  a  label. 
If  the  defendants  deemed  a  label  important,  and  wished  to  raise  a  ques- 
tion of  law  upon  the  sufficiency  of  the  label  on  this  package,  they  should 
have  made  a  specific  point  upon  it  at  the  trial,  and  asked  for  a  ruling 
there.  This  they  did  not  do,  and  the  question  cannot  be  made  in  this 
court. 

The  liability  of  an  innkeeper  for  the  goods  of  his  guest,  has  been 
settled  for  centuries.  The  act  of  1855  does  not  purport  to  create  it 
nor  even  to  declare  it.  It  assumes  the  liability.  It  enacts  that  when- 
ever the  proprietors  of  an  hotel,  shall  provide  a  safe  in  their  office  for 
the  keeping  of  money,  jewels,  or  ornaments,  belonging  to  their  guests, 
and  shall  notify  their  guests  thereof,  and  a  guest  shall  neglect  to  deposit 
his  money,  jewels  or  ornaments  therein,  the  proprietor  shall  not  be  liable 
for  any  loss  of  the  same  by  his  guest.  This  act  assumes  that  before  its 
passage,  the  innkeeper  was  liable  for  the  loss  of  the  money,  jewels,  or 
ornaments  of  his  guest.  It  assumes  that  he  still  remains  liable,  if  a 
deposit  is  made  by  the  guest  of  his  money  or  jewels,  according  to  the 
terms  of  the  act.  It  neither  enlarges  or  restricts  the  liability.  It 
leaves  it  as  the  common-law  fixed  it,  with  the  condition  as  to  money 
and  jewels,  that  if  a  particular  notice  is  given  by  the  innkeeper,  the 
liability  shall  not  attach  unless  such  money  and  jewels  are  deposited 
in  the  office  safe.  In  the  present  case  this  notice  was  given  and  the 
condition  was  complied  with.  The  liability  stands  therefore  as  the 
common-law  fixed  it. 

In  support  of  a  rule,  which  in  its  general  terms  is  conceded  by  all, 
it  is  not  necessary  to  cite  authorities.  I  will  hereafter  refer  to  some 
of  those,  which  in  their  facts  bear  upon  the  point  now  in  consideration. 

Is  there  any  basis  in  principle  or  in  the  authorities  for  the  distinction 
made  by  the  defendant,  to  wit,  that  an  innkeeper  is  Liable  only  for 
such  an  amount  of  money  as  is  necessary  for  the  reasonable  expens< 


240  INNKEEPERS. 

of  the  guest  ?  This  distinction  is  sought  to  be  maintained  upon  the 
analogy  to  the  case  of  a  carrier  of  passengers,  who  is  liable  only  for 
money  or  articles  convenient  to  the  traveller  on  his  journey,  and  not 
for  goods  or  merchandise  as  such.  I  will  cite  a  few  among  the  many 
cases  reported  in  the  English  courts,  as  well  as  in  those  of  this  State, 
to  show  that  this  distinction  cannot  be  maintained.  I  think  it  will 
appear  that  the  innkeeper  is  liable  to  the  guest  for  the  value  of  all  his 
property  lost,  whether  it  be  intended  for  his  personal  convenience,  or 
for  traffic,  or  for  any  other  general  or  permanent  purpose. 

The  law  was  correctly  laid  down  by  Lord  Coke  in  Calge's  [Calye's] 
case  [163],  more  than  250  years  since.  (8  Co.  Rep.  203,  32a.)  That 
case  contains  an  abstract  of  the  law  touching  the  liabilities  of  innkeepers. 
[The  opinion  is  quoted  practically  in  full.] 

In  Bennet  v.  Mellor  (5  T.  R.  273)  the  case  was  this :  The  plaintiff's 
servant  had  taken  a  quantity  of  goods  to  market  to  sell.  Being  unable 
to  dispose  of  them,  he  went  with  them  to  the  defendant's  inn,  and  asked 
the  defendant's  wife  if  he  could  leave  the  goods  there  till  the  next  market 
day,  the  week  following.  She  replied  that  she  could  not  tell,  for  they 
were  very  full  of  parcels.  The  servant  then  sat  down,  had  some  liquor 
and  put  the  goods  on  the  floor  immediately  behind  him.  When  he 
got  up,  after  sitting  a  little  while,  the  goods  were  missing.  A  recovery 
was  had,  which,  upon  a  rule  to  show  cause  before  Ashcurt,  Buller  and 
Grose,  JJ.,  was  sustained.  It  will  be  observed  that  the  subject  here 
was  merchandise,  which  the  servant  had  taken  to  market,  and  which 
he  wished  to  store  until  the  next  market  day.  It  had  none  of  the 
quality  of  baggage  or  of  articles  of  personal  convenience. 

In  Kent  v.  Shuckard  (2  B.  &  Ad.  803)  the  head-note  is,  "  An  inn- 
keeper is  responsible  for  money  belonging  to  his  guest."  The  plaintiff 
and  his  wife  were  guests  at  the  defendant's  inn.  The  wife  left  her 
reticule,  containing  money,  on  her  bed.  Returning  for  it  in  a  few 
minutes,  it  was  gone.  The  report  does  not  state  the  amount  of  the 
money  lost.  On  the  trial  it  was  urged,  on  behalf  of  the  innkeeper,  that 
he  was  responsible  for  goods  and  chattels  only,  and  not  for  money. 
The  jury  found  a  verdict  for  the  plaintiff ;  and  on  a  motion  before  Lord 
Chief  Justice  Tenterden  and  Justices  Parke,  Taunton  and  Patteson, 
the  same  point  was  taken.  Andrews,  sergeant,  urged,  that  while  inn- 
keepers are  liable  for  goods  and  chattels,  "  there  is  no  authority  to  show 
that  they  are  so  for  money.  If  they  be,  there  will  be  no  limit  to  their 
responsibility.  An  innkeeper  cannot  know  or  form  any  judgment  of 
the  amount  of  money  a  guest  may  have."  The  court  sustained  the 
verdict,  holding  the  innkeeper  responsible  for  the  money. 

In  Jones  v.  Tyler  (1  Ad.  &  Ellis)  the  horse  and  gig  of  the  guest  were 
taken  in  charge  by  the  defendant's  hostler,  who  placed  the  gig  in  the 
open  street.  The  gig  having  been  stolen,  the  innkeeper  was  held 
responsible. 

Richmond  v.  Smith  (8  B.  &  Creswell,  9)  was  a  recovery  against  the 


LIABILITY    FOR    GUEST'S    PROPERTY.  2  1 1 

innkeeper,  for  the  value  of  certain  packages  of  silk  which  the  plaintiff 
had  and  exposed  for  sale.  The  defence  was  attempted  on  the  ground 
that  the  plaintiff  had  taken  the  goods  under  his  own  protection  in  his 
private  room.  It  was  not  argued  that  the  circumstance  that  the  goods 
were  articles  of  merchandise  afforded  a  defence. 

Of  the  same  character  are  the  reports  in  our  own  State.  Clut< 
Wiggins  (14  J.  R.  175)  [200]  was  this  :  The  plaintiff  came  to  the  defend- 
ant's inn  with  a  load  of  wheat  and  barley,  and  was  received  as  a  guesl 
for  the  night.  The  horses  were  put  into  the  stable,  and  his  sleigh  with 
its  contents  into  a  wagon-house,  where  it  was  usual  for  the  defendant  to 
receive  loads  of  that  description.  The  next  morning  it  was  discovered 
that  the  wagon-house  had  been  broken  open,  and  the  wheat  and  barley 
stolen.  The  innkeeper  made  two  points:  1.  That  the  goods  had  not 
been  delivered  into  his  special  custody.  2.  That  he  derived  no  profit 
from  keeping  the  wheat.  The  recovery  for  the  value  of  the  grain  was 
sustained. 

In  Hallenbake  v.  Fish  (8  Wend.  547),  the  plaintiff  stopped  with 
his  horse  at  the  defendant's  inn,  and  upon  calling  for  his  horse,  his  saddle 
and  bridle  could  not  be  found.  The  plaint  ill'  brought  trover  for  the 
saddle  and  bridle.  The  Supreme  Court  held,  that  in  trover,  he  must 
prove  an  actual  conversion,  and  that  a  conversion  was  not  sufficiently 
proved.  They  say,  that  upon  the  facts  presented,  there  could  be  no 
doubt  that  an  action  on  the  case  upon  the  custom,  would  have  lain 
against  the  defendant. 

In  Piper  v.  Many  (21  Wend.  283),  the  plaintiff,  with  his  horses  and 
a  sleigh  load  of  butter,  stopped  at  the  defendant's  inn.  A  portion  of 
his  butter  was  stolen  during  the  night.  The  defendant  endeavored 
to  protect  himself  on  the  ground,  that  the  butter  was  not  brought  within 
the  inn,  but  was  left  in  the  yard.     The  court  held  the  defendant  liable. 

So  recently  as  the  year  1865,  in  Hulett  v.  Swift  (35  X.  Y.  K.  57 1  I 
[212],  a  similar  case  was  presented.  The  plaintiff's  servant,  with  his 
horses,  wagon,  and  a  load  of  buckskin  goods,  stopped  for  the  night  at 
the  defendant's  inn.  A  fire  occurred  during  the  night,  by  which  the 
property  was  destroyed.  It  did  not  appear  how  the  fire  originated, 
and  there  was  no  evidence  of  negligence  on  the  part  of  the  defendant. 
The  defendant  was  held  to  be  responsible. 

On  the  general  principle,  see  also,  Story  Com.  §§  480-481 ;  2  Bl. 
Com.  430 ;   2  Kent's  Com.  593. 

The  cases  cited,  show  that  the  distinction  contended  for  by  tin-  de- 
fendant's counsel  cannot  be  maintained.  I  am  not  aware  of  a  single 
reported  case  wdiich  sustains  it,  nor  of  any  elementary  writer,  who  gives 
countenance  to  it. 

It  is  true,  that  the  days  of  violence,  which  in  early  times  required 
this  protection  to  the  traveller,  have  passed  away.  It  is  not  certain, 
however,  that  we  are  less  exposed  to  fraud.  We  may  have  grown  wiser 
and  better  than  our  fathers.     It  is  to  be  hoped  that  we  have.     It  may 


242  INNKEEPERS. 

be,  however,  a  change  of  manners  rather  than  of  morals.  The  day  of 
the  two-handed  broad-sword  had  gone  by ;  that  of  sleight-of-hand  and 
finesse  has  come  in.  A  guest  is  in  less  danger  of  being  robbed  and 
murdered,  but  possibly  not  of  being  cheated.  He  is  now  required  to 
place  his  money  and  his  valuables  in  the  actual  custody  of  his  host,  as 
a  condition  of  a  protection  for  his  money  and  jewels.  (Laws  1855.) 
The  law  makes  no  provision  for  any  evidence  of  this  deposit.  In  the 
case  before  us,  the  clerk  declined  to  give  any.  He  deposits  his  money, 
and  that  is  all  he  knows  about  it,  and  he  can  do  nothing  toward  its 
protection.  May  the  innkeeper  say  that  he  has  been  robbed,  and  that 
he  is  thereby  excused  ?  Who  has  robbed  him,  a  stranger  or  his  servant  ? 
May  he  say  that  the  amount  is  too  large  ?  He  has  ample  means  of 
protecting  it.  If  his  servants  and  himself  are  honest,  the  money  is 
safe  in  its  deposit.  This  honesty  he  is  bound  to  guaranty.  The  guest 
is  quite  in  the  power  of  the  host,  and  unless  the  ancient  rule  is  main- 
tained, the  danger  to  the  public  will  be  great.  I  see  nothing  in  the 
present  condition  of  society,  or  modes  of  doing  business,  that  calls 
for  its  relaxation. 

[A  portion  of  the  opinion  relating  to  some  minor  points  is  omitted.] 

Upon  the  whole  case,  I  am  of  the  opinion  that  the  order  of  the  General 
Term,  directing  judgment  for  $1000,  be  reversed,  with  costs,  and  the 
judgment  be  entered  upon  the  verdict  of  the  jury,  with  costs. 

All  concur. 

Judgment  reversed,   and  judgment  ordered  for  the  plaintiff  for 
$21,649.27,  and  interest  from  the  rendition  of  the  verdict. 


FISHER  v.  KELSEY. 

121  U.  S.  383 ;  7  S.  C.  Rep.  929.     1887. 

This  was  an  action  at  law.  Judgements  for  defendants.  Plaintiffs 
sued  out  this  writ  of  error.  The  case  is  stated  in  the  opinion  of  the 
court. 

Mr.  Justice  Harlan.  By  the  general  statutes  of  Missouri  of  1865, 
c.  99,  it  was  provided  that  — 

§  1.  "No  innkeeper  in  this  state,  who  shall  constantly  have  in  his 
inn  an  iron  safe,  in  good  order,  and  suitable  for  the  safe  custody  of 
money,  jewelry,  and  articles  of  gold  and  silver  manufacture,  and  of  the 
like,  and  who  shall  keep  a  copy  of  this  chapter  printed  by  itself,  in  large, 
plain  English  type,  and  framed,  constantly  and  conspicuously  suspended 
in  the  office,  bar-room,  saloon,  reading,  sitting,  and  parlor  room  of  his 
inn,  and  also  a  copy  printed  by  itself  in  ordinary  size  plain  English 
type  posted  upon  the  inside  of  the  entrance  door  of  every  public  sleep- 
ing-room of  his  inn,  shall  be  liable  for  the  loss  of  any  such  articles 


LIABILITY    FOR   GUEST  S    PROPERTY. 

aforesaid  suffered  by  any  guest,  unless  such  guest  shall  have  first  offered 
to  deliver  such  property  lost  by  him  to  such  innkeeper  for  custody  in 
such  iron  safe,  and  such  innkeeper  shall  have  refused  or  omitted  to  take 
it  and  deposit  it  in  such  safe  for  its  custody,  and  to  give  such  guest  a 
receipt  therefor. 

§  2.  "No  innkeeper  in  this  state  shall  be  liable  for  the  loss  of  any 
baggage  or  other  property  of  a  guest  caused  by  fire  not  intentionally 
produced  by  the  innkeeper  or  his  servants;  but  innkeepers  shall  In- 
liable  for  the  losses  of  their  guests  caused  by  the  theft  or  negligent 
the  innkeeper,  or  of  his  servants,  anything  herein  to  the  contrary  not- 
withstanding." 

The  last  section  was  amended  by  an  act  approved  April  1,  1872, 
as  to  read:  "No  innkeeper  in  this  state  shall  be  liable  for  the  loss  of 
any  baggage  or  other  property  of  a  guest  caused  by  fire  not  intention- 
ally produced  by  the  innkeeper  or  his  servants ;  nor  shall  he  be  liable 
for  the  loss  of  any  merchandise  for  sale  or  sample  belonging  to  a  guest, 
unless  the  guest  shall  have  given  written  notice  of  having  such  mer- 
chandise for  sale  or  sample  in  his  possession  after  entering  the  inn,  nor 
shall  the  innkeeper  be  compelled  to  receive  such  guest  with  merchandise 
for  sale  or  sample.  But  innkeepers  shall  be  liable  for  the  losses  of  their 
guests  caused  by  the  theft  of  such  innkeeper,  or  his  servants,  anything 
herein  to  the  contrary  notwithstanding." 

William  M.  Fisher,  having  in  his  possession,  as  a  travelling  salesman 
for  the  firm  of  which  he  was  a  member,  certain  goods,  consisting  mainly 
of  gold  chains,  chain  trimmings,  and  necklaces,  was  received,  with  his 
goods,  into  the  Planters'  House,  in  St.  Louis  —  a  public  inn  kept  by 
the  defendants  in  error  —  and  was  supplied,  at  his  own  request,  with  a 
room  in  which  such  articles  could  be  exhibited  to  customers.  During 
his  occupancy  of  the  room  for  that  purpose,  $12,626.32  in  value  of  the 
articles  were,  without  his  knowledge,  taken  and  carried  away,  so  that 
they  could  not  be  recovered.  It  does  not  appear  that  the  loss  was 
attributable  to  the  neglect  either  of  Fisher  or  of  the  innkeepers.  Al- 
though the  nature  of  his  business  was  well  known  to  the  defendants, 
and  they  were  aware  that  the  articles  in  question  were  brought  into  tin- 
hotel  to  be  exhibited  for  sale,  in  a  room  to  be  occupied  for  that  purpose, 
written  notice  was  not  served  upon  them  that  Fisher  had  "such  mer- 
chandise for  sale  or  sample  in  his  possession  after  entering  the  inn. 
In  this  action,  brought  to  recover  the  value  of  the  goods  stolen  or  lost, 
the  court  held  that  such  a  notice  was  required,  by  the  statutes  of  Mis- 
souri, in  order  to  fix  liability  upon  the  innkeeper.  The  jury  having 
been  so  instructed,  there  was  a  verdict  and  judgement  for  the  defendants. 

Although  Fisher  was  received  by  the  defendants  into  their  hotel, 
as  a  guest,  with  knowledge  that  his  trunks  contained  articles  having 
no  connection  with  his  comfort  or  convenience  as  a  mere  traveller  i 
wayfarer,  but  which,  at  his  request,  were  to  be  placed  on  exhibition  i 
for  sale,  in  a  room  assigned  to  him  for  that  purpose,  they  would  not, 


244  INNKEEPERS. 

under  the  doctrines  of  the  common  law,  be  held  to  the  same  degree  of 
care  and  responsibility,  in  respect  to  the  safety  of  such  articles,  as  is 
required  in  reference  to  baggage  or  other  personal  property  carried  by 
travellers.  He  was  entitled,  as  a  traveller,  to  a  room  for  lodging,  but 
he  could  not,  of  right,  demand  to  be  supplied  with  apartments  in  which 
to  conduct  his  business  as  a  salesman  or  merchant.  The  defendants 
being  the  owners  or  managers  of  the  hotel,  were  at  liberty  to  permit  the 
use  by  Fisher  of  one  of  their  rooms  for  such  business  purposes,  but  they 
would  not,  for  that  reason  and  without  other  circumstances,  be  held 
to  have  had  his  goods  in  their  custody,  or  to  have  undertaken  to  well 
and  safely  keep  them  as  constituting  part  of  the  property  which  he 
had  with  him  in  his  capacity  as  guest.  Kent  says  that,  "if  a  guest 
applies  for  a  room  in  an  inn,  for  a  purpose  of  business  distinct  from  his 
accommodation  as  a  guest,  the  particular  responsibility  does  not  ex- 
tend to  goods  lost  or  stolen  from  that  room."  2  Kent,  Com.  596. 
See  also  Myers  v.  Cottrill,  5  Bissell,  465,  470,  Drummond,  J. ;  Story 
on  Bailments,  §  476 ;  Burgess  v.  Clements,  4  M.  &  S.  306 ;  Redfield 
on  Carriers  and  Bailees,  443 ;  Addison,  Law  of  Contracts,  6th  ed.,  360. 

Such,  we  think,  was  the  state  of  the  law  in  Missouri  prior  to  the 
passage  of  the  act  of  1872.  That  act  prescribes  the  conditions  upon 
which  an  innkeeper  in  that  state  may  be  made  liable  for  the  loss  of 
merchandise  belonging  to  a  guest,  and  brought  into  the  hotel  only 
to  be  exhibited  or  sold.  In  view  of  the  large  and  constantly  increasing 
business  transacted  by  travelling  salesmen,  the  legislature  of  Missouri 
deemed  it  just  to  all  concerned,  that  their  relation  with  innkeepers, 
in  respect  to  goods  carried  by  them,  should  be  clearly  defined  and  not 
left  to  depend  upon  mere  inference  or  usage.  The  statute  makes  the 
innkeeper  responsible,  in  every  event,  for  the  loss  of  baggage  or  other 
property  of  the  guest  by  fire,  intentionally  produced  by  the  innkeeper 
or  his  servants,  or  by  the  theft  of  himself  or  servants.  But  since  the 
innkeeper  is  not  ordinarily  bound  to  the  same  care  for  the  safety  of 
goods,  in  the  possession  of  a  guest  for  the  purpose  merely  of  being  exhib- 
ited or  sold,  as  for  articles  carried  by  the  latter  for  his  comfort  or  con- 
venience as  a  traveller,  the  statute  changed  the  rule  so  as  to  make  his 
responsibility  the  same  in  both  cases ;  provided,  in  the  former  case, 
the  person  received  as  a  guest  gives  written  notice  that  he  has  mer- 
chandise for  sale  or  sample  in  his  possession  in  the  hotel ;  leaving  the 
innkeeper,  upon  such  notice,  to  elect  whether  he  will  permit  the  guest 
to  remain  in  the  hotel  with  such  merchandise  for  sale  or  sample.  Notice 
in  this  form,  when  the  guest  is  permitted  to  remain  in  the  hotel  with 
merchandise  in  his  possession  "for  sale  or  sample,"  is  made  by  the 
statute  evidence  that  the  innkeeper  has  assumed  responsibility  for  the 
safety  of  such  merchandise,  to  the  full  extent  that  he  is  bound  by  the 
settled  principles  of  law  for  the  safety  of  the  baggage  or  other  articles 
brought  by  guests  into  the  hotel. 

It  is  suggested  that  the  purpose  of  the  act  of  1872  was  to  protect 


REGULATIONS. 

innkeepers,  and,  therefore,  actual  knowledge  that  a  guest  has  in  his 
possession  merchandise  for  sale,  or,  at  least,  the  consent  of  the  inn- 
keeper to  the  guest's  use  of  a  room  in  his  hotel  for  such  purpose,  should 
be  deemed  sufficient  to  fasten  upon  the  innkeeper  responsibility  for  the 
safety  of  such  merchandise.  It  seems  to  us  that  the  statute  is  equally 
for  the  benefit  of  travelling  salesmen.  Be  this  as  it  may,  as  the  law 
in  regard  to  the  liability  of  an  innkeeper  is  one  of  extreme  rigor,  he 
should  not  be  held  to  any  responsibility  beyond  that  ari  rom  the 

relation  of  innkeeper  and  guest,  unless,  at  least,  the  circumstances  show- 
that  he  distinctly  agreed  to  assume  such  additional  responsibility. 
There  is  no  pretence  in  this  case  that  the  defendants  made  an 
agreement  of  that  character.  Nor  can  such  an  agreement  be  implied 
merely  from  the  knowledge  on  the  part  of  the  innkeeper  that  a  gi 
has  in  his  possession  in  the  hotel,  for  exhibition  or  sale,  merchandise 
for  the  safe  custody  of  which  he  is  not  ordinarily  responsible.  Such 
knowledge  implies  nothing  more  upon  the  part  of  the  innkeeper  than 
his  assent  to  the  use  of  his  rooms  for  purposes  of  that  kind. 

If  as  to  such  merchandise,  it  is  intended  to  hold  the  innkeeper  to  the 
strict  liability  imposed,  at  the  common  law,  in  respect  to  the  bagj 
or  other  personal  property  of  a  guest,  the  statute  indicates  the  mode 
in  which  that  intention  must  be  manifested.  The  guest  must  give  notice 
of  such  intention.  And  as  the  notice  is  expressly  required  to  be  in 
writing,  no  other  form  of  notice  can  be  deemed  a  compliance  with 
the  statute.  Porter  v.  Gilkey,  57  Missouri,  235,  237.  With  the  rea- 
sons which  induced  the  legislature  to  prescribe  a  written  notice  in  order 
to  fix  upon  the  innkeeper  responsibility  for  the  safety  of  merchandise 
carried  by  travelling  salesmen  for  sale  or  sample,  we  have  nothing  to 
do.  The  law  of  Missouri  is  so  written,  and  it  is  our  duty  to  give  it 
effect  according  to  the  fair  meaning  of  the  words  employed. 

It  results  that  the  court  below  did  not  err  in  refusing  the  instruction 
asked  by  the  plaintiffs,  but  correctly  held  that  the  absence  of  the  written 
notice  required  by  the  act  of  1872  was  fatal  to  their  right  to  recover. 
The  judgment  is 

Affirmed. 


5.   REGULATIONS. 

MARKHAM  v.   BROWN. 

8  N.  H.  523;   31  Am.  D.  209.     1837. 

Trespass,  for  breaking  and  entering  the  plaintiff's  house,  in  Hanover, 
being  a  common  inn,  and  making  a  noise  and  disturbance  therein. 
and  assaulting  and  beating  the  plaintiff  at  sundry  times  between  the 
first  of  July,  1835,  and  the  date  of  the  writ,  which  was  October  8,  1 835. 


246  INNKEEPERS. 

Plea,  the  general  issue,  with  the  brief  statement  that  the  defendant 
was  the  driver  of  a  stage  coach,  and  entered  the  plaintiff's  house  to 
enquire  for  passengers,  and  that  the  force,  if  any,  was  the  plaintiff's 
own  assault. 

Parker,  J.  An  innkeeper  holds  out  his  house  as  a  public  place  to 
which  travellers  may  resort,  and  of  course  surrenders  some  of  the  rights 
which  he  would  otherwise  have  over  it.  Holding  it  out  as  a  place  of 
accommodation  for  travellers,  he  cannot  prohibit  persons  who  come 
under  that  character,  in  a  proper  manner,  and  at  suitable  times,  from 
entering,  so  long  as  he  has  the  means  of  accommodation  for  them. 

But  he  is  not  obliged  to  make  his  house  a  common  receptacle  for 
all  comers,  whatever  may  be  their  character  or  condition.  He  is  not 
obliged  to  receive  one  who  is  not  able  to  pay  for  his  entertainment 
(3  Barn.  &  Aid.  283,  Thompson  v.  Lacy) ;  and  there  are  considerations 
of  greater  importance  than  this.  He  is  indictable  if  he  usually  harbor 
thieves  (1  Hawk.  Ch.  78,  sect.  1 ;  Bac.  Ab.,  Inns.  &c.)  and  he  is  answer- 
able for  the  safe  keeping  of  the  goods  of  his  guests  (Story  on  Bailment, 
307),  and  is  not  bound  to  admit  one  whose  notorious  character  as  a 
thief  furnishes  good  reason  to  suppose  that  he  will  purloin  the  goods  of 
his  guests,  or  his  own. 

So  he  is  liable  if  his  house  is  disorderly  (1  Hawk.  451),  and  cannot 
be  held  to  wait  unless  an  affray  is  begun  before  he  interpose,  but  may 
exclude  common  brawlers,  and  any  one  who  comes  with  intent  to  com- 
mit an  assault  or  make  an  affray. 

So  he  may  prohibit  the  entry  of  one  whose  misconduct  in  other  particu- 
lars, or  whose  filthy  condition,  would  subject  his  guests  to  annoyance. 

He  has  a  right  to  prohibit  common  drunkards  and  idle  persons  from 
entering,  and  to  require  them,  and  others  before  mentioned,  to  depart, 
if  they  have  already  entered. 

And  any  person  entering  not  for  a  lawful  purpose,  but  to  do  an  un- 
lawful act  —  as  to  commit  an  assault  upon  one  lawfully  there  —  must 
be  deemed  a  trespasser  in  entering  for  such  unlawful  purpose. 

As  he  is  bound  to  admit  travellers,  under  certain  limitations,  he  may 
likewise  be  held,  under  proper  limitations,  to  admit  those  who  have 
business  with  them  as  such.  This  may  be  considered  as  derived  from 
the  right  of  the  traveller.  It  is  conceded  that  he  may  be  bound  to  per- 
mit the  entry  of  persons  who  have  been  sent  for  by  the  guest.  But  we 
think  the  rule  is  not  to  be  limited,  in  all  cases,  to  this.  There  may  be 
such  connection  between  travellers  and  those  engaged  in  their  convey- 
ance, that  the  latter,  although  not  specially  sent  for,  may  have  a  right 
to  enter  a  common  inn ;  or  such  that  the  landlord,  if  he  give  a  general 
license  to  some  of  those  whose  business  is  connected  with  his  guests, 
in  their  characters  as  travellers,  cannot  lawfully  exclude  others,  pursu- 
ing the  same  business,  and  who  enter  for  a  similar  object. 

There  seems  to  be  no  good  reason  why  the  landlord  should  have  the 
power  to  discriminate  in  such  cases,  and  to  say  that  one  shall  be  admitted 


REGULATIONS. 

and  another  excluded,  so  long  as  each  has  the  same  connection  with 
his  guests  —  the  same  lawful  purpose  —  comes  in  a  like  suitable  condi- 
tion, and  with  as  proper  a  demeanor;  any  more  than  he  has  the  righl 
to  admit  one  traveller  and  exclude  another,  merely  because  it  is  his 
pleasure. 

If  one  comes  to  injure  his  house,  or  if  his  business  operates  directly 
as  an  injury,  that  may  alter  the  case  —  but  that  has  not  been  alleged 
here.  And  perhaps  there  may  be  cases  in  which  he  may  have  a  righl 
to  exclude  all  but  travellers  and  those  who  have  been  sent  for  by  them. 
It  is  not  necessary  to  settle  that  at  this  time. 

In  the  present  case  it  appears  that  stage  coaches  brought  their  pas- 
sengers to  the  plaintiff's  inn  from  various  quarters,  and  carried  them 
away  in  different  directions.  It  is  understood  that  Hanover  was  not 
a  place  where  the  lines  of  stages  or  conveyances  terminated,  and  where 
passengers  were  left  to  seek  their  own  conveyance  onward,  as  is  often 
the  case  in  the  larger  cities  ;  but  that  the  line  of  stages  extended  through 
the  place  in  such  manner  that  travellers  might  reasonably  expect  con- 
veyances onward  would  be  tendered  for  their  use. 

The  drivers  of  some  of  the  coaches  were  accustomed  to  resort  to  the 
plaintiff's  inn,  and  boarded  there. 

Under  these  circumstances,  we  see  no  objection  to  the  first  part  of 
the  charge  to  the  jury.  The  defendant  had  clearly  a  right  to  establish 
a  line  of  stage  coaches,  and  to  go  to  the  plaintiff's  inn  with  travellers, 
and  he  might  of  course  lawfully  enter  it  for  the  purpose  of  leaving  their 
baggage  and  receiving  his  fare. 

And  we  are  of  the  opinion  that,  so  long  as  others  were  permitted  to 
do  the  same,  the  defendant  had  an  equal  and  lawful  right,  notwith- 
standing any  prohibition  by  the  plaintiff,  to  enter  the  plaintiff's  inn  for 
the  purpose  of  tendering  his  coach  for  the  use  of  travellers,  and  solicit- 
ing them  to  take  passage  with  him  ;  and  for  that  purpose  to  go  into  the 
common  public  rooms  of  the  inn,  where  guests  were  usually  placed  to 
await  the  departure  of  the  stages,  although  he  was  not  requested  by 
such  guest;  provided  there  was  a  reasonable  expectation  that  pas- 
sengers might  be  there,  and  he  came  at  a  suitable  time,  in  a  proper 
manner,  demeaned  himself  peaceably,  and  remained  no  longer  than 
was  necessary,  and  was  doing  no  injury  to  the  plaintiff. 

But  the  jury  should  have  been  instructed  that  the  defendant  might 
forfeit  this  right  by  his  misconduct,  so  that  the  plaintiff  might  require 
him  to  depart,  and  expel  him;  and  if,  by  reason  of  several  instan. 
of  misconduct,  it  appeared  to  be  necessary  for  the  protection  of  his 
guests  or  of  himself,  the  plaintiff  might  prohibit  the  defendant  from 
entering  again,  until  the  ground  of  apprehension  was  removed.  Thus 
if  affrays  or  quarrels  were  caused  through  his  fault,  or  he  was  noisy, 
disturbing  the  guests  in  the  house  —  interfered  with  its  due  regulation 
—  intruded  into  the  private  rooms  —  remained  longer  than  was  nee 
sary,  after  being  requested  to  depart  —  or  otherwise  abused  his  right, 


248  INNKEEPERS. 

as  by  improper  importunity  to  guests  to  induce  them  to  take  passage 
with  him  ;  the  plaintiff  would  have  a  right  to  reform  that,  and,  if  neces- 
sary, to  forbid  the  defendant  to  enter,  and  treat  him  as  a  trespasser  if 
he  disregarded  the  prohibition. 

So,  if,  after  a  lawful  entry  of  the  defendant,  he  committed  an  assault 
upon  the  plaintiff,  or  any  trespass  upon  his  property ;  the  plaintiff  might 
treat  him  as  having  entered  for  the  unlawful  purpose,  and  as  a  tres- 
passer ab  initio.  8  Co.  (Dub.  ed.)  291 ;  10  Johns.  373  ;  12  Johns.  408 ; 
11  East,  402;   5  Taunt.  198. 

Perhaps  the  trespass  upon  the  person  or  property  of  a  guest  might 
come  within  the  same  rule  —  but  this  is  not  clear,  and  need  not  now  be 

settled. 

If  others  were  guilty  of  an  assault  upon  the  defendant,  or  of  mis- 
conduct towards  him,  that  would  not  justify  him  in  making  an  assault, 
except  in  self-defence,  nor  furnish  an  excuse  for  improper  conduct  on 
his  part ;  but  if  he  behaved  himself  with  propriety,  the  misconduct  of 
the  drivers  of  other  lines  towards  him  would  furnish  no  ground  for  his 
exclusion,  unless  it  was  at  the  time  of  a  disturbance,  and  for  the  pur- 
pose of  restoring  quiet  to  the  house. 

As  the  jury  were  not  correctly  instructed  upon  these  points  there 
must  be  a  New  triaL 


STATE  v.   STEELE. 
106  N.  Car.  766;    11  S.  E.  R.  478;    19  Am.  St.  R.  573.     1890. 

[In  a  prosecution  for  assault  and  battery  before  a  Justice  of  the 
peace,  defendant,  the  manager  of  the  Battery  Park  Hotel,  was  charged 
with  having  forcibly  «nd  wrongfully  ejected  one  Weaver  from  the 
hotel  premises.  The  defense  was  that  Weaver  was  at  the  time  of  the 
alleged  ejection,  engaged  in  soliciting  business  as  a  livery  man  from  the 
guests  of  the  hotel,  in  violation  of  regulations  made  by  its  manage- 
ment. The  defendant,  having  been  convicted  in  the  Justice's  Court, 
appealed  to  the  county  Criminal  Court,  where  he  was  again  convicted 
on  a  trial  before  a  jury,  and  from  this  conviction  he  now  appeals.  The 
exceptions  relied  on  related  to  instructions  in  which  it  was  left  to  the 
jury  to  say  whether  or  not  the  rules  and  regulations  adopted  by  the 
Battery  Park  Hotel  were  reasonable  and  proper,  and  whether  other 
persons  engaged  in  the  same  business  as  the  prosecutor  were  permitted 
by  the  defendant  to  go  to  the  hotel  for  the  same  purpose  for  which 
the  prosecutor  went  there,  the  jury  being  told  that  under  such  circum- 
stances it  would  not  matter  that  the  rules  of  the  hotel  forbade  the 
prosecutor  to  enter  the  premises  of  the  hotel  for  that  purpose.] 

Avery,  J.  It  was  formerly  held  by  the  courts  of  England  that  where 
an  innkeeper  ailured  travellers  to  his  tavern  by  holding  himself  out  to 


REGULATION'S.  249 

the  public  as  ready  to  entertain  them,  and  then  refused  to  receive  them 
into  his  house  when  he  had  room  to  accommodate  them,  and  after 
they  had  tendered  the  money  to  pay  their  bills,  he  was  liable  to  indict- 
ment. But  this  doctrine,  says  Bishop,  has  little  practical  effect  at  this 
time,  being  rather  a  relic  of  the  past  than  a  living  thing  of  the  present  : 
1  Bishop  on  Criminal  Law,  sec.  532;  Rex  v.  Lewellyn,  12  Mod.  Rep. 
445.  In  a  dictum  in  State  v.  Mathews,  2  Dev.  &  B.  42  1,  this  old  principle 
was  stated  with  some  qualification,  viz.,  "that  all  and  every  one  of 
the  citizens  have  a  right  to  demand  entertainment  of  a  public  innkeei 
if  they  behave  themselves  and  are  willing  and  able  to  pay  for  their 
fare;  and  as  all  have  a  right  to  go  there  and  be  entertained,  they  are 
not  to  be  annoyed  there  by  disorder,  and  if  the  innkeeper  permits  it, 
he  is  subject  to  be  indicted  for  a  nuisance"  :  Rommel  v.  Schambacl 
120  Pa.  St.  579  [6  Am.  St.  Rep.  732].  The  duty  and  legal  obligation 
resting  upon  the  landlord  is  to  admit  only  such  guests  as  demand  accom- 
modation, and  he  has  the  right  to  refuse  to  allow  even  travelers  who 
are  manifestly  so  filthy,  drunken,  or  profane  as  to  prove  disagreeable 
to  others  who  are  inmates,  and  thereby  to  injure  the  reputation  of  his 
house,  to  enter  his  inn  for  food  or  shelter,  though  they  may  be  abun- 
dantly able  to  pay  his  charges  :  2  Wharton  on  Criminal  Law,  sec.  1587  ; 
Regius  v.  Rymer,  13  Cox  C.  C.  378.  The  right  to  demand  admission 
to  the  hotel  is  confined  to  persons  who  sustain  the  relation  of  guests, 
and  does  not  extend  to  every  individual  who  invades  the  premises,  not 
in  response  to  the  invitation  given  by  the  innkeeper  to  the  public,  but 
in  order  to  gratify  his  curiosity  by  seeing,  or  his  cupidity  by  trading 
with,  patrons  who  are  under  the  protection  of  the  proprietor  :  Wharton 
on  Criminal  Law,  sec.  625.  The  landlord  is  not  only  under  no  obliga- 
tion to  admit  but  he  has  the  power  to  prohibit  the  entrance  of  any 
person  or  class  of  persons  into  his  house  for  the  purpose  of  plying  his 
guests  with  solicitations  for  patronage  in  their  business  ;  and  especially 
is  this  true  when  the  very  nature  of  the  business  is  such  that  human  ex- 
perience would  lead  us  to  expect  the  competing  drummers,  in  the  heat 
of  excitement,  not  only  to  trouble  the  guests  by  earnest  and  continued 
approaches,  but  by  their  noise,  or  even  strife.  The  guest  has  a  positive 
right  to  demand  of  the  host  such  protection  as  will  exempt  him  from 
annoyance  by  persons  who  intrude  upon  him,  without  invitation  and 
without  welcome,  and  subject  him  to  torture  by  a  display  of  their 
wares  or  books,  or  a  recommendation  of  their  nostrums  or  busini 

That  learned  and  accomplished  jurist  Chief  Justice  Shaw,  delivering 
the  opinion  in  Commonwealth  v.  Power,  7  Met.  600  [41  Am.  Dee.  465], 
said  :  "An  owner  of  a  steamboat  or  railroad,  in  this  respect,  is  in  a  con- 
dition somewhat  similar  to  that  of  an  innkeeper,  whose  premises  are 
open  to  all  guests;  yet  he  is  not  only  empowered,  but  he  is  bound,  so 
to  regulate  his  house  as  well  with  regard  to  the  peace  and  comforl  of  his 
guests  wdio  there  seek  repose  as  to  the  peace  and  quiet  of  tin1  vicinity, 
and  to  repress  and  prohibit  all  disorderly  conduct  therein;    and  of 


250  INNKEEPERS. 

course  he  has  a  right  and  is  bound  to  exclude  from  his  premises  all  dis- 
orderly persons  and  all  persons  not  conforming  to  regulations  neces- 
sary and  proper  to  secure  such  quiet  and  good  order.     This  principle 
was  stated  as  an  established  one,  and  used  by  the  court  as  an  argument 
to  sustain,  by  analogy,  its  ruling,  announced  in  a  subsequent  portion 
of  the  opinion,  that  a  railroad  company  had  a  right,  by  its  regulations, 
to  exclude  from  its  depot  and  cars,  at  any  station,  persons  who  visited 
them  for  the  purpose  of  soliciting  passengers  to  stop  at  particular 
hotels ;   and  one  of  the  reasons  given  for  holding  the  regulation  rea- 
sonable was,  that  where  the  agents  urged  the  claims  of  their  respective 
hotels  "  with  earnestness  and  importunity,  it  was  an  annoyance  to  the 
passengers."     The  doctrine  is  there  laid  down,  too,  that  persons  other 
than  passengers  prima  facie  have  the  right  to  enter  the  depot  of  a  rail- 
road company,  as  others  besides  guests  may  go  into  hotels  without 
making  themselves  trespassers,  because,  in  both  instances,  there  is  an 
implied  license  given  to  the  public  to  enter ;   but  such  licenses,  in  their 
nature,  are  revocable,  except  in  one  case  as  to  passengers,  and  in  the 
other  as  to  guests,  who  have  the  right  to  enter  the  train,  ticket-office, 
or  hotel,  as  the  case  may  be,  if  they  are  sober,  orderly,  and  able  to  pay 
for  transportation  or  fare.     The  court  went  further  in  that  case,  and 
held  that  in  enforcing  the  reasonable  regulation  against  drummers  for 
hotels  at  the  depot,  the  servants  of  the  railway  company  were  not 
guilty  of  an  assault  for  expelling  by  force,  not  excessive,  a  person 
who  had  repeatedly  violated  the  regulation  by  going  upon  the  platform 
and  soliciting  for  a  hotel,  though,  on  the  particular  occasion  when 
he  was  ejected  from  it  he  had  a  ticket  and  intended  to  take  the  train 
destined  for  another  town,  but  failed  to  disclose  to  such  servants  the 
fact  that  he  entered  for  "  another  purpose,  when  it  was  in  his  power 
to  do  so."     Were  we  to  follow  the  analogy  to  which  the  principle  laid 
down  in  that  case  would  lead,  an  innkeeper  could  not  only  make  and 
enforce  a  regulation  forbidding  persons  to  come  on  his  premises  for  the 
purpose  of  soliciting  his  guests  to  patronize  the  livery-stables  that  they 
might  represent,  but  he  might,  in  enforcing  the  rule  against  one  who 
had  previously  violated  it  after  notice  that  he  should  not  do  so,  put  such 
person  off  his  premises,  without  excessive  force,  though  at  the  particu- 
lar time  the  person  had  entered  with  the  bona  fide  intent  to  become  a 
guest  at  the  hotel,  but  failed  to  announce  his  purpose ;    or  under  the 
same  principle,  he  might  expel  by  force  one  who  becomes  a  guest  and 
takes  advantage  of  his  situation  to  subject  other  inmates  of  the  house 
to  the  annoyance  of  drumming  for  such  establishments.     The  same 
distinction  is  drawn  between  guests  and  others  who  enter  a  hotel  intent 
on  business  or  pleasure,  by  the  courts  of  Pennsylvania.     In  Common- 
wealth v.  Michell,  1  Phila.  63,  and  Commonwealth  v.  Mitchell,  2  Pars. 
Cas.  431,  it  was  held  that  an  innkeeper  is  bound  to  receive  and  fur- 
nish food  and  lodging  for  all  who  enter  his  hotel  as  guests  and  tender 
him  a  reasonable  price  for  such  accommodations ;  but  "  if  an  individual 


REGULATIONS.  251 

(other  than  a  guest)  enters  a  public  inn,  and  his  presence  is  disagreeable 
to  the  proprietor  and  his  guests,  he  has  a  right  to  request  the  pel 
depart,  and,  in  case  of  refusal,  to  lay  his  hands  gently  upon  him  and  I 
him  out,  and  if  resistance  is  made,  to  employ  sufficient  force  to  put 
him  out,   without  incurring  liability  to   indictment   for   assault   and 
battery." 

Justice  Story,  in  Jencks  v.  Coleman,  2  Sum.  244  [891],  discussed  the 
doctrine  to  which  we  have  referred,  that  the  right  even  of  one  who 
pays  for  his  passage  on  a  steamboat  or  railway  is  subject  not  only  t<> 
the  limitation  that  he  shall  be  sober,  and  shall  not  be  guilty  of  such 
nuisance  or  make  such  disturbance  as  shall  annoy  other  passenger 
whose  characters  are  doubtful,  dissolute,  suspicious,  or  unequivocally 
bad,  but  to  the  further  restriction  that  he  may  be  refused  admittance, 
or  expelled  after  he  enters  the  boat  or  car,  if  it  appear  that  his  object 
is  to  interfere  with  the  interests  or  patronage  of  the  proprietors,  or  com- 
pany, so  as  to  make  the  business  less  lucrative  to  them." 

In  the  case  last  cited,  the  proprietors  of  the  boat  Franklin  had 
entered  into  a  contract  to  run  a  line  of  stages  between  Boston  and  Provi- 
dence in  connection  with  the  boat,  which  was  running  from  New  York 
to  Providence.  The  plaintiff,  Jencks,  had  been  in  the  habit  of  coming 
on  board  the  boat  at  Newport  to  solicit  passengers  for  an  opposite 
line  of  stages  between  Providence  and  Boston,  thus  interfering  with 
the  owners  of  the  boat,  and  the  arrangement  made  by  them  for  their 
own  profit  and  advantage  with  a  different  line  from  that  represented 
by  said  plantiff,  just  as  in  the  case  at  bar  the  proprietors  of  the  hotel 
had  entered  into  a  contract  with  one  Sevier  by  which  they  were  to  re- 
ceive ten  per  centum  of  the  amount  realized  by  him  for  the  hire  of 
carriages  to  the  guests  of  the  Battery  Park  Hotel.  Justice  Story,  too, 
runs  the  parallel  between  the  hotel  and  the  boat  line  just  as  Chief  Jus- 
tice Shaw  did  between  the  inn  and  the  railway  company,  but  with  the 
marked  difference  that  the  former  goes  much  further  in  tracing  the  anal- 
ogy that  makes  the  public  house  subject  to  some  of  the  same  liabilities 
created,  and  entitled  to  the  full  measure  of  protection  afforded  by  law 
to  companies  engaged  in  transporting  passengers.  In  discussing  the 
principle,  he  says:  "A  case  still  more  strongly  in  point,  and  which,  in 
my  judgement,  completely  meets  the  present,  is  that  of  an  innkeeper. 
Suppose  passengers  are  accustomed  to  breakfast  or  dine  or  sup  at  his 
house,  and  an  agent  is  employed  by  a  rival  house,  at  the  distance  of  a 
few  miles,  to  decoy  the  passengers  away  the  moment  they  arrive  at  the 
inn.  Is  the  innkeeper  bound  to  entertain  and  lodge  such  agent,  and 
thereby  enable  him  to  accomplish  the  very  objects  of  his  mission,  to 
the  injury  or  ruin  of  his  own  interests  ?     I  think  not." 

In  the  case  of  Barney  v.  Oyster  Bay,  etc.  Steamboat  Co.,  t',7  N.  Y. 
302  [23  Am.  Rep.  115],  the  court  of  appeals  held  that  a  company  running 
a  line  of  steamboats  for  transporting  passengers  had  a  righl  to  establis 
in  connection  with  their  boats,  an  agency  for  the  delivery  of  ba{ 


252  INNKEEPERS. 

the  terminus,  and  that  one  who  had  had  the  contract  to  transfer  such 
baggage  upon  similar  terms  two  years  before  could  be  expelled  and 
refused  as  a  passenger,  if,  after  notice,  he  would  not  discontinue  his 
efforts  to  induce  passengers  to  employ  him  in  the  same  capacity  rather 
than  an  expressman  with  whom  the  company  had  entered  into  a  later 
agreement,  for  their  own  pecuniary  interest,  to  deliver  the  baggage  of 
its  passengers.  All  of  the  authorities  that  we  have  cited  above  are 
collated  and  approved  in  Angell  on  Carriers,  sees.  530,  530a,  530b. 

In  the  case  of  Harri3  v.  Stevens,  31  Vt.  79  [73  Am.  Dec.  337],  it  was 
held  that  when  a  railway  company  erected  station  houses,  it  impliedly 
opened  the  doors  of  them  to  every  person  to  enter,  but  that  the  license 
was  revocable  to  all  persons  except  those  who  had  legitimate  business 
there,  growing  out  of  the  operation  of  the  road,  and  with  the  officers 
and  employees  of  the  company,  and  that  the  corporation  had  the  right 
to  direct  all  other  persons  to  leave  the  depot  or  ticket-office,  and  on 
their  refusal  to  depart,  to  remove  them.  It  was  further  held,  in  the 
same  case,  that  it  was  a  reasonable  regulation  to  require  every  one  who 
expected  to  take  the  train,  and  desired  to  remain  in  the  station  house 
for  that  purpose,  to  purchase  a  ticket,  and  that  the  servants  of  the 
company  would  be  justified  in  expelling,  without  excessive  force,  one 
who  did  not  declare  his  purpose  to  buy  a  ticket,  and  actually  buy  it 
within  a  reasonable  time,  or  one  who  had  bought  a  ticket,  even  if  he 
failed  to  disclose  that  fact  when  requested  to  leave. 

In  the  recent  case  of  Old  Colony  R.  R.  Co.  v.  Tripp,  147  Mass.  35 
[9  Am.  St.  Rep.  661]  [894]  the  court  laid  down  the  rule  in  reference  to 
the  rights  of  persons  at  depots,  as  follows :  "  Passengers  taking  and 
leaving  the  cars  at  the  station,  and  persons  setting  down  passengers 
or  delivering  merchandise  or  baggage  for  transportation  from  stations, 
or  taking  up  passengers  or  receiving  merchandise  that  had  been  trans- 
ported to  the  station,  had  a  right  to  the  building  and  grounds,  superior 
to  the  right  of  the  plaintiff  [corporation]  to  exclusive  occupancy." 
And  it  is  further  held  to  be  the  correct  construction  to  be  placed  on  a 
statute  passed  by  the  legislature,  giving  to  all  persons  "equal  terms, 
facilities,  and  accommodations  for  the  use  of  its  and  other  buildings 
and  grounds,"  that  it  was  intended  only  to  govern  the  relation  between 
the  common  carrier  and  its  patrons  ;  and  hence  that  a  railroad  company, 
even  in  the  face  of  such  a  statute,  had  a  right  to  contract  with  an 
individual  to  furnish  the  means  to  carry  incoming  passengers,  or  their 
baggage  and  merchandise,  from  its  stations,  and  might  grant  to  him  the 
exclusive  right  to  solicit  the  patronage  of  such  passengers. 

Upon  a  review  of  all  the  authorities  accessible  to  us,  and  upon  the 
application  of  well-established  principles  of  law  to  the  admitted  facts 
of  this  particular  case,  we  are  constrained  to  conclude  that  there  was 
error  in  the  charge  given  by  the  court  to  the  jury.   .   .   . 

3.  The  regulation,  if  made  by  an  innkeeper,  that  the  proprietors  of 
livery-stables,  and  their  agents  or  servants,  shall  not  be  allowed  to  enter 


REGULATIONS. 

his  hotel  for  the  purpose  of  soliciting  patronage  for  their  business  from 
his  agents,  is  a  reasonable  one,  and  after  notice  to  desist,  a  person  vio- 
lating it  may  be  lawfully  expelled  from  his  house,  if  excessive  force 
be  not  used  in  ejecting  him:  Commonwealth  v.  Power,  7  Met.  600 
[41  Am.  Dec.  465];  Harris  v.  Stevens,  31  Vt.  79  [73  Am.  Dec.  31 
See  also  Grizwald  v.  Webb,  reported  in  41  Alb.  L.  J.  351,  Ft.  I.,  Nov. 
1889;  Old  Colony  R.  R.  Co.  v.  Tripp,  147  Mass.  35  [9  Am.  St  Rep.' 
661]  [894]. 

4.  An  innkeeper  has  unquestionably  the  right  to  establish  a  news- 
stand or  a  barber-shop  in  his  hotel,  and  to  exclude  persons  who  come 
for  the  purpose  of  vending  newspapers  or  books,  or  of  soliciting  emplo 
ment  as  barbers,  and  in  order  to  render  his  business  more  lucrative,  he 
may  establish  a  laundry  or  livery-stable  in  connection  with  his  hotel, 
or  contract  with  the  proprietor  of  a  livery-stable  in  the  vicinity  to  seci, 
for  the  latter,  as  far  as  he  legitimately  can,  the  patronage  of  his  gue 
in  that  line  for  a  per  centum  of  the  proceeds  or  profits  derived  by  sudi 
owner  of  vehicles  and  horses  from  dealing  with  the  patrons  of  the  public 
house.     After  concluding  such  contract,  the  innkeeper  may  make,  am! 
after  personal  notice  to  violaters  enforce,  a  rule  excluding  from   I 
hotel  the  agents  and  representatives  of  other  livery-stables  who  enter 
to  solicit  the  patronage  of  his  guests;   and  where  one  has  persisted  in 
visiting  the  hotel  for  that  purpose,  after  notice  to  desist,  the  proprietor 
may  use  sufficient  force  to  expel  him  if  he  refuses  to  leave  when   re- 
quested, and  may  eject  him  even  though  on  a  particular  occasion  he 
may  have  entered  for  a  lawful  purpose,  if  he  does  not  disclose  his  true 
intent  when  requested  to  leave,  or  whatever  may  have  been  his  purpo 
in  entering,  if  he  in  fact  has  engaged  in  soliciting  the  patronage  of  the 
guests :    Barney  ».  Oyster  Bay,  etc.  Steamboat  Co.,  67  N.  Y.  302  ';.' "> 
Am.  Rep.  115];   Jencks  v.  Coleman,  2  Sum.  224  [891]  ;   Harris  v.  S 
vens,  31  Vt.  79  [73  Am.  Dec.  337] ;   Angell  on  Corporations. 

8.  The  defendant,  as  manager  of  the  hotel,  could  make  a  valid  con- 
tract for  a  valuable  consideration  with  Sevier  to  give  him  the  exclusive 
privilege  of  remaining  in  the  house  and  soliciting  patronage  from  the 
guests  in  any  business  that  grew  out  of  providing  for  the  comfort  or 
pleasure  of  the  patrons  of  the  house.  The  proprietors  of  the  public 
house  might  legitimately  share  in  the  profits  of  any  such  incidental 
business,  as  furnishing  carriages,  buggies,  or  horses  to  the  patrons,  and 
for  that  purpose  had  as  full  right  to  close  their  house  against  one  who 
attempted  to  injure  the  business  in  which  they  had  such  interest.  a> 
the  owner  of  a  private  house  would  have  had,  and  this  view  of  the  ca 
is  consistent  with  the  doctrine  enunciated  in  Markham  v.  Brown,  8 
N.  H.  523  [31  Am.  Dec.  209]  [245].  There  was  no  evidence  tending  to 
show  that  Chambers  had  actual  permission  from  the  proprietors  to 
approach  the  inmates  of  the  hotel  on  the  subject  of  patronizing  him. 
nor  that  they  had  actual  knowledge  of  the  fact  that  he  had  continued 


254  INNKEEPERS. 

his  solicitations  after  receiving  a  similar  notice  to  that  sent  to  the  pros- 
ecutor. The  fact  that  he  was  overlooked  or  passively  allowed  to 
remain  in  the  hotel  (it  may  be,  under  the  impression  on  the  part  of  the 
defendant  that  he  had  desisted  from  his  objectionable  practices)  cannot, 
in  any  view  of  the  law,  work  a  forfeiture  of  the  right  to  enforce  a  reason- 
able regulation  made  to  protect  their  legitimate  business  from  injury. 
If,  therefore,  a  permit  on  the  part  of  the  defendant  to  Chambers  to 
"drum"  gratuitously  in  the  house  would  at  once  have  opened  his  doors 
to  all  of  the  competitors  of  the  latter  (a  proposition  that  we  are  not 
prepared  to  admit),  the  defendant  did  not,  so  far  as  the  testimony  dis- 
closes the  facts,  speak  to  him  on  the  subject,  and  the  soundness  of  the 
doctrine  that,  without  interfering  with  the  legal  rights  of  the  guests, 
the  proprietor  of  a  hotel  is  prohibited  by  the  organic  law  from  granting 
such  exclusive  privileges  to  any  individual  as  to  the  use  or  occupancy  of 
his  premises,  as  any  other  owner  of  land  may  extend,  is  not  drawn  in 
question. 

We  therefore  sustain  the  second  and  third  assignments  of  error.  His 
honor  erred,  for  the  reasons  given,  in  instructing  the  jury  that  the  guilt 
of  the  defendant  depended  upon  the  question  whether  he  permitted 
Chambers  or  Sevier  to  solicit  custom  in  the  house.  He  had  a  lawful 
right  to  discriminate,  for  a  consideration,  in  favor  of  Sevier,  while  it 
does  not  appear  from  the  evidence  that  he  granted  any  exclusive  privi- 
leges to  Chambers. 

We  hold  that  the  regulation  was  such  a  one  as  an  innkeeper  had  the 
power  to  make,  and  must  not  be  understood  as  approving  the  idea  that 
the  sanction  of  the  municipal  authorities  could  impart  validity  to  it, 
if  it  were  not  reasonable  in  itself,  and  within  the  powers  which  the  law 
gives  to  proprietors  of  public  houses  in  order  that  they  may  guard  their 
own  rights  and  protect  their  patrons  from  annoyance. 

For  the  reasons  given,  the  defendant  is  entitled  to  a  new  trial. 


6.    LIEN. 

COOK   v.   KANE. 

13  Oreg.  482;   11  Pac.  R.  226;   57  Am.  R.  28.     1886. 

Lord,  J.  This  suit  was  instituted  by  the  plaintiff,  as  an  innkeeper, 
to  enforce  a  lien  against  a  piano,  put  in  his  possession  by  the  defendant 
as  his  guest,  for  a  debt  due  for  lodging  and  entertainment.  By  the 
facts  stipulated,  it  is  admitted  that  the  relation  of  innkeeper  and  guest 
existed  between  the  plaintiff  and  defendant  when  the  plaintiff,  at  the 


LIEN. 


request  of  the  defendant,  paid  the  freight  charges  on  the  piano,  ami 
took  it  into  his  custody;  that  the  piano  was  in  fact  the  property  of  a 
third  person,  who  had  consigned  it  to  the  defendant  to  sell  on  comm 
sion,  but  that  the  plaintiff  did  not  know  it  was  tin-  property  of  such 
third  person,  but  received  it  in  his  character  as  an  innkeeper  and 
the  property  of  his  guest.  Upon  this  state  of  facts,  we  arc  to  inquire 
whether  the  piano  is  chargeable  with  an  innkeeper's  lien  for  board  and 
lodging  furnished  his  guest. 

At  common  law,  the  liability  of  an  innkeeper  for  the  loss  of  the  goods 
of  his  guest  is  special  and  peculiar,  and  like  that  of  the  common  carrier, 
is  founded  on  grounds  of  public  policy.  It  must  not,  however,  be  con- 
founded with  that  of  a  common  carrier;  the  liabilities,  though  similar, 
are  distinct.  (Clark  v.  Burns,  US  Mass.  275  [347] ;  Schouler  on  Bail- 
ments, 259.)  Whatever  controversy  may  exist  in  the  judicial  mind  as 
to  the  true  measure  of  the  innkeeper's  responsibility,  it  cannot  be  denied 
that  his  liability  for  the  loss  of  the  goods  of  his  guest  is  extraordinary 
and  exceptional.  (Schouler  on  Bailments,  261,  and  notes;  Coggs  v. 
Bernard,  1  Smith's  Lead.  Cas.,  Am.  Notes,  401  [4].)  Compelled 
to  afford  entertainment  to  whomsoever  may  apply  and  behave  with 
decency,  the  law,  as  an  indemnity  for  the  extraordinary  liabilities  which 
it  imposes,  has  clothed  the  innkeeper  with  extraordinary  privileges. 
It  gives  him,  as  a  security  for  unpaid  charges,  a  lien  upon  the  property 
of  his  guest,  and  upon  the  goods  put  by  the  guest  into  his  possession. 
(Overton  on  Liens,  129.)  Nor  is  the  lien  confined  to  property  only 
owned  by  the  guest,  but  it  will  attach  to  the  property  of  third  persons 
for  whom  the  guest  is  bailee,  provided  only  he  received  the  property 
on  the  faith  of  the  innkeeping  relation.  (Schouler  on  Bailments,  292 ; 
Calye's  Case,  1  Smith's  Lead.  Cas.  247  [163];  Manning  r.  Hollenbeck, 
27  Wis.  202.)  But  the  lien  will  not  attach  if  the  innkeeper  knew  the 
property  taken  in  his  custody  was  not  owned  by  his  guest,  nor  had  any 
right  to  deposit  it  as  bailee  or  otherwise,  except  perhaps  some  proper 
charge  incurred  against  the  specific  chattel. 

InBroadwood  v.  Granara,  10  Exch.  417,  the  innkeeper  knew  that  the 
piano  sent  to  the  guest  did  not  belong  to  him,  and  did  not  receive  it  as 
part  of  the  guest's  goods ;  and  it  was  on  that  ground  alone  he  was  held 
not  entitled  to  his  lien.  But  in  Threfall  v.  Borwick,  L.  R.  7  Q.  B.  210, 
where  the  innkeeper  had  received  the  piano  as  part  of  the  goods  of  his 
guest,  it  was  held  he  had  a  lien  upon  it.  Miller,  J.,  said  :  "  When,  hav- 
ing accommodation,  he  has  received  the  guest  with  his  goods,  am!  there- 
by has  become  liable  for  their  safe  custody,  it  would  be  hard  if  he  was 
not  to  have  a  lien  upon  them.  And  under  such  circumstance-,  the 
lien  must  be  held  to  extend  to  goods  which  he  might  possibly  have 
refused  to  receive."  Lusk,  J.,  said  :  "I  am  of  the  same  opinion.  The 
innkeeper's  lien  is  not  restricted  to  such  things  as  a  traveling  gu< 
brings  with  him  in  journeying;  the  contrary  has  been  laid  down  long 
ago.     It  extends  to  all  goods  the  guest  brings  with  him  and  the  innkeeper 


256  INNKEEPERS. 

receives  as  his.  If  he  has  this  lien  as  against  the  guest,  the  cases  have 
established  beyond  all  doubt  that  he  has  the  same  right  as  against  the 
real  owner  of  the  article,  if  it  has  been  brought  to  the  inn  by  the  guest 
as  owner."  To  the  same  effect,  Quain,  J.,  said  :  "  There  is  no  authority 
for  the  proposition  that  the  lien  of  the  innkeeper  only  extends  to  goods 
which  a  traveler  may  be  ordinarily  expected  to  bring  with  him.  .  .  . 
The  liability,  as  shown  by  the  old  cases,  extends  to  all  things  brought 
to  the  inn  as  the  property  of  the  guest  and  so  received,  even  a  chest  of 
charters  or  obligations  ;  and  why  not  a  pianoforte  ?  If,  therefore,  the 
innkeeper  be  liable  for  the  loss,  it  seems  to  follow  he  must  also  have  a 
lien  upon  them.  And  if  he  has  a  lien  upon  them  as  against  the  guest, 
the  two  cases  cited  (and  there  are  more)  show  that  if  the  thing  be 
brought  by  the  guest  as  owner,  and  the  landlord  takes  it  in  thinking 
it  is  the  guest's  own,  he  has  the  same  rights  against  the  stranger,  the 
real  owner,  as  against  the  guest."  Upon  appeal  from  the  decision  of 
this  case,  in  Threfall  v.  Borwick,  L.  R.  10  Q.  B.  210,  it  was  held,  affirm- 
ing the  decision,  that  whether  the  defendant,  as  innkeeper,  was  bound 
to  take  in  the  piano  or  not,  having  done  so,  he  had  a  lien  upon  it.  Al- 
though there  are  certain  dicta  not  necessary  to  the  decision  in  Broadwood 
v.  Granara,  10  Exch.  417,  to  the  effect  that  the  innkeeper  was  not  bound 
to  receive  the  piano,  yet  the  real  ground  of  the  decision  was  based  on 
the  fact  that  the  innkeeper  knew  that  the  piano  sent  to  his  guest  was 
the  property  of  a  third  person,  and  did  not,  therefore,  receive  it  as  part 
of  his  guest's  goods,  that  the  right  to  subject  the  piano  to  his  lien  was 
denied  ;  but  e  converso,  if  he  had  not  known  the  piano  was  the  property 
of  a  third  person,  and  had  received  it  as  the  property  of  his  guest,  would 
not  his  lien  have  attached  ?  It  is  not  material  whether  the  innkeeper  is 
bound  to  receive  such  property,  or  not,  although  it  is  said  the  liability 
may  be  well  extended,  according  to  the  advanced  usages  of  society; 
yet  if  he  does  receive  as  the  property  of  his  guest,  and  thereby  becomes 
liable  for  it,  he  must  be  entitled  to  his  lien.  (Threfall  v.  Borwick, 
supra.) 

Whenever,  by  virtue  of  the  relation  of  innkeeper  and  guest,  the  law 
imposes  this  extraordinary  responsibility  for  the  goods  of  the  guest, 
it  gives  the  innkeeper  a  corresponding  security  upon  the  goods  put  by 
the  guest  into  his  possession.  It  is  true  that  the  piano  was  shipped  to 
the  defendant  in  his  name,  but  he  brought  it  to  the  inn  as  his  property, 
or  at  least  it  was  brought  there  at  his  request  and  upon  his  order,  and 
put  in  the  custody  and  possession  of  the  plaintiff  as  the  property  of  his 
guest.  It  is  admitted  that  the  plaintiff  received  it  as  an  innkeeper, 
and  safely  kept  it  as  the  property  of  his  guest ;  nor  is  it  doubted  but 
what  he  would  have  been  liable  for  its  loss  ;  and  in  such  case,  it  is  diffi- 
cult to  perceive  upon  what  principle  of  law  or  justice  he  can  be  denied 
his  lien.     The  judgement  must  be  affirmed. 

[Dissenting  opinion  of  Thayer,  J.,  omitted.] 


LIEN. 


257 


SINGER  MANUFACTURING  CO.   v.   MILLER. 
52  Minn.  516  ;   55  N.  W.  R.  56  ;   38  Am.  St.  R.  568.     1893. 

Appeal  by  defendant,  Christopher  C.  Miller,  from  a  judgement  of  the 
District  Court  of  Hennepin  County,  Canty,  J.,  entered  September 
1892,  against  him  for  $46. 

Defendant  kept  a  public  inn  in  Minneapolis  called  the  Hotel  Grace. 
On  December  1,  1890,  Carl  Van  Raden,  his  wife  and  two  children 
were  received  by  defendant  as  boarders,  at  $15  per  week.  They  re- 
mained until  June  8,  1891.  Among  the  effects  which  they  brought  to 
the  inn  was  a  Singer  sewing  machine.  When  they  left,  Van  Raden 
owed  $240.50  balance  for  their  board.  The  defendant  detained  his 
goods,  claiming  a  lien  on  them  for  this  sum.  The  plaintiff,  the  Singer 
Manufacturing  Company,  then  appeared  and  demanded  the  machine, 
claiming  that  it  owned  it  and  had  leased  it  to  Van  Raden,  and  given 
him  an  option  to  buy  it  for  $25.  Defendant  had  not  before  heard  of 
this  claim,  but  supposed  Van  Raden  owned  the  machine.  He  refused 
to  give  it  up,  and  the  company  brought  this  action  in  a  Justice's  Court, 
and  at  the  trial  proved  its  ownership,  but  was  there  defeated.  Plain- 
tiff then  appealed  to  the  District  Court,  where  the  facts  were  admitted 
to  be  as  above  stated.  The  judgement  of  the  justice  was  reversed,  and 
judgement  entered  for  the  plaintiff,  on  the  ground  that  Van  Raden  was 
a  boarder  and  not  a  guest.     The  defendant  appeals  to  this  court. 

Vanderburgh,  J.  The  court  below  found  the  facts  as  stipulated 
by  the  parties  in  the  agreed  statement  of  facts,  as  submitted,  and,  as 
a  legal  conclusion,  that  the  plaintiff  was  entitled  to  judgement.  The 
defendant  claimed  an  innkeeper's  lien  upon  the  chattel  in  controversy, 
a  sewing  machine,  on  the  ground  that  it  was  brought  to  his  hotel,  by  a 
guest,  who,  it  now  appears,  had  contracted  to  purchase  the  same  of 
plaintiff,  but  the  title  had  not  passed,  though  the  possession  had  been 
delivered.  The  defendant,  however,  had  no  notice  of  the  plaintiff's 
claim,  and  insists  upon  his  lien  thereon,  with  other  goods  of  the  guest, 
for  the  amount  of  his  bill.     . 

The  plaintiff's  counsel  does  not  seriously  contest  the  proposition  that 
an  innkeeper  may  have  such  lien  on  goods  in  the  possession  of  his  guest 
infra  hospitium,  though  they  belong  to  a  third  person,  provided  the 
innkeeper  has  no  notice  of  that  fact. 

If  the  innkeeper's  liability  would  attach  in  case  the  sewing  machine 
were  lost  or  stolen,  it  would  seem  but  just  to  hold  that  his  lien  attaches 
whenever  there  is  a  corresponding  liability.  Schouler,  Bailm.,  ^  292; 
Manning  v.  Hollenbeck,  27  Wis.  202 ;  Threfall  v.  Borwiek,  L.  R.  7 
Q.  B.  711. 

The  respondent,  however,  claims  that  the  judgement  may  be  sup- 
ported on  the  ground  that  the  findings  of  fact  show  that  the  party  who 
brought  the  machine  to  defendant's  hotel  was  received  as  a  boarder, 


258  INNKEEPERS. 

and  remained  there  as  such,  and  not  as  a  traveler  or  guest.  The  evi- 
dence is  not  here,  and  so  the  question  is  not  whether  it  would  support 
a  finding  either  way,  but  whether  it  appears  from  the  stipulated  facts, 
which  are  adopted  as  the  findings  in  the  case,  that  he  was  a  guest.  To 
entitle  the  defendant  to  assert  his  innkeeper's  lien,  he  must  have 
received  the  property  as  the  goods  of  a  guest,  but  this  does  not  appear, 
and  there  is  no  such  finding.  It  appears  from  the  agreed  statement 
that  he  received  the  party,  his  wife,  and  two  children  as  boarders  and 
lodgers,  and  that  they  continued  to  board  and  lodge  with  him  for  about 
six  months  at  the  rate  of  $15  per  week,  and  that  is  all.  This  does  not 
affirmatively  establish  the  relation  of  guest  and  innkeeper,  so  as  to  sub- 
ject him  to  the  liability,  or  give  him  the  rights  incident  thereto. 
Error  must  appear. 
Judgement  affirmed. 


ROBINS  v.   GRAY. 

[1895]     2  Q.  B.  501  (C.  A.)     1895. 

Kay,  L.  J.  In  this  case  the  appellants  bring  their  action  for  the  deten- 
tion of  certain  sewing-machines  of  which  they  are  the  owners.  The 
defense  is,  "I  am  an  innkeeper ;  the  goods  in  question  came  into  my 
possession  as  the  goods  of  a  guest  at  my  inn,  and  I  have  a  lien  upon 
them  for  the  unpaid  bill  of  that  guest."  Replication,  "You  knew  that 
they  were  not  his  goods ;  you  had  notice  that  they  did  not  belong  to 
him,  but  that  they  belonged  to  us,  the  plaintiffs."  The  question  is, 
whether  that  is  a  good  replication.  The  facts  are :  The  appellants' 
traveller  went  to  the  inn  taking  some  sewing-machines  with  him,  and 
stayed  there.  Whilst  there  other  machines  were  sent  to  him  by  his 
employers,  and  those  machines  were  received  by  the  innkeeper,  and 
were  taken  care  of  by  him,  and  were  in  his  possession.  The  traveller 
left  without  paying  his  bill  for  board  and  lodging  at  the  inn.  I  agree 
with  Wills  J.  that  the  fact  that  some  of  the  machines  were  sent  to  the 
inn  after  the  traveller  had  gone  there  does  not  make  any  difference; 
because  the  innkeeper  accepted  them  as  he  had  accepted  the  machines 
originally  brought  to  the  inn  by  the  traveller  —  that  is,  as  the  goods 
of  the  traveller  —  I  do  not  mean  his  property,  because  the  innkeeper 
knew  that  they  were  the  property,  not  of  the  traveller,  but  of  his 
employers.  Now,  we  have  had  an  elaborate  argument,  and  various 
cases  have  been  cited  in  support  of  the  appellants'  case.  We  asked 
counsel  if  he  knew  of  a  single  case  in  which  it  had  been  held  that  an 
innkeeper  could  refuse  to  take  in  goods  of  an  ordinary  description 
brought  to  his  inn  by  a  commercial  traveller  for  sale  in  the  neighbor- 
hood. No  case  of  that  kind  has  been  cited  or  could  be  found,  although 
this  business  of  commercial  travellers  has  been  carried  on  for  a  very 


LIEN.  259 

great  length  of  time,  and  so  largely  that  there  is  scarcely  an  inn  in  Eng- 
land to  which  commercial  travellers  do  not  go  with  the  goods  of  their 
employers.  That  fact  is  suggestive  in  considering  the  contention  now- 
put  forward.  Further,  there  is  no  case  to  be  found  in  the  books  to 
shew  that  an  innkeeper  would  not  be  liable  in  the  ordinary  way  for  the 
loss  of  such  goods  so  brought  to  his  inn  by  a  commercial  traveller,  and 
so  taken  in  by  himself.  It  is,  therefore,  clear  that,  if  a  commercial 
traveller  goes  to  an  inn  with  goods  as  his  luggage  which  are  the  ordi- 
nary goods  for  sale  of  a  commercial  traveller,  and  the  innkeeper  takes 
him  and  his  goods  in,  the  innkeeper's  liability  in  respect  of  those  goods 
would  be  the  same  as  in  respect  of  the  personal  luggage  of  the  traveller. 
That  being  undoubted,  we  have  to  consider  whether  the  innkeeper's 
lien  is  defeated  by  reason  of  the  fact  that  when  he  took  the  goods  in  he 
knew,  or  had  had  notice,  that  they  were  the  property,  not  of  the  com- 
mercial traveller,  but  of  his  employers.  The  law  is  stated  in  Robinson 
v.  Walter,  3  Bulstr.  269,  by  Dodderidge  J.,  when  the  case  first  came  be- 
fore him,  thus :  "  This  is  a  common  inn,  and  the  defendant  a  common 
innkeeper,  and  this  his  retainer  here  is  grounded  upon  the  general  cus- 
tom of  the  land :  He  is  to  receive  all  guests  and  horses  that  come  to  his 
inn :  He  is  not  bound  to  examine  who  is  the  true  owner  of  the  horse 
brought  to  his  inn  ;  he  is  bound,  as  he  is  an  innkeeper,  to  receive  him, 
and  therefore  there  is  very  great  reason  for  him  to  retain  him,  until 
he  be  satisfied  for  his  meat  which  he  hath  eaten ;  and  that  the  true 
owner  of  the  horse  cannot  have  him  away,  until  he  have  satisfied  the 
innkeeper  for  his  meat."  That  is  a  distinct  statement  that  this  law  of 
an  innkeeper's  lien  is  founded  on  the  general  custom  of  the  land,  and 
that  an  innkeeper  is  not  bound  to  inquire  to  whom  the  goods  which  a 
guest  brings  to  the  inn  belong,  but  is  bound  to  receive  them. 

The  case  of  Broadwood  v.  Granara,  10  Ex.  417,  was  chiefly  relied  on 
for  the  appellants.  There  a  guest  staying  at  an  inn  went  to  a  shop- 
keeper in  the  town  and  hired  a  piano,  which  was  sent  to  him  at  the  inn 
for  the  purpose  of  playing  on  it  during  his  stay  there,  and  the  inn- 
keeper knew  that  the  piano  was  so  hired  for  that  purpose,  and  allowed 
it  to  be  brought  into  his  inn.  The  Court  held  that  he  had  no  lien  upon 
it;  but  the  ground  of  the  decision  is  stated  as  clearly  as  possible  in 
the  judgements.  Pollock  C.  B.  said  (at  p.  422) :  "This  is  the  case  of 
goods,  not  brought  to  the  inn  by  a  traveller  as  his  goods,  either  upon 
his  coming  to  or  whilst  staying  at  the  inn,  but  they  are  goods  furnished 
for  his  temporary  use  by  a  third  person,  and  known  by  the  innkeeper 
to  belong  to  that  third  person.  I  shall  not  inquire  whether,  if  the 
pianoforte  had  belonged  to  the  guest,  the  defendant  would  have  had  a 
lien  on  it.  It  is  not  necessary  to  decide  that  point,  for  the  case  finds 
that  it  was  known  to  the  defendant  that  the  pianoforte  was  not  the 
property  of  the  guest,  and  that  it  was  sent  to  him  for  a  special  purpo 
Under  these  circumstances,  I  am  clearly  of  opinion  that  the  defendant 
has  no  lien."     Parke  B.  (at  p.  423)  said :  "  It  is  not  necessary  to  advert 


260  INNKEEPERS. 

to  the  decisions  on  the  subject  of  an  innkeeper's  lien,  because  this  is  not 
the  case  of  goods  brought  by  a  guest  to  an  inn  in  that  sense  in  which 
the  innkeeper  has  a  lien  upon  them ;  but  it  is  the  case  of  goods  sent 
to  the  guest  for  a  particular  purpose,  and  known  by  the  innkeeper  to 
be  the  property  of  another  person.  It  therefore  seems  to  me  that  there 
is  no  pretence  for  saying  that  the  defendant  has  any  lien."  Then  fol- 
low words  which  are  sufficient  to  determine  the  case  before  us :  "  The 
principal  on  which  an  innkeeper's  lien  depends  is,  that  he  is  bound 
to  receive  travellers  and  the  goods  which  they  bring  with  them  to  the 
inn.  Then,  inasmuch  as  the  effect  of  such  lien  is  to  give  him  a  right  to 
keep  the  goods  of  one  person  for  the  debt  of  another,  the  lien  cannot  be 
claimed  except  in  respect  of  goods  which,  in  performance  of  his  duty 
to  the  public,  he  is  bound  to  receive."  An  analogous  case  to  that  was 
put  by  the  Master  of  the  Rolls  during  the  argument  of  the  present 
case.  Suppose  a  jeweller  in  the  town  sent,  with  the  knowledge  of  the 
innkeeper,  certain  jewels  to  a  guest  at  the  inn  on  approval,  and  allowed 
them  to  remain  in  the  inn  for  some  days  —  could  the  innkeeper  claim 
and  enforce  a  lien  upon  those  jewels  ?  I  should  think  he  could  not, 
because  they  were  sent  for  a  special  temporary  purpose,  and  the  inn- 
keeper knew  it ;  they  were,  therefore,  not  sent  as  the  goods  —  I  do  not 
mean  as  the  property  —  of  the  guest ;  they  were  not  goods  which  he 
was  likely  to  take  about  with  him  as  his  luggage.  But,  in  the  case 
before  us,  the  goods  were  received  into  the  inn  as  the  kind  of  goods  with 
which  the  guest  was  accustomed  to  travel  in  his  employment  as  a  com- 
mercial traveller ;  and  they  were  the  kind  of  goods  which  the  innkeeper 
would  be  bound  to  receive  without  inquiring  —  and  he  had  no  right  to 
inquire  —  to  whom  they  belonged.  If  we  were  to  hold  that  the  inn- 
keeper had  no  lien  upon  them  we  should  be  effecting  a  complete  revolu- 
tion in  the  custom  of  the  land,  in  accordance  with  which  an  innkeeper, 
who  receives  into  his  inn  commercial  travellers  with  the  goods  of  their 
employers  which  the  travellers  bring  there  in  the  course  of  their  busi- 
ness, is  accustomed  to  believe,  and  has  a  right  to  believe,  that  he  has  a 
lien  upon  those  goods. 

[Opinions  of  other  judges  omitted.] 

Appeal  dismissed. 


POSTAL    OFFICERS.  261 


VI.    POSTMASTERS   AND   CARRIERS   OF   MAIL. 

1.   POSTAL  OFFICERS. 

LANE  v.   COTTON. 
King's  Bench.     1  Ld.  Raym.  646.     1701. > 

The  plaintiff  brought  an  action  upon  his  case  against  the  defendant- 
as  post-master  general,  for  that,  that  a  letter  of  the  plaintiff's,  being 
delivered  into  the  said  office,  to  be  sent  by  the  post  from  London  to 
Worcester,  by  the  negligence  of  the  defendants  in  the  execution  of  their 
office,  was  opened  in  the  office,  and  divers  exchequer  bills  therein  in- 
closed were  taken  away,  ad  damnum,  &c.  Upon  not  guilty  pleaded, 
this  case  was  tried  before  Holt,  chief  justice  at  Guildhall  in  London, 
and  a  special  verdict  found  there. 

The  jury  found  the  act  of  12  Car.  2.  c.  35.  of  the  erection  of  the  gen- 
eral post-office,  and  that  a  general  post  was  established  pursuant  to  it 
between  London  and  Worcester:  they  find  the  act  of  1  Jac.  2.  c.  12. 
which  consolidates  the  estates  in  fee  and  in  tail  in  the  said  office  in  tin- 
king  ;  that  the  defendants  were  constituted  post-master  general  by 
letters  patent  of  the  king  that  now  is,  bearing  date  the  first  year  of  his 
reign  under  the  great  seal  of  England,  pursuant  to  the  said  act  of  12 
Car.  2.  c.  35.  and  that  by  the  said  patent  they  had  power  to  make 
deputies,  and  to  appoint  servants,  at  their  pleasure,  and  to  take  security 
of  them,  but  in  the  name,  and  to  the  use  of  the  king,  and  that  tin- 
defendants  should  obey  such  orders  as  they  should  receive  from  time  to 
time  from  the  king  under  the  sign  manual,  and  as  to  the  management 
of  the  revenue,  that  they  should  obey  the  orders  of  the  treasury,  and 
farther  that  the  king  granted  to  them,  that  they  should  not  be  char-'  - 
able,  to  account  for  the  mismanagement  or  default  of  their  inferior  offi- 
cers, but  only  for  their  own  voluntary  defaults ;  and  farther  the  king 
granted  to  them  the  salary  of  1500  I.  per  annum  out  of  the  profits  aris- 
ing out  of  the  office,  &c,  that  the  office  was  kept  in  London  ;  that  the 
plaintiff  being  possessed  of  eight  exchequer  bills,  enclosed  them  in  a 
'etter  directed  to  John  Jones,  at  Worcester,  and  delivered  it  t«»  Qnder- 
hill  Breese,  the  receiver  of  the  letters  at  the  post  office  ;  that  Breese  was 
appointed  by  the  defendants  to  receive  the  letters  at  the  office,  and  was 
removable  by  the  defendants,  but  received  his  salary  out  of  the  revenue 
of  the  said  office  by  the  hands  of  the  receiver-general ;    that  the  letter 

>  Also  reported  :   Comyn,  100  ;   5  Mod.  455  ;    11  Mod.  12;     12  Mod.  482  ;    1  Salk 
17  ;    Holt,  582 ;    Carth.  487. 


262  POSTMASTERS    AND    CARRIERS    OF   MAIL. 

was  opened  in  the  office  by  a  person  unknown,  and  the  bills  were  taken 
away  ;   et  si,  &c. 

This  case  was  argued  several  times  at  the  bar  by  Sir  Bartholomew 
Shower,  Mr.  Northey,  and  Mr.  Pratt,  for  the  plaintiff;  and  by  Ser- 
jeant Wright,  the  solicitor  general  Hawles,  and  the  attorney  general 
Trevor,  for  the  defendants.  And  now  this  term  the  judges  pronounced 
their  opinions  in  solemn  arguments,  viz.  Turton,  Powys,  and  Gould, 
justices,  that  the  judgment  ought  to  be  given  for  the  defendants :  and 
Holt  that  judgment  ought  to  be  for  the  plaintiff. 

Gould  justice  said,  that  at  first  he  was  of  opinion  with  the  plaintiff, 
and  now  upon  great  consideration  he  had  changed  it.  And  he  founded 
his  present  opinion  upon  consideration,  1.  Of  the  design  of  the  act,  and 
nature  of  the  office,  which  is  stiled  in  the  act  a  letter  office,  and  not 
regarded  there  as  an  absolute  securit}'  for  dispatches,  but  for  promotion 
of  trade  in  procuring  speedy  dispatches.  If  a  letter  had  barely  mis- 
carried, the  defendants  could  not  have  been  chargeable  for  it ;  for 
tho  there  is  property  in  a  letter,  yet  it  is  not  a  valuable  property,  for 
which  a  man  shall  recover  damages.  Letters  in  their  nature  are  missive, 
and  transient  from  hand  to  hand,  and  therefore  difficult,  if  not  impos- 
sible, to  be  secured.  And  therefore  he  denied  the  assertion  at  the  bar 
that  the  action  would  lie  for  the  miscarriage  of  a  letter,  like  Yelv.  63. 
where  it  is  held,  that  the  value  of  the  bond  is  that  of  the  debt,  not  of 
the  wax  and  paper.  Which  determines  this  case,  because  the  ex- 
chequer bills  being  inclosed  in  a  letter  (though  they  are  bills  of  credit,) 
yet  are  estimable  only  as  a  letter.  For  whatsoever  is  carried  by  the 
post,  has  the  denomination  of  a  letter. 

2.  If  anything  can  support  this  action,  it  must  be  a  contract  expressed 
or  implied  ;  but  here  is  neither  the  one  nor  the  other.  The  security  of 
the  dispatches  depends  upon  the  credit  of  the  office,  as  founded  upon 
the  act.  Breese  is  as  much  an  officer  as  the  defendants,  but  they  are 
more  general  officers.  But  Breese  is  the  king's  officer,  and  if  there  is 
any  contract,  it  is  between  the  plaintiff  and  Breese ;  which  appears  by 
the  act,  which  appoints  several  acts  for  all,  and  puts  confidence  in  all. 
And  therefore  they  resemble  a  community  of  officers  acting  in  several 
trust ;  and  every  one  shall  answer  for  himself,  not  one  for  the  act  of  an- 
other ;  as  in  case  of  a  dean  and  chapter,  1  Edw.  5. 5.  a.  If  the  defendants 
had  died,  yet  Breese  would  have  continued  officer ;  and  therefore  Breese 
lias  a  charge  and  trust  of  himself,  and  is  not  a  deputy  to  the  defendants. 

3.  This  office  is  founded  in  government,  and  reposed  in  the  king ; 
and  it  cannot  be  answerable  for  defaults,  but  the  remedy  is,  upon 
application  to  the  king  to  procure  the  officer  to  be  turned  out.  Dier, 
238.  In  the  act,  par.  10.  and  15.  penalties  are  imposed  upon  the  post- 
master general  for  default  in  his  office,  so  that  the  parliament  has  pro- 
vided punishment,  and  did  not  intend,  that  he  should  be  liable  to 
actions.  In  par.  7.  the  act  appoints  the  delivery  of  letters,  &c.  brought 
by  masters  of  ships,  &c.  from  beyond  the  sea  to  the  deputies  of  the 


POSTAL    OFFICERS. 

post-master;  which  shews  that  the  act  did  not  intend,  to  charge  the 
post-master  general.     And  the  inconvenience  recited  to  have  happened 
before  by  miscarriage  of  letters,  par.  6.  seems  to  shew,  that  no  action  !. 
for  the  miscarriage  of  a  letter;  and  then  this  act  did  not  design  to  give 
a  greater  security  by  any  other  means  than  by  alteration  of  the  method. 

4.  It  is  inconsistent  with  the  nature  of  the  thing,  that  the  post-master 
general  should  be  liable,  because  they  could  not  give  caution  of  the 
receipt  of  a  letter  to  be  sent  by  the  post,  as  the  muster  of  a  ship,  inn- 
keeper, or  carrier,  may  of  the  receipt  of  goods.  Besides,  that  this  office 
is  so  extensive,  and  requires  such  a  number  of  servants,  &c.  speed  in 
conveyance,  journeys  by  day  and  night,  when  there  is  no  guard  in  the 
country  ;  and  therefore  it  resembles  the  case  of  piracy,  which  is  damnum 
fatale.  4  Co.  84.  Robbery  a  good  plea  for  a  factor,  because  he  is 
obliged  to  expose  the  goods  to  sale,  and  hath  them  not  in  safe  custody, 
as  a  bailee  hath.  An  innkeeper  shall  not  answer  for  a  horse  of  a  guesl 
put  to  grass  by  his  order  for  the  same  reason.  Plowd.  308.  b,  gives  the 
reason,  why  a  parol  promise  shall  not  bind  without  consideration,  be- 
cause it  passed  lightly  from  a  man  without  deliberation.  So  here,  all 
is  done  in  a  hurry,  and  then  a  letter  may  easily  be  taken  away  and  the 
plaintiff  is  no  stranger  to  the  difficulties. 

5.  Objection.  1  Vent.  190.  238.  Answer.  The  reasons  of  the 
said  case  do  not  hold  here.  For  here  the  defendants  have  only  a  salar 
for  executing  of  part  of  the  office.  It  is  the  recompense  that  binds  the 
contract.  Now  that  is  properly,  where  it  is  variable  according  to  the 
hazard ;  but  here  the  reward  is  settled,  and  so  small  that  it  is  not  pro- 
portionable to  the  hazard.  As  to  the  second  reason  given  there,  that 
the  master  is  an  officer;  that  is  not  the  only  reason,  though  the  action 
would  not  lie,  if  he  was  a  servant.  3.  The  post-master  general  cannot 
give  caution  for  the  receipt  of  a  letter. 

6.  The  trust  is  only  to  carry  letters.  And  therefore  Breese  having 
received  exchequer  bills  which  are  treasure,  Breese  has  exceeded  his 
authority  (admitting  that  the  defendants  were  chargeable  by  the  act 
of  Breese)  and  therefore  the  defendants  are  not  liable.  9  H.  6.  53.  b. 
Cro.  Jac.  468.     Doct.  &  Stud.  137.     F.  N.  B.  71  /. 

7.  If  this  action  lay,  it  would  be  of  very  mischievous  consequence, 
because  it  would  expose  the  defendants  to  all  the  frauds  of  the  mer- 
chants men.  As  a  man  might  rob  the  mail  of  that  which  he  himself 
put  into  a  letter,  and  afterwards  bring  an  action  and  recover  it,  &c. 
And  many  of  the  same  reasons  were  agreed  by  the  other  two  judg 
who  argued  for  the  defendants. 

Powys  justice  agreed,  that  if  such  an  office  had  erected  at  common 
law  by  a  private  man  for  gain,  an  action  would  have  lain  at  common  law 
against  him  for  a  miscarriage.     Hob.  17.  Cro.  Jac.  330.  1  Sid.  36. 

He  differed  from  Gould  justice  as  to  the  matter  of  exchequer  bills; 
for  he  held,  that  they  were  not  treasure,  but  bare  bills  of  credit ;  and 
that  the  word  packets  in  the  act  was  general,  and  could  not  be  confined 


264  POSTMASTERS    AND    CARRIERS    OF    MAIL. 

to  any  particular  sort  of  things  more  than  another.     And  therefore 
jewels  (by  him)  might  be  sent  by  the  post  in  packets. 

3.  He  observed,  that  the  parliament  in  assessing  the  price  had  regard 
only  to  the  size  or  weight,  and  not  to  the  value,  as  how  many  sheets  or 
ounces ;  which  argues,  that  the  parliament  did  not  intend  that  the 
postmaster-general  should  be  answerable  for  them  if  they  were  lost. 

4.  He  held,  that  an  action  would  lie  against  Underhill  Breese,  and 
therefore  the  plaintiff  is  not  without  remedy. 

5.  The  express  words  of  the  patent  are,  that  the  defendants  shall 
not  answer  for  the  default  of  the  inferior  officers. 

6.  The  defendants  have  not  the  power  of  the  management  of  the 
office  according  to  their  discretion,  are  but  subject  to  the  control  of  the 
king  and  the  treasury.  And  because  the  inferior  officers  are  servants 
of  the  king,  and  not  of  the  defendants,  their  wages  being  paid  to  them 
out  of  the  revenue  of  the  post-office,  and  the  security  taken  of  them  in 
the  name  of  the  king ;  and  therefore  it  is  unreasonable,  that  the  defend- 
ants should  be  answerable  for  the  acts  of  the  inferior  officers.  But 
it  would  have  been  otherwise  (by  him)  if  the  office  had  been  farmed. 

Turton  justice  added,  that  this  office  was  not  designed  for  the 
conveyance  of  things  of  value,  and  therefore  it  would  not  be  material, 
whether  exchequer  bills  were  treasure  or  not,  if  they  were  valuable. 

2.  Exchequer  bills  were  newly  invented,  and  not  known  at  the 
time  of  the  making  of  the  act,  and  therefore  could  not  be  intended  to 
be  within  it. 

3.  He  cited  a  record  out  of  Molloy,  24  Ed.  3,  n.  45.  that  the  master 
may  reimburse  himself  out  of  the  wages  of  the  mariners,  if  the  loss 
happened  by  their  negligence ;  which  would  distinguish  the  case  of  the 
master  of  a  ship  from  this  of  the  postmaster-general. 

4.  He  cited  the  case  of  Herbert  v.  Pagett,  Raym.  53.  1  Sid.  77.  where 
it  was  held,  that  an  action  would  not  lie  against  the  custos  brevium,  for 
so  negligently  keeping  of  the  records,  that  a  particular  record  was  lost ; 
because  other  clerks  beside  his  had  access  to  the  office.  And  here 
there  are  many  persons  who  have  access  to  the  post-office.  And  for 
these  reasons  these  three  judges  held,  that  judgment  ought  to  be 
entered  for  the  defendants. 

Holt  chief  justice  e  contra  argued,  that  judgment  ought  to  be  given 
for  the  plaintiff.  And  he  said,  that  he  would  not  make  it  any  part  of 
the  question,  if  a  letter  was  broke  open  upon  the  road,  whether  the  post- 
master-general should  be  chargeable  for  it ;  but  he  would  confine 
himself  to  the  present  question,  where  a  letter  was  delivered  at  the  office 
to  the  proper  officer  appointed  to  receive  it,  and  there  lost,  whether  in 
such  case  the  post-master  general  shall  be  liable,  and  he  held,  that  he 
should,  for  these  reasons. 

1.  Because  the  post-master  is  by  this  act  intrusted  with  the  interest 
and  property  of  the  subject,  to  the  end  that  no  damage  may  accrue 
to  him ;   which  is  implied  by  the  making  him  an  officer.     The  act  ap- 


POSTAL    OFflCERS.  265 

points  one  general  letter  office  to  be  erected  in  London,  and  the  care 

thereof  is  committed  to  the  post-master  general ;  who,  his  deputies  and 

servants,  ought  to  have  the  management  solely  of  the*  post-office.     So 

that  all  the  persons  concerned  are  as  his  deputies.     And  by  the  nature 

of  the  trust  he  ought  safely  to  keep  all  letters  there  at  his  peril  in  his 

custody.     This  case  does  not  differ  from  the  case  of  the  marshal  of  the 

king's  bench  or  warden  of  the  Fleet,  who  are  obliged  safely  to  keep  the 

prisoners  at  their  peril  and  it  is  no  plea  for  them,  that  traitors  broke  the 

prison  against  their  will.     33  H.  6.  1.     And  the  law  was  so  at  common 

law  in  case  of  damages  recovered  in  trespass  quare  vi  et  armis,  and  when 

the  statute  25  Ed.  3.  c.  17.  made  the  body  liable  to  execution  for  debt, 

the  gaoler  ought  to  keep  such,  as  safely  as  defendants  condemned  for 

damages  in  trespass  vi  et  armis.     The  same  law,  if  goods  levied  upon 

a  levari  facias  (which  was  the  only  execution  before  the  statute  gave  a 

fieri  facias)  in  execution  were  rescued  from  the  sheriff,  he  was  liable 

to  an  action.     The  same  law  of  a  man  in  execution  upon  the  statute 

of  13  Ed.  1.  st.  3.  de  mercatoribus .     The  same  law,  if  upon  an  extendi 

facias  upon  a  statute  merchant  the  goods  of  the  conusor  taken  by  the 

sheriff  were  rescued  from  him.     And  there  is  no  difference  between 

this  case  of  the  post-master  general,  and  the  gaoler,  sheriff,  &c.  for  he 

ought  safely  to  keep  the  letters  delivered  to  him,  as  the  others  ought 

safely  to  keep  their  prisoners,  or  goods  taken  in  execution. 

2.  The  subject  ought  to  pay  a  premium  for  the  carriage,  to  him  who 
makes  it  his  employment.  And  when  a  man  takes  an  employment  upon 
him,  to  receive  the  goods  of  the  subjects,  and  receives  a  premium  for 
it,  that  is  sufficient  to  charge  him  to  answer  the  loss  at  all  adventures, 
for  such  losses  as  happen  within  the  realm.  Cro.  Jac.  188.  Hob.  17. 
Objection  by  Gould  justice.  That  this  office  is  founded  in  government. 
Answer.  If  he  means,  that  it  is  founded  by  the  law ;  he  could  not 
agree  his  inference,  because  it  is  only  founded  by  a  different  sort  of  law, 
viz.  the  one  by  common  law,  the  other  by  statute  law,  which  cannot 
make  a  difference.  And  he  did  not  see  in  what  sort  of  government  it 
was  otherwise  founded,  but  only  that  a  trust  is  given  for  the  benefit  of 
the  subject. 

Objection  by  Gould  justice.  That  such  charge  ought  to  be  by  some 
sort  of  contract. 

Answer.  He  denied  that  any  contract  was  necessary,  to  charge  the 
defendants ;  but  it  is  like  the  cases,  where  officers  by  course  of  law 
receive  goods  for  the  benefit  of  others,  they  are  obliged  to  keep  them 
safely  by  them,  so  that  they  may  have  the  benefit  of  them. 

Objection.  The  defendants  received  no  premium  from  the  plaintiff. 
Answer.  The  plaintiff  gives  a  premium,  which  intitles  him  to  a 
remedy ;  and  against  whom  shall  he  have  it,  if  not  against  the  public 
officer,  against  the  post-master  general,  by  whose  negligence  he  suffers. 
2.  The  defendants  received  a  premium,  viz.  a  salary  of  1500  /.  per  annum 
('which  is  a  sufficient  reward)  paid  out  of  the  profits  of  the  office.     And 


266  POSTMASTERS    AND    CARRIERS    OF    MAIL. 

therefore  this  case  is  not  distinguishable  from  the  case  of  Mors  v.  Slue, 
1  Ventr.  190.  238.  Raym.  220.  [402]  in  which  case  the  objection  was, 
that  the  master  'of  the  ship  did  not  receive  the  freight  to  his  own  use ; 
but  yet  adjudged,  that  he  was  liable  for  the  goods  of  which  the  ship 
was  robbed  in  the  river :  and  the  reasons  given  were,  1.  because  he  was 
an  officer  known ;  2.  because  he  received  his  salary  out  of  that  which 
was  paid  for  freight ;   both  which  reasons  hold  in  this  case. 

Objection.  The  master  of  the  ship  might  take  caution,  &c.  the 
postmaster-general  cannot. 

Answer.  He  did  not  know  how  the  master  of  the  ship  could  take 
caution,  &c.  It  was  said  in  the  case  of  Mors  v.  Slue,  that  if  a  man  came 
to  lade  goods  at  an  unseasonable  time,  he  was  not  obliged  to  take  them 
in,  as  before  he  was  ready  to  sail.  But  if  he  takes  them  in  before,  and 
they  are  lost,  he  will  be  liable  to  an  action.  So  a  common  carrier  may 
refuse  to  admit  goods  into  his  warehouse,  before  he  is  ready  to  take  his 
journey;  but  yet  neither  the  one  nor  the  other  can  refuse  to  do  the 
duty  incumbent  upon  them  by  virtue  of  their  public  employment. 

3.  This  case  is  within  the  reason  and  equity  upon  which  the  cases 
are  founded,  in  which  men  are  chargeable  for  negligent  keeping ;  and 
this  is  the  reason,  that  if  they  should  not  be  charged  without  assigning 
a  particular  neglect,  they  might  defraud  any  man,  as  he  would  not  be 
able  to  prove  it ;  and  that  is  the  reason  of  the  cases  of  carriers,  &c. 
And  this  reason  is  given  in  Justinian,  lib.  4.  tit.  5.  Minsinger.  comment, 
fol.  5617.  Such  matter  is  transacted  among  a  multitude  of  people  and 
therefore  no  particular  of  them  can  be  charged ;  and  therefore  the 
officer  ought  to  be  charged,  who  chuses  such  inferior  officers.  The  case 
of  Mors  v.  Slue  was  harder,  because  there  the  servants  were  overcome 
by  a  superior  force. 

Objection.  The  common  carrier  may  sue  the  hundred,  the  post- 
master general  cannot  sue  any  body. 

Answer.  That  is  no  reason,  because  a  carrier  was  chargeable  be- 
fore the  statute  of  Winton,  at  which  time  he  could  not  sue  the  hun- 
dred. Besides,  that  he  is  liable,  where  he  has  no  remedy  against  the 
hundred ;  as  for  goods  lost  out  of  his  warehouse,  or  out  of  his  waggon 
in  the  yard. 

Objection.  The  innkeeper  is  only  chargeable  for  goods  in  his  custody 
within  his  inn,  and  not  for  a  horse  put  to  grass  and  therefore  it  differs 
from  this  case. 

Answer.  Here  the  letter  was  within  the  walls  of  the  post-house. 
But  the  case  of  the  innkeeper  is  stronger,  because  he  is  obliged,  while 
he  has  room,  to  let  in  all  travellers.  But  e  contra  of  the  postmaster- 
general,  who  may  chuse  his  deputies  and  servants. 

Objection.      The  innkeeper  has  people  up  all  the  night  in  the  inn. 

Answer.      And  the  postmaster-general  also  in  the  post-office. 

Objection.  The  case  of  Sir  Henery  Herbert  and  Mr  Paget,  1  Sid. 
77.  Raym.  53. 


POSTAL   OFFICERS.  267 

Answer.  There  prima  facie  they  held  the  defendant  chargeable, 
but  afterwards  they  were  of  opinion  for  the  defendant,  that  he  was  not 
chargeable,  because  the  clerks  of  Mr  Henley  had  liberty  to  enter  into 
the  treasury  without  his  consent,  and  so  the  access  to  the  records  was 
not  confined  to  his  servants  only.  But  here  no  body  could  enter  into 
the  post-office  but  the  servants  of  the  defendants  only.  This  ease  did 
from  the  loss  of  a  letter  upon  the  road,  but  to  that  he  gave  no  opinion ; 
for  a  carrier  receives  goods,  safely  to  keep,  and  safely  to  carry  ;  but  the 
post-master  general  receives  the  letters,  safely  to  keep  and  send  ;  so  thai 
there  may  be  a  question,  whether  the  post-master  shall  be  chargeable, 
when  he  has  safely  sent  the  letters  out  of  the  office.  But  admit  that  he 
should  not  be  liable,  when  the  post-boy  is  robbed  upon  the  road  ;  yet 
it  will  not  follow,  that  he  is  not  chargeable  for  letters  taken  out  of  the 
office.  In  the  case  of  Morse  v.  Slue,  if  the  ship  had  been  at  sea,  the 
master  would  not  have  been  liable ;  yet  it  does  not  follow,  that  he  shall 
not  be  chargeable  for  a  loss  at  land.  If  a  man  comes  to  an  inn  and 
orders  the  innkeeper  to  put  his  horse  into  the  stable,  being  hot,  and 
to  let  him  cool,-  and  then  to  put  him  to  grass ;  because  the  innkeeper 
should  not  be  chargeable,  if  he  were  stole  after  he  is  put  to  grass,  it  does 
not  follow  from  thence  that  he  should  not  be  chargeable,  if  he  be  stole 
before  he  be  turned  to  grass,  whilst  he  is  in  the  stable. 

4.  It  is  the  duty  of  the  post-master  to  receive  exchequer  bills  and  to 
send  them  by  the  mail.  For  he  ought  to  receive  such  packets  as  are 
proper  to  be  sent  by  the  post ;   and  such  are  exchequer  bills. 

1.  If  a  man  takes  upon  him  a  public  employment,  he  is  bound  to 
serve  the  public  as  far  as  the  employment  extends ;  and  for  refusal  an 
action  lies,  as  against  a  farrier  refusing  to  shoe  a  horse,  against  an 
innkeeper  refusing  a  guest,  when  he  has  room,  against  a  carrier  refusing 
to  carry  goods,  when  he  has  convenience,  his  waggon  not  being  full.  He 
had  known  such  action  brought,  and  a  recovery  upon  it,  and  never 
disputed.  So  an  action  will  lie  against  a  sheriff,  for  refusing  to  execute 
process.  The  same  reason  will  hold,  that  an  action  should  lie  against 
the  postmaster,  for  refusing  to  receive  a  letter,  &c. 

2.  Exchequer  bills  are  proper  to  be  sent  by  the  post.  The  act  does 
not  confine  it  to  any  specific  thing,  but  generally  of  packets.  It  ap- 
pears, that  the  act  intended  that  other  things  should  be  sent  by  the 
post,  as  well  as  letters.  By  the  words  of  the  act,  deeds  and  other  things. 
Also  exchequer  bills  are  light.  And  a  pearl  necklace  of  1000  /.  value 
may  be  sent  by  the  post. 

Objection.  Exchequer  bills  are  new  things  created  by  act  of  parlia- 
ment. 

Answer.  A  new  interest  created  by  a  subsequent  statute  will  be 
under  the  same  remedy  as  a  thing  in  esse  before  of  the  same  nature. 
And  one  may  as- well  say,  that  trover  or  trespass  will  not  lie  for  them, 
because  they  are  new  things.  Bills  of  exchange  might  have  been  sent 
by  the  post,  and  exchequer  bills  are  like  to  them.     A  bill  of  exchanj 


268  POSTMASTERS   AND    CARRIERS    OF    MAIL. 

payable  to  a  man  or  bearer  is  a  lawful  bill  of  exchange,  and  may  be 
sent  by  the  post,  as  well  as  one  payable  to  a  man  or  order. 

Objection.  That  the  post-master  will  not  be  chargeable  for  bills  of 
exchange  lost,  because  they  are  excepted  out  of  the  act,  that  nothing 
shall  be  paid  for  them. 

Answer.  That  the  letter  ought  to  be  intended  to  be  written  for  the 
sake  of  the  bill,  and  therefore  payment  of  the  letter  is  payment  for  the 
bill.  As  where  a  man  comes  to  an  inn,  he  shall  pay  nothing  for  the 
keeping  of  his  goods ;  yet  the  advantage  which  the  innkeeper  hath  by 
the  presence  of  the  guest,  makes  him  liable. 

3.  Exchequer  bills  are  not  excepted,  and  therefore  shall  pay  postage. 

4.  The  defendants  being  public  officers  are  chargeable,  though  they 
had  no  benefit ;  as  the  sheriff,  though  he  has  no  fees  for  suing  of  execu- 
tions. For  where  the  law  gives  a  man  custody  of  a  thing  virtutc  officii 
it  obliges  him  to  keep  it  safely.  And  therefore  upon  the  reason  of 
Southcote's  case,  4  Co.  83.  b.  Cro.  El.  8.  5.  pi.  4.  [3]  if  goods  are  delivered 
to  a  man  to  be  safely  kept,  and  he  accepts  them,  he  shall  be  chargeable 
if  they  are  lost.  An  officer  accepts  such  things  as  come  to  him  virtute 
officii  upon  this  trust,  and  therefore  he  shall  be  chargeable  for  them  if 
they  be  lost;  and  one  can  not  put  a  case  of  a  public  officer  to  the 
contrary.  The  opinion  in  4.  Co.  83  b.  Cro.  El.  815.  pi.  4.  of  a  general 
bailment  is  not  law ;  for  upon  a  general  bailment  the  bailee  ought  to 
keep  them  only  as  his  own. 

5.  Before  the  12  Car.  2  c.  35.  any  one  might  have  erected  a  post- 
office,  and  such  erector  had  been  liable  for  miscarriage ;  and  therefore 
this  post-master  is  liable  also ;  for  now  the  act  having  prohibited  the 
subjects  to  employ  any  other  but  this  post-master  general,  it  would  be 
hard  to  deprive  them  of  the  remedy  which  they  had  before. 

Objection.      The  plaintiff  has  a  remedy  against  Breese. 

Answer.  If  it  could  be  proved  that  Breese  took  out  the  exchequer 
bills,  he  agreed  that  it  was  so ;  likewise  any  stranger  that  took  them 
out  might  be  charged  as  a  tort  feasor ;  but  Breese  cannot  be  charged 
as  an  officer  for  neglect :  for  misfeasance  of  a  deputy  an  action  will  lie 
against  him,  but  that  is  not  qua  officer,  but  qua  tort  feasor.  And  accord- 
ing to  this  is  the  difference  between  a  negligent  and  a  voluntary  escape. 
A  gaoler  is  liable  to  an  action  for  the  latter,  but  not  for  the  former. 
This  office  is  manageable  only  by  them,  their  deputies  and  servants, 
and  what  is  done  by  a  deputy,  is  done  by  the  principal ;  and  reasonable, 
because  the  principal  may  remove  the  deputy  at  pleasure,  though  he 
puts  him  in  for  life,  for  it  is  contrary  to  the  nature  of  a  deputy,  not  to 
be  removeable.  Hob.  13.  Moor,  856.  A  deputy  may  forfeit  the  office 
of  the  principal ;  as  if  he  does  such  acts  as  would  be  a  forfeiture  in  the 
principal.     39  H.  6.  c.  34. 

Objection.     Dier,  238. 

Answer.  It  is  (by  him)  directly  contrary  to  the  purpose  for  which 
his  brother  Gould  cited  it. 


POSTAL    OFFICERS. 

Objection.     This  will  be  to  make  the  defendants  responsible    ! 
for  the  servants  of  the  deputies. 

Answer.  If  a  deputy  has  power  to  make  servants,  the  principal  will 
be  chargeable  for  their  misfeasance,  because  the  act  of  the  servant  is 
the  act  of  the  deputy,  and  the  act  of  the  deputy  is  the  act  of  the  princi- 
pal.    But  here  Breese  is  the  servant  of  the  defendants  themselves. 

Objection.      The  defendants  are  but  fellow  servants  with   Br<  • 
because  all  receive  their  salaries  from  the  king. 

Answer.  He  is  appointed  by  the  defendants,  and  is  their  servant, 
and  removeable  by  them,  though  they  do  not  pay  him  his  wages.  But 
then  suppose  that  Breese  is  not  a  servant  of  the  defendants,  then  it 
will  be  stronger  against  the  defendants,  for  then  Breese  will  be  as  a 
stranger,  and  then  they  will  be  the  rather  liable,  the  act  appointing  them 
to  manage  the  office  by  their  servants. 

Objection.      Powys  justice  compared  the  defendants  to  a  captain  of 
a  company;    and  he  shall  not  be  chargeable  for  the  cowardice  of  his 
soldiers,  no  more  shall  the  defendants  for  the  negligence  of  Bree 
admitting  him  to  be  a  servant. 

Answer.      If  A.  received  a  particular  damage  by  the  cowardice  of 
the  soldiers  of  a  captain,  he  shall  be  chargeable;   but  in  such  case  the 
prejudice  is  national.    But  the  master  of  a  ship  is  liable  for  the  negl* 
of  his  mariners. 

Objection.  The  act  did  not  intend  that  the  defendants  should  be 
chargeable. 

Answer.  He  was  of  a  contrary  opinion,  because  all  the  power  is 
placed  in  the  post-master  general.  And  when  a  statute  erects  a  new- 
office,  and  places  it  under  such  circumstances,  as  in  consequence  of 
law  make  the  officer  liable;  it  must  be  presumed  to  have  been  their 
intent,  that  he  shall  be  chargeable. 

2.  It  appears  by  the  words  of  the  act,  that  they  intended  that  the 
dispatches  should  be  safe. 

3.  It  appears  by  the  act,  that  it  was  the  judgment  of  the  parliament, 
that  they  were  liable  for  the  faults  of  the  deputy.  Par.  3.  It  is  provided 
that  the  post-masters  general,  and  their  deputies,  &c.  Then  par.  10. 
a  penalty  of  5  /.  is  imposed  upon  the  post-master,  if  there  be  a  failure  of 
furnishing  with  post-horses,  from  whence  it  appears,  that  the  parlia- 
ment looked  upon  the  fault  of  the  deputy  to  be  the  fault  of  the  post- 
master. 

Objection.      This  will  ruin  the  office. 

Answer.      It  will  make  them  more  careful. 

Objection.      This  will  encourage  frauds. 

Answer.     The  method  to  prevent  them  is  to  make  the  post-master 

liable. 

Objection.      The   plaintiff   might  have  sent  his  exchequer  lull- 
some  other  means. 

Answer.      That  will  not  excuse  the  defendants  ;  no  more  than  it  wil 


270  POSTMASTERS    AND    CARRIERS    OF    MAIL. 

be  an  excuse  to  an  innkeeper,  that  his  guest,  who  has  lost  his  goods, 
might  have  gone  to  another  inn. 

Objection.      The  'premium  limited  by  the  act  is  too  small. 

Answer.  The  defendants  have  accepted  the  office  upon  those 
terms. 

Objection.  The  patent  is,  that  they  shall  observe  the  orders  of  the 
king  under  the  sign  manual,  and  the  orders  of  the  treasury  concerning 
the  revenue. 

Answer.  The  observance  of  the  orders  of  the  treasury  will  not  inter- 
rupt their  care  of  the  letters  ;  and  if  a  prejudice  happen  by  observance 
of  the  king's  orders,  that  will  not  excuse ;  because  they  are  obliged  to 
observe  the  most  convenient  methods  for  the  execution  of  the  office 
according  to  the  directions  of  the  act,  and  the  patent  cannot  excuse 
them  in  any  neglect  of  that. 

Objection.  There  is  a  clause  in  the  patent,  that  the  post-masters 
shall  not  be  answerable  for  a  fault  in  their  deputy,  but  only  for  their 
own  act. 

Answer.  That  is  only  intended  of  imbezzlement  of  the  revenue  by 
their  deputies,  and  as  to  that  the  said  clause  will  excuse  them ;  but 
it  will  not  excuse  them  from  any  remedy  that  the  subject  hath  against 
them  for  this  benefit  by  the  law.  And  no  non-obstante  in  such  case 
will  avail,  nor  any  charter  of  exemption.  And  for  these  reasons  he  con- 
cluded, that  judgment  ought  to  be  given  for  the  plaintiff,  but  the  other 
three  judges  being  of  a  contrary  opinion,  judgment  was  given  for  the 
defendants.  But  however,  the  plaintiff  intending  to  bring  a  writ  of 
error  upon  the  said  judgment,  the  defendants  seeing  that,  paid  the 
money  to  the  plaintiff,  as  I  was  informed.1 


2.   CARRIERS  UNDER  CONTRACT. 

SAWYER  v.   CORSE. 

17  Gratt.  (Va.)  230;   94  Am.  D.  445.     1867. 

Joynes,  J.  The  judgment  in  this  case  was  rendered  against  Sawyer, 
who  was  defendant  in  the  court  below,  upon  a  case  agreed  by  the 
parties.  He  now  contends  that  the  judgment  must  be  reversed,  be- 
cause it  does  not  appear  from  the  record  that  he  had  filed  any  plea. 
But  this  objection  cannot  be  sustained.  A  case  may  be  submitted  to 
the  court  on  a  case  agreed  without  a  plea  as  well  as  with  one,  and  it  is 
sometimes  done  without  either  declaration  or  plea.     The  defect  of  plead- 

1  Accord:  Whitfield  v.  Lord  Le  Despencer,  2  Cowp.  754  (1778).  To  same  effect 
as  to  negligence  of  a  subordinate  in  the  postal  telegraph  service,  see  Bainbridge  v. 
Postmaster-General,  [1906]  1  K.  B.  178. 


CARRIERS    UNDER    CONTRACT.  271 

ings  is  cured  by  the  agreement.  When  there  is  a  declaration  and  no 
plea,  as  in  the  present  case,  the  plaintiff's  cause  of  action,  as  set  forth 
in  the  declaration,  is  submitted  to  the  court  without  reference  to  any 
particular  form  of  defence,  and  the  defendant  is  entitled  to  judgment, 
if  the  facts  stated  afford  him  a  defence  of  which  he  might  have  availed 
himself  under  any  form  of  pleading.  When  the  case  is  submitted  after 
an  issue  is  made  up,  the  decision  of  the  court  is  restricted  to  that  issue. 

Sawyer  was  contractor  writh  the  post  office  department  for  carrying 
mail  between  the  cities  of  Alexandria  and  Washington,  and  Fleming 
was  the  carrier  employed  by  him.  A  mail  bag  containing  a  letter  of 
Corse,  in  which  there  was  an  enclosure  of  bank  notes  belonging  to  him, 
was  delivered  to  Fleming  at  the  post  office  in  Alexandria  to  be  carried 
to  Washington,  and  was  lost  by  him  on  the  route  under  ciren instances 
which  need  not  be  stated.  This  is  an  action  on  the  case  brought  by 
Corse  against  Sawyer  to  recover  the  value  of  the  bank  notes.  The 
declaration  contains  three  counts.  The  third  which  alleges  that 
Fleming  was  not  competent  and  trustworthy,  and  seeks  to  charge  Saw- 
yer on  the  ground  that  he  had  appointed  an  unfit  person  as  carrier,  is 
not  sustained  by  the  facts  agreed,  and  may  therefore  be  laid  out  of  view. 
The  first  count  alleges  that  the  loss  of  the  letter  was  occasioned  by  neg- 
ligence and  want  of  care  on  the  part  of  Sawyer  himself. 

It  is  well  settled  that  a  public  officer,  or  other  person  who  takes 
upon  himself  a  public  employment,  is  liable  to  third  persons  in  an  action 
on  the  case,  for  any  injury  occasioned  by  his  own  personal  negligence  or 
default  in  the  discharge  of  his  duties.  So  that  if  the  facts  of  this  case 
establish  that  the  loss  of  the  letter  was  occasioned  by  the  negligence  or 
default  of  Sawyer  himself,  he  is  liable  even  though  he  should  be  con- 
sidered as  holding  the  position  of  a  public  officer  or  public  agent,  and 
whatever  may  be  the  legal  character  of  his  relation  to  Fleming.  2 
Kent,  610;  Story  on  Agency,  §§  320,  321 ;  Nowell  v.  Wright,  3  Allen's 
R.  166. 

The  second  count  alleges  that  the  loss  was  occasioned  by  the  negli- 
gence of  Fleming  as  the  agent  and  servant  of  Sawyer,  employed  by  him 
to  carry  the  mail  according  to  his  contract  with  the  post  office  depart- 
ment. And  here  again  it  is  clear,  that  if  Fleming  was  merely  the  pri- 
vate agent  and  servant  of  Sawyer,  Sawyer  is  liable  to  third  persons  for 
injury  occasioned  by  his  negligence  in  the  performance  of  his  duty, 
according  to  the  maxim  respondeat  superior.  And  it  is  equally  clear 
that  the  fact  that  Sawyer's  obligation  to  carry  the  mail  arose  under  a 
contract  with  the  government,  and  that  he  made  no  contract  with 
Corse,  is  no  answer  to  the  present  action,  which  is  not  founded  on  the 
contract,  but  on  the  breach  of  duty.  Winterbottom  v.  Wright,  10  Mees. 
&  Welsb.  109  ;  Burnett  v.  Lynch,  5  Barn.  &  Cres.  589  (1 2  Eng.  C.  L.  R. 
327) ;  Farrant  v.  Barnes,  11  Com.  B.  R.  X.  S.  553  (103  Eng.  ( '.  L  R.  i 
Marshall  v.  York  Railway  Co.,  11  Com.  B.  R.  655  (73  Eng.  C.  L.  R 

Sawyer  contends  however  that  Fleming  is  not  his  agent  or  servant, 


272  POSTMASTERS    AND    CARRIERS   OF   MAIL. 

but  the  agent  or  servant  of  the  government,  and  that  as  such  he  is  liable 
for  his  own  default.  The  leading  case  relied  upon  is  Lane  v.  Cotton 
&  al.  decided  in  the  year  1701,  and  reported  in  1  Ld.  Ray.  R.  646,  [261] 
and  in  several  other  books.  That  was  an  action  on  the  case  against 
Cotton  and  Frankland,  who  were  together  the  postmaster  general  of 
England,  to  recover  the  value  of  exchequer  bills  belonging  to  the  plain- 
tiff, which  were  abstracted  from  a  letter  deposited  by  him  in  the  London 
post  office  to  be  transmitted  by  post.  The  letter  was  delivered  at  the 
office  to  one  Breese  who  was  appointed  by  the  defendants  to  receive 
letters,  who  was  removable  by  them,  but  who  received  his  salary  from 
the  receiver  general  out  of  the  revenues  of  the  post  office.  In  the  opin- 
ion of  the  judges  it  was  assumed  that  the  bills  were  abstracted  by  Breese, 
though  it  was  found  by  the  special  verdict  that  they  were  abstracted 
by  a  person  unknown. 

Three  of  the  judges  held  that  the  defendants  were  not  liable.  With- 
out going  over  all  the  grounds  on  which  the  decision  was  placed,  it  will 
be  sufficient  for  the  present  purpose,  to  state  that  it  was  placed,  in  part, 
upon  the  ground,  that  the  post  office  establishment  was  an  instrument 
of  government,  established  for  public  convenience  under  the  manage- 
ment and  control  of  the  defendants  as  officers  of  the  government,  and 
that  Breese  was  himself  an  officer  under  the  government,  and  liable  as 
such  for  his  own  acts,  and  that  he  was  not  the  agent  or  servant  of  the 
defendants.  Lord  Holt  dissented,  but  he  only  differed  from  the  other 
judges  upon  the  point  whether  Breese  was  to  be  regarded  as  the  agent 
and  servant  of  the  defendants  or  not.     See  15  East,  392. 

The  doctrine  of  this  case  was  followed  by  Whitfield  v.  Le  Despencer, 
Cowp.  R.  754,  and  may  be  considered  as  well  established  in  England. 
The  same  doctrine  has  been  applied  to  the  case  of  a  deputy  or  local 
postmaster,  and  his  assistants  duly  appointed  and  qualified.  These, 
in  like  manner,  are  regarded  as  agents  and  servants  of  the  government, 
who  are  liable  for  their  own  acts  and  defaults,  and  not  as  agents  and 
servants  of  the  postmaster,  for  whose  acts  and  defaults  he  is  to  answer. 
Schroyer  v.  Lynch,  8  Watts'  R.  453 ;  Wiggins  v.  Hathaway,  6  Barb. 
S.  C.  R.  632  ;  Dunlop  v.  Munroe,  7  Cranch's  R.  242  ;  Bolan  v.  William- 
son, 1  Brevard's  R.  181. 

There  has  been  some  diversity  of  opinion  in  reference  to  this  class 
of  cases,  but  it  has  been  rather  as  to  the  application  of  the  principle  on 
which  they  proceed,  than  as  to  the  soundness  of  the  principle  itself. 
See  Franklin  v.  Low  &  al.  1  John.  R.  396;  Maxwell  v.  Mclivoy,  2 
Bibb's  R.  211;    Jones  on  Bailments,  109. 

Indeed,  the  principle  which  exempts  a  public  officer  from  liability  for 
the  acts  and  defaults  of  his  official  subordinates  appears  to  have  been 
long  recognized,  and  to  be  one  of  general  application.  Doctor  &  Stu- 
dent, Dialogue  2,  Chap.  42  ;  Nicholson  v.  Morrissey,  15  East's  R.  384  ; 
Viscount  Canterbury  v.  Attorney  General,  1  Phillips'  R.  306. 

The  doctrine  is  thus  stated  in  1  American  Leading  Cases  (3d  ed.), 


CARRIERS    UNDER    CONTRACT. 

621  :  "With  regard  to  the  responsibility  of  a  public  officer  for  the  mis- 
conduct or  negligence  of  those  employed  by  or  under  him,  the  distinc- 
tion generally  turns  upon  the  question  whether  the  persons  employed 
are  his  servants,  employed  voluntarily  or  privately  and  paid  by  him, 
and  responsible  to  him,  or  whether  they  are  his  official  subordinat< 
nominated  perhaps  by  him,  but  officers  of  the  government;  in  other 
words,  whether  the  situation  of  the  inferior  is  a  public  officer  or  private 
service.  In  the  former  case  the  official  superior  is  not  liable  for  the 
inferior's  acts ;   in  the  latter  he  is." 

The  exemption  of  public  officers  from  responsibility  for  the  acts  and 
defaults  of  those  employed  by  or  under  them  in  the  discharge  of  their 
public  duties,  is  allowed,  in  a  great  measure,  from  considerations  of 
public  policy.  From  like  considerations  it  has  been  extended  to  the 
case  of  persons  acting  in  the  capacity  of  public  agents,  engaged  in  the 
service  of  the  public,  and  acting  solely  for  the  public  benefit,  though  not 
strictly  filling  the  character  of  officers  or  agents  of  the  government. 
Hall  v.  Smith,  2  Bingh.  R.  156  (9  Eng.  C.  L.  R.  357),  Holliday  r.  Si 
Leonards,  Com.  B.  (N.  S.)  R.  192  (103  Eng.  C.  L.  R.  192). 

The  effort  has  been  made,  both  in  England  and  the  United  States, 
to  extend  the  application  of  this  principle  of  exemption  so  as  to  embrace 
every  case  of  a  municipal  corporation,  clothed  with  authority  or  charged 
with  a  duty  for  the  accomplishment  of  objects  of  a  public  nature  and 
for  the  public  benefit.  But  it  has  been  held  that  where  the  authority, 
though  for  the  accomplishment  of  objects  of  a  public  nature  and  for 
the  benefit  of  the  public,  is  one  from  the  exercise  of  which  the  corpora- 
tion derives  a  profit,  or  where  the  duty,  though  of  a  public  nature 
and  for  the  public  benefit,  may  fairly  be  presumed  to  have  been  en- 
joined upon  the  corporation  in  consideration  of  privileges  granted  to  and 
accepted  by  it,  the  exemption  does  not  apply.  And  the  reason  is  that, 
in  such  cases,  the  corporation  is  not  acting  merely  as  an  agent  of  the 
public  and  with  a  view  solely  to  the  public  benefit,  but  that  in  the 
former  it  is  pursuing  its  own  interest  and  profit,  and  in  the  latter  is  exe- 
cuting a  contract  for  which  it  has  received  a  consideration.  •  Scott  1 1. 
Mayor  &c.  of  Manchester,  2  Hurl.  &  Nor.  R.  204  ;  Weightman  v.  Cor- 
poration of  Washington,  1  Black's  R.  39. 

The  books  which  have  been  cited  show  the  grounds  upon  which  this 
sort  of  exemption  has  been  allowed,  and  the  extent  to  which  it  has  been 
generally  carried.  It  ought  not  to  be  extended  to  other  cases  that  do 
not  fall  clearly  within  the  same  reasons.  I  have  seen  no  case  in  Eng- 
land, and  none  in  this  country  except  two  hereafter  mentioned,  in  which 
such  exemption  has  been  allowed  to  a  person  undertaking  by  contract 
to  perform  work  or  render  service  for  the  government,  for  a  compensa- 
tion to  be  paid  to  him,  and  with  a  view  to  his  own  profit,  and  where  his 
subordinates  are  employed  and  paid  by  him,  and  liable  to  lie  dismissed 
at  his  pleasure.  Such  a  contractor  is  in  no  just  and  proper  sense,  an 
officer  of  the  government.     And  though  he  may  be  said  to  be,  in  a  err- 


274  POSTMASTERS    AND    CARRIERS    OF    MAIL. 

tain  sense,  an  agent  of  the  government,  because  he  is  engaged  in  work- 
ing for  the  government,  yet  the  laborers  and  others  whom  he  employs 
under  him,  in  the  execution  of  his  contract,  cannot  be  said  to  be  agents 
of  the  government,  which  does  not  know  them,  does  not  appoint 
them,  does  not  control  them,  does  not  pay  them,  and  has  nothing  to  do 
with  them.  The  cases  above  cited  from  2  Hurl.  &  Ndr.  and  1  Black 
show  that  he  is  not  such  a  public  agent  as  comes  within  the  principle 
of  Hall  v.  Smith,  because  he  is  working  for  his  own  profit,  by  fulfilling 
a  contract  which  he  has  bound  himself  to  perform,  and  for  which  he 
is  to  receive  compensation. 

In  Collett  v.  London  &c.  Railway  Company,  16  Q.  B.  R.  984  (71  Eng. 
C.  L.  R.),  the  company  had  been  required  by  the  postmaster  general 
to  carry  the  mail  under  an  act  making  it  the  duty  of  all  railway  com- 
panies to  carry  the  mail  when  required  to  do  so  by  the  postmaster 
general.  The  plaintiff  was  an  officer  of  the  post  office  department 
accompanying  the  mail,  whom  it  was  the  duty  of  the  company  to 
carry  along  with  the  mail.  It  was  held  that  the  plaintiff  was  entitled 
to  recover  against  the  company  for  an  injury  received  by  him  through 
the  negligence  of  the  servants  of  the  company  in  charge  of  the  train. 

Now  this  was  a  stronger  case  than  that  of  a  voluntary  contractor, 
because  the  company  could  not  refuse  to  undertake  the  service.  Yet 
it  was  not  even  contended  at  the  bar  that  the  company  could  be  regarded 
as  a  public  agent  exempt  as  such  from  liability  to  answer  for  the  acts 
of  their  servants.  If  not  such  a  public  agent  in  respect  to  the  officer 
in  charge  of  the  mail,  how  was  the  case  different  in  respect  to  the  mail, 
where  both  the  mail  and  the  officer  were  carried  by  virtue  of  the  same 
duty,  and  for  one  and  the  same  compensation  ? 

The  mail  carriers,  like  all  others  in  the  service  of  the  mail  contractor, 
are  selected  and  employed  by  him ;  are  paid  by  him  ;  are  under  his 
direction  and  control ;  enter  into  contract  with  him  alone ;  work  for 
his  benefit  and  profit,  and  may  be  discharged  by  him  at  pleasure.  What 
more  is  necessary  to  constitute  the  relation  of  master  and  servant  ? 
The  case  comes  fully  within  the  doctrine  laid  down  by  Chief  Justice 
Best  in  Hall  v.  Smith,  where  he  says  :  "  The  maxim  of  respondeat  superior 
is  bottomed  on  the  principle  that  he  who  expects  to  derive  advantage 
from  an  act  which  is  done  by  another  for  him,  must  answer  for  any 
injury  which  a  third  person  may  sustain  from  it."  The  fact  that  the 
law  requires  the  carrier  to  be  sworn  before  he  enters  on  the  discharge  of 
his  duties  does  not  make  him  the  agent  or  servant  of  the  government, 
or  affect,  in  any  degree,  his  relation  to  the  contractor.  The  safety  of 
the  mail  and  the  regularity  of  the  service  being  dependent,  in  a  great 
degree,  upon  the  fidelity  of  the  carrier,  the  law  requires  that  he  shall 
be  sworn,  as  a  guaranty  to  that  extent,  of  his  fidelity,  just  as  it  required, 
for  like  reasons,  that  he  shall  be  a  white  person,  and  of  not  less  than  a 
certain  age.  But  if  he  is  an  agent  of  the  government,  for  whose  acts 
the  contractor  is  not  responsible,  why  does  the  law  trust  him  without 


CARRIERS    UNDER    CONTRACT.  275 

security,  while  it  exacts  security  from  the  contractor,  and  that  too  whin 
the  contractor  is,  of  necessity,  a  man  of  substance,  which  the  carrier 
seldom  or  never  is  ? 

But  if  a  carrier  who  has  taken  the  oath  required  by  the  act  of  congress 
can  be  justly  regarded  as  an  agent  and  servant  of  the  government,  and 
no  longer  the  mere  agent  and  servant  of  the  contractor,  a  carrier  who 
has  not  taken  the  oath  cannot  be  so  regarded,  because  the  act  requin 
that  he  shall  take  the  oath  before  he  enters  upon  his  duties.  As  Flemii 
had  not  taken  the  oath  to  perform  his  duties  under  Sawyer,  therefore 
it  is  not  competent  for  Sawyer  to  shield  himself  by  alleging  that  Flem- 
ing was  the  agent  and  servant  of  the  government;  and  especially  as  it 
was  a  breach  of  duty  in  him  to  allow  a  person  who  had  not  been  sworn 
to  carry  the  mail.     Act  March  3,  1825. 

The  terms  of  the  contract  between  Sawyer  and  the  department  indi- 
cate clearly  the  understanding  and  intention  of  the  parties  to  it,  that 
the  carriers  whom  Sawyer  might  employ  would  be  his  agents  and  ser- 
vants, for  whose  acts  he  would  be  answerable.  Sawyer  stipulates  to 
take  the  mail,  and  every  part  of  it  from,  and  deliver  it,  and  every  part 
of  it,  into  the  several  post  offices,  and  to  deliver  it  into  the  post  office 
at  the  place  where  the  carrier  stops  at  night,  if  one  is  there  kept ;  and 
if  no  office  is  there  kept,  to  lock  it  up  in  some  secure  place,  "  at  the  risk 
of  the  contractor."  These  were  duties  which,  from  their  nature,  were 
to  be  performed  by  the  carrier.  The  provision  that  the  mail  when 
locked  up  at  night  shall  be  at  the  risk  of  the  contractor,  implies  that  the 
mail,  while  in  the  hands  of  the  carrier,  is  at  the  risk  of  the  contractor. 
The  meaning  is,  that  this  risk  shall  continue,  notwithstanding  the  mail 
has  been  locked  up  in  a  secure  place,  while  the  contractor  will  be  relieved 
of  the  risk  if  the  mail  is  deposited  in  a  post  office  where  it  will  be  in  tin- 
care  of  the  postmaster.  The  stipulation  that  Sawyer  shall  be  respon- 
sible to  the  United  States  for  any  damage  sustained  through  the  unfaith- 
fulness or  want  of  care  of  his  carriers ;  and  the  other,  which  precedes 
it,  that  he  shall  be  "answerable"  for  them,  in  general  terms,  indicated 
as  clearly  as  anything  could,  short  of  express  words,  that  his  carriers 
would  be  his  agents  and  servants,  for  whose  acts  and  defaults  he  would 
be  responsible. 

Two  cases  have  been  cited  as  expressly  sustaining  the  proposition 
that  a  mail  contractor  is  not  responsible  for  the  loss  of  a  mail  through 
the  misfeasance  or  negligence  of  a  carrier.     The  first  of  them  is  Conwell 
v.  Vorhees,  13  Ohio  R.  523.     The  court  stated  the  question  to  be 
whether  the  contractor  was  a  common  carrier  or  a  public  agent,  although 
the  declaration,  in  all  the  counts,  set  forth  misfeasance  and  negligeni 
and  not  the  liability  of  a  common  carrier,  as  the  ground  of  action. 
The  court  held  that  he  was  a  public  agent,  on  the  ground  that  he  was 
engaged  in  the  performance  of  a  public  service,  under  a  contract  wi- 
the government,  and  was  therefore  not  responsible  for  the  misfeasanc 
or  negligence  of  those  employed  by  and  under  him.     For  the  reasi 


276  POSTMASTERS    AND    CARRIERS    OF    MAIL. 

already  given,  I  do  not  think  that  this  decision  can  be  supported. 
The  editor  of  American  Leading  Cases,  vol.  1,  p.  621,  intimates  the 
opinion  that  the  case  cannot  be  sustained  on  the  ground  upon  which 
it  was  placed  by  the  court,  and  that  if  it  can  be  sustained  at  all, 
which  he  evidently  doubts,  it  must  be  on  the  ground  that  the  carrier 
holds  an  official  situation,  and  is  really  in  the  employment  of  the  post 
office  department. 

The  other  case  relied  upon  is  Hutchins  v.  Brackett,  2  Foster's  R.  252. 
That  case,  though  put  upon  the  authority  of  Conwell  v.  Vorhees,  was 
really  decided  upon  a  ground  not  relied  upon,  or  even  mentioned  by 
the  court  in  that  case,  to  wit :  that  the  carrier  was  a  public  agent, 
engaged  in  the  performance  of  a  public  duty,  and  not  the  mere  servant 
of  the  contractor.  It  will  be  observed  that  in  Conwell  v.  Vorhees 
the  judge  uses  "mail  carrier"  in  the  sense  of  "mail  contractor"  (p.  542, 
line  15),  and  that  the  judge  in  Hutchins  v.  Brackett  misquotes  the 
opinion  in  Conwell  v.  Vorhees  by  substituting  "mail  carrier"  for 
"  mail  contractor,"  where  it  occurs  in  the  24th  line  of  p.  542.  Thus  the 
court  in  Conwell  v.  Vorhees  is  represented  as  holding  that  a  mail 
carrier  is  a  public  agent,  when,  in  point  of  fact,  they  held  only  that  a 
mail  contractor  is  such. 

It  thus  appears  that  Hutchins  v.  Brackett  affords  no  support  to  Con- 
well v.  Vorhees,  and  I  think  it  clear  that  Hutchins  v.  Brackett  cannot 
be  sustained  on  the  ground  upon  which  it  was  put.  But  however 
that  may  be,  that  ground,  as  I  have  shown,  is  not  applicable  to  this 
case,  in  consequence  of  the  fact  that  the  carrier  had  not  been  duly 
sworn,  and  in  consequence  of  the  special  stipulations  of  the  contract 
between  the  contractor  and  the  department. 

It  is  objected  that  upon  grounds  of  public  policy  a  contractor  ought 
not  to  be  held  responsible  for  the  misfeasance  or  negligence  of  a  carrier, 
because  to  hold  him  so  would  operate  as  a  discouragement  to  the  tak- 
ing of  contracts  for  the  transportation  of  mail.  Such  considerations 
are  of  little  weight  when  the  rights  and  obligations  of  the  parties  are 
clear  on  legal  principles.  But  I  do  not  perceive  that  there  is  any  real 
ground  for  such  an  apprehension.  A  stage  owner  is  liable  for  injury 
to  a  passenger,  or  for  the  loss  of  his  baggage,  occasioned  by  the  fault 
of  the  driver.  What  greater  hardship  is  there,  if  the  stage  owner  is  a 
contractor  for  carrying  the  mail,  in  holding  him  liable  for  the  loss  of 
a  letter  in  the  mail,  occasioned,  likewise,  by  the  fault  of  the  driver. 
Indeed,  a  just  regard  for  the  interest  of  the  public  requires  that  the 
contractor  should  be  held  responsible ;  "for,"  to  adopt  the  language  of 
Judge  Livingston  in  reference  to  postmasters,  mutatis  mutandis,  "such 
liability  will  greatly  increase  the  security  of  the  public,  not  only  by 
preventing  collusion  between  contractors  and  their  carriers,  but  by 
rendering  the  former  more  circumspect  in  their  choice,  more  watchful 
over  their  agents,  and  more  attentive  to  taking  bonds  for  their  faithful 
conduct.     It  may,  it  is  true,  now  and  then  fall  hard  on  a  contractor,  but 


CARRIERS    UNDER    CONTRACT.  _77 

it  is  better  it  should  be  so  than  that  individuals  should  be  without 
remedy  for  injuries  committed  by  their  agents."     1  John.  R.  404. 

It  has  been  contended  by  the  counsel  for  Corse  that  Sawyer  is  liable, 
under  the  first  count  of  the  declaration,  on  the  ground  that  he  was  guilty 
of  misfeasance  and  negligence  of  his  duty  in  entrusting  the  mail  to  a 
carrier  who  had  not  taken  the  oath  required  by  law,  and  Bishop  v. 
Williamson,  2  Fairf.  R.  495,  is  relied  on.  In  that  case  it  was  held  that 
where  a  clerk  in  the  post  office  had  not  taken  the  oath,  the  postmaster 
was  guilty  of  a  neglect  of  duty,  which  made  him  liable  for  a  theft  com- 
mitted by  the  clerk,  while  in  the  absence  of  such  neglect  of  duty  he 
would  not  have  been  liable,  on  the  principle  of  Lane  v.  Cotton  &  al. 
But  the  court  did  not  hold  that  the  postmaster  was  liable,  because  of 
this  neglect  of  duty,  to  answer,  like  an  insurer,  for  all  losses  that  might 
have  happened.  If  a  loss  had  happened  without  any  fault  on  the  part 
of  the  clerk,  the  case  does  not  hold  that  the  postmaster  would  have 
been  liable.  And  so  in  this  case,  the  fact  that  Sawyer  allowed  Fleming, 
who  had  not  been  sworn,  to  carry  the  mail,  did  not  render  him  liable 
at  all  events  as  an  insurer.  Judged  according  to  what  I  have  said 
heretofore,  it  had  no  effect  upon  his  liability,  for  he  was  liable  for  a  loss 
occasioned  by  Fleming's  negligence,  whether  sworn  or  not.  The  deci- 
sion in  the  case,  therefore,  at  last  depends  on  the  question  whether  the 
loss  was  occasioned  by  negligence  and  want  of  care  on  the  part  of  Flem- 
ing. 

The  case  agreed  does  not  state  whether  the  loss  was  or  was  not  occa- 
sioned by  negligence  and  want  of  care  on  the  part  of  Fleming.     Facts 
are  stated,  which  have  a  bearing  on  that  question,  and  the  parties 
probably  understood  that  the  court  would  determine  it  by  inference 
from  the  facts  agreed,  as  was  in  fact  done  by  the  Circuit  Court.     But 
a  case  agreed,  called  in  the  English  practice  a  "special  case,"  is  a  sub- 
stitute for  a  special  verdict,  and  is  subject  to  like  rules.     It  must  state 
facts,  and  not  merely  the  evidence  of  facts  (2  Tidd,  899),  and  it  is  not 
competent  for  the  court  to  infer  other  facts  from  those  stated,  unless 
they  result  as  a  legal  conclusion.     If  the  parties  intend  that  the  court 
shall  have  authority  upon  a  case  agreed  to  make  such  inference,  they 
must  make  an  agreement  to  that  effect,  as  is  frequently,  if  not  usually, 
done  in  England  in  making  up  a  "special  case."     8  Ad.  &  El.  799; 
7  M.  &  Gr.  295.     This  cannot  be  regarded  as  a  case  submitted  to  the 
court  under  the  provision  of  the  Code,  ch.  162,  §  9,  because  the  record 
states  that  a  "case  was  agreed"  by  the  parties,  "to  be  argued  in  lieu  of 
a  special  verdict."     There  is  no  alternative,  therefore,  but  to  reverse 
the  judgment,  set  aside  the  case  agreed,  and  award  a  venire  de  novo. 
1  Rob.  (old)  Prac.  373-374.     If  upon  the  new  trial  it  shall  be  found  by 
the  jury  that  the  loss,  for  which  the  action  is  brought,  was  occasioned 
by  the  negligence  and  want  of  due  care  on  the  part  of  Fleming,  va  th 
carriage  and  preservation  of  the  mail,  the  defendant  in  error  will  1 
entitled  to  recover.     The  degree  of  care  which  Fleming  was  bound  to 


278  POSTMASTERS    AND    CARRIERS   OF   MAIL. 

exercise  was  such  as  a  man  of  ordinary  prudence  would  have  exercised 
about  his  own  affairs,  under  like  circumstances. 

I  am  of  opinion  to  reverse  the  judgment,  with  costs  to  the  plaintiff 
in  error,  set  aside  the  case  agreed,  and  award  a  venire  de  novo. 

The  other  judges  concurred  in  the  opinion  of  Joynes,  J. 

Judgment  Reversed,  and  venire  de  novo  awarded. 


FOSTER  v.   METTS. 
55  Miss.  77  ;   30  Am.  R.  504.     1877. 

M.  A.  Metts  &  Co.,  the  defendants  in  error,  were  contractors  to  carry 
the  United  States  mail  from  Louisville  to  Artesia,  in  this  state.  J.  C. 
Foster,  the  plaintiff  in  error,  had  $200  in  money  stolen  from  the  mail  on 
this  route,  by  the  carrier  employed  by  the  defendants  in  error  to  carry 
the  mail.  Foster  insisted  that  the  defendants  in  error  were  responsible 
for  the  safe  carrying  of  his  money,  and  should  make  good  to  him  the 
loss.  The  latter  at  first  refused  to  recognize  any  liability  on  their  part 
for  the  loss,  but  finally,  upon  Foster's  agreeing  to  wait  a  few  months 
for  payment,  they  gave  their  note  for  the  amount  claimed,  due  at  the 
time  agreed  upon.  The  note  was  not  paid  at  maturity,  and  this  action 
was  brought  to  recover  upon  it.  The  declaration  set  forth  the  facts 
which  led  to  the  giving  of  the  note.  The  defendants  filed  a  demurrer, 
and  it  was  sustained  by  the  court.  To  the  judgment  upon  the  demurrer 
this  writ  of  error  was  sued  out. 

Campbell,  J.  The  Post-office  Department  is  a  branch  of  the  govern- 
ment, instituted  for  public  convenience.  The  government  of  the 
United  States  has  undertaken  the  business  of  conducting  the  transmis- 
sion and  distribution  and  delivery  of  all  mail-matter.  The  government 
is  the  carrier  of  the  mails.  It  carries  them  by  the  aid  of  agents  it  con- 
tracts with  for  this  service.  Contractors  for  carrying  the  mail  are  the 
agents  of  the  government  in  the  business  undertaken  by  them.  The 
sender  of  mail-matter  has  no  contract  with  the  carrier  of  the  mail-bags, 
and  does  not  commit  his  mail-matter  to  him,  but  to  the  government, 
which  has  undertaken  to  receive,  carry,  and  deliver  it.  The  contractor 
for  carrying  the  mail  is  neither  a  common  carrier  nor  a  private  carrier. 
He  does  not  carry  for  individuals,  nor  receive  any  compensation  from 
them.  He  has  no  knowledge  of  the  mail-matter  he  carries,  and  no  con- 
trol over  it,  except  to  obey  the  instructions  of  the  Post-office  Department. 
Letters  and  packets  are  inclosed  in  government  mail-bags,  secured  by 
locks  provided  by  the  government,  and  at  all  times  subject  to  the  super- 
vision and  control  of  the  officers  and  agents  of  the  government  in  the 
Post-office  Department,  who  may  open  the  mail-bags  and  inspect  the 
mail-matter  they  contain  at  will.    Contractors  for  carrying  the  mail  are 


CARRIERS    UNDER    CONTRACT.  279 

instruments  of  government  whereby  it  perforins  the  function  of  trans- 
mitting mail-matter  from  place  to  place  in  the  execution  of  this  part 
of  its  business. 

Postmasters  are  necessary  agents  for  the  performances  of  the  business 
of  the  Post-office  Department,  and  those  who  carry  the  mail  from  place 
to  place  are  equally  necessary,  and  engaged  in  the  business  of  tin 
government. 

A  rider  or  driver  employed  by  the  contractor  for  carrying  the  mails 
is  an  assistant  about  the  business  of  the  government.  Although  cm- 
ployed,  and  paid,  and  liable  to  be  discharged  at  pleasure  by  the  con- 
tractor, the  rider  or  driver  is  not  engaged  in  the  private  service  of  the 
contractor,  but  is  employed  in  the  public  service.  United  States  v. 
Belew,  2  Brocken,  280. 

A  carrier  of  the  mail  is  required  by  law  to  be  of  a  certain  age,  to  take 
a  prescribed  oath,  is  exempted  from  militia  and  jury  service,  and  is 
liable  to  certain  penalties  for  violations  of  duty,  as  well  as  subject  to 
be  discharged  from  service  by  any  post-master,  in  a  certain  contingency. 
He  is  a  subordinate  agent  of  the  government,  whose  employment  is  con- 
templated and  provided  for  by  the  government  in  contracting  to  have 
the  mail  carried.     lb. 

Contractors  for  carrying  the  mail  are  responsible  for  their  own  mis- 
feasances, but  not  for  those  of  their  assistants.  The  assistants  must 
answer  for  themselves.  The  only  security  for  the  safe  transmission  of 
packages  by  mail  is  the  safeguards  thrown  around  it  by  the  regulations 
of  the  government,  which  announces  that  all  valuables  sent  by  mail 
shall  be  at  the  risk  of  the  owner.  All  that  the  government  promises, 
in  case  of  loss  of  money  or  other  valuables  from  the  mail,  is  to  endeavor 
to  recover  it  and  to  punish  the  offender. 

The  duty  of  contractors  to  carry  the  mail  is  to  carry  it  from  place  to 
place,  subject  to  the  regulations  of  the  post-office  officials.  Their  obli- 
gation is  to  the  government.  They  and  their  assistants  are  agents  of 
the  government,  and  subject  to  the  rule  of  law  applicable  in  such  cases. 
Story  on  Ag.,  sees.  313,  319a,  321 ;   Shear.  &  Redf.  on  Neg.,  sec.  177. 

It  is  well  settled  that  postmasters  are  not  liable  for  losses  occasioned 
by  the  sub-agents,  clerks,  and  servants  employed  under  them,  unless 
they  are  guilty  of  negligence  in  not  selecting  persons  of  suitable  skill, 
or  in  not  exercising  a  reasonable  superintendence  and  vigilance  over 
their  conduct.  Story  on  Ag.,  sec.  319a;  Story  on  Bail.,  sec.  463;  1 
Am.  Ld.  Cas.  785 ;  Schroyer  v.  Lynch,  8  Watts,  453  ;  Wiggins  r.  Hath- 
away, 6  Barb.  632;  Keenan  v.  Southworth,  110  Mass.  474;  Whart. 
on  Neg.,  sec.  292 ;  Shear.  &  Redf.  on  Neg.,  sec.  180. 

As  remarked  before,  carrying  the  mail  is  just  as  necessary,  and  a. 
much  part  of  the  business  of  the  government,  as  the  serviee  rendered 
at  the  offices  by  postmasters;   and  those  employed  about  earning  t 
mail  are  as  much  the  agents  of  the  government  as  are  postmasters  and 
their  clerks  and  assistants.     The  true  test  of  the  character  of  a  person 


280  POSTMASTERS    AND    CARRIERS    OF   MAIL. 

is,  not  who  appoints  or  pays  or  may  dismiss  him,  but  whether  or  not  he 
is  about  a  public  employment  or  a  private  service.  1  Am.  Ld.  Cas. 
621 ;    Story  on  Ag.,  sec.  319  et  seq. 

In  Conwell  v.  Voorhees,  13  Ohio,  523,  and  Hutchins  v.  Brackett,  2 
Fost.  252,  it  was  decided  that  contractors  for  carrying  the  mail  are  not 
responsible  to  the  owner  of  a  letter  containing  money  transmitted  by 
mail  and  lost  by  the  carelessness  of  the  agent  of  the  contractors  carry- 
ing the  mail.  The  rules  applicable  to  agents  of  the  public  were  applied. 
And  although  the  doctrine  of  these  cases  is  criticised  in  Shearman  and 
Redfield  on  Negligence  (sec.  180),  and  has  been  disputed  in  Sawyer 
v.  Corse,  17  Gratt.  230,  we  adopt  it  as  the  better  view. 

In  this  case  the  money  was  stolen  by  the  mail  carrier.  As  to  that, 
he  certainly  was  not  the  agent  of  the  contractors  for  whom  he  was 
riding,  and,  if  they  were  liable  for  his  acts  within  the  scope  of  his  employ- 
ment, they  were  not  liable  for  his  willful  wrongs  and  crimes.  McCoy 
v.  McKowen,  26  Miss.  487 ;  New  Orleans,  Jackson  &  Great  Northern 
R.  R.  Co.'  v.  Harrison,  48  Miss.  112;  Foster  v.  Essex  Bank,  17  Mass. 
479  ;  Wiggins  v.  Hathaway,  6  Barb.  632  ;  Story  on  Ag.,  sec.  309. 

As  the  defendants  in  error  were  not  liable  for  the  money  "  extracted  " 
from  the  mail  by  the  carrier,  they  did  not  make  themselves  liable  by 
giving  their  promissory  note  for  it.  It  is  without  consideration.  The 
compromise  of  doubtful  rights  is  a  sufficient  consideration  for  a  prom- 
ise to  pay  money,  but  compromise  implies  mutual  concession.  Here 
there  was  none  on  the  part  of  the  payee  of  the  note.  His  forbearance 
to  sue  for  what  he  could  not  recover  at  law  or  in  equity  was  not  a  suffi- 
cient consideration  for  the  note.  Newell  v.  Fisher,  11  Smed.  &  M. 
431;  Sullivan  v.  Collins,  18  Iowa,  228;  Palfrey  v.  Railroad  Co.,  4 
Allen,  55;  Allen  v.  Prater,  35  Ala.  169;  Edwards  v.  Baugh,  11  Mee. 
&  W.  641 ;  Longridge  v.  Dorville,  5  Barn.  &  Aid.  117  ;  1  Pars,  on  Con. 
440 ;  Smith  on  Con.  157 ;  1  Add.  on  Con.  28,  sec.  14 ;  1  Hill  on  Con. 
266,  sec.  20. 

Judgment  affirmed. 


BOSTON  INS.   CO.  v.  CHICAGO,   R.   I.   &  P.   R.   CO. 

118  Iowa,  423 ;   92  N.  W.  R.  88;   59  L.  R.  A.  796.     1902. 

Action  to  recover  the  value  of  a  registered  mail  package  which  the 
defendant,  as  one  of  the  agencies  of  the  government,  for  carriage  of  its 
mails,  undertook  to  carry  from  Kansas  City,  Mo.,  to  Kinsley,  Kan., 
and  which  it  is  claimed  was  destroyed  by  fire  in  a  wreck  at  Volland, 
Kan.,  caused  by  the  negligence  of  defendant's  employees.  The  Bankers' 
Mutual  Casualty  Company  paid  the  loss  to  the  owner  of  the  package  ; 
and  plaintiff  who  had  reinsured  the  loss,  repaid  the  amount  thereof  to 


CARRIERS    UNDER    CONTRACT. 

the  casualty  company,  and  as  assignee  of  said  company,  and  by  reason 
of  a  claim  of  subrogation,  seeks  to  recover  the  amount  paid,  from  tin- 
defendant.  The  defendant  demurred  to  the  petition,  and  its  demurrer 
was  sustained,  and  judgment  was  rendered  against  the  plaintiff  for 
costs.     Plaintiff  appeals. 

DeemeX  J.  —  Defendant,  a  corporation  organized  under  the  laws  of 
this  state  for  the  purpose  of  operating  a  railway,  was  in  March  of  the 
year  1899  maintaining  a  line  of  road  in  the  state  of  Kansas,  and  was 
carrying  the  United  States  mail  in  its  passenger  trains  operated  over 
said  road,  pursuant  to  the  following  notice : 

"  Post-office  Department.  Office  of  the  Second  Assistant  Postmaster. 
General  Railway  Adjustment  Division.  Washington,  D.  C,  Sept.  30, 
1898.  Sir:  The  compensation  for  the  transportation  of  mails,"  etc., 
"on  route  No.  155,075,  between  St.  Joseph,  Mo.,  and  Liberal, Kansas, 
has  been  fixed  from  July  1st,  1898,  to  June  30th,  1902,  under  acts  of 
March  3,  1873,  July  12,  1876  and  June  17th,  1878,  upon  returns  show- 
ing the  amount  and  character  of  the  service  for  thirty  successive  work- 
ing days,  commencing  April  5,  1898,  at  the  rate  of,"  etc. ;  ...  and 
pay  is  also  allowed  for  the  use  of  R.  P.  O.  cars  from  July  1,  1898,  at  the 
rate  of,"  etc.  "...  This  adjustment  is  subject  to  further  orders 
and  to  fines  and  deductions,  and  is  based  on  a  service  of  not  less  than 
six  round  trips  per  week.  Very  respectfully,  W.  S.  Shallenberger, 
2nd  Asst.  P.  M.  General. 

"Mr.  W.  G.  Purdy,  V.  Pres.  Chicago,  Rock  Island  and  Pacific  Rail- 
way Co.,  Chicago,  111." 

On  the  16th  day  of  March,  1899,  the  National  Bank  of  Kansas  City, 
Mo.,  caused  a  package  containing  $2000  in  currency  to  be  registered  by 
and  delivered  to  the  post-office  authorities  in  Kansas  City,  Mo.,  for 
transmission  in  the  United  States  mails  to  the  Kinsley  Bank,  of  Kinsley, 
Kan.  This  package  was  delivered  in  due  course  to  the  United  States 
mail  car  operated  by  defendant  company,  and  taken  in  charge  by  the 
mail  clerks  in  said  car  for  carriage  to  its  destination.  On  the  17th  day 
of  March  the  train,  of  which  this  car  was  a  part,  was  wrecked  at  Vol- 
land,  in  the  state  of  Kansas,  through  the  negligence  of  defendant's 
employees  in  the  construction  and  operation  of  a  switch  in  its  yards  at 
said  town,  and  in  running  the  train  of  which  the  mail  car  was  a  part  at 
too  high  a  rate  of  speed.  The  Kinsley  Bank  was  insured  against  loss  of 
this  character  by  the  Bankers'  Mutual  Casualty  Company,  and  the 
plaintiff  reinsured  the  risk  assumed  by  the  casualty  company.  Plain- 
tiff paid  the  loss  to  the  casualty  company,  and  the  casualty  company 
reimbursed  the  Kinsley  Bank  for  the  amount  of  the  loss.  The  policy 
of  insurance  issued  by  the  casualty  company  contained  this  stipula- 
tion: "In  all  cases  of  loss,  when  it  shall  be  claimed  by  the  Hankers' 
Mutual  Casualty  Company  that  the  carrier  or  other  party  in  whose 
custody  the  property  may  be  at  the  time  of  the  loss  is  or  may  be  lial  \<\ 
then  the  assured  shall,  at  the  request  of  this  company  or  its  agents, 


282  POSTMASTERS   AND    CARRIERS   OF   MAIL. 

assign  and  subrogate  all  their  rights  and  claims  to  this  company,  to  an 
amount  not  exceeding  the  sum  paid  by  said  company."  And  in  the 
policy  issued  by  the  plaintiff,  we  find  this  provision :  "  It  is  the  intent 
of  this  insurance  to  fully  indemnify  the  reassured  for  any  and  all  losses 
and  damages  caused  by  the  perils  insured  against,  but  in  case  of  loss  it 
shall  be  lawful  and  necessary  for  the  reassured  to  sue,  tabor  and 
travel  for,  in,  and  about  the  defense,  safeguard,  and  recovery  of  the 
property  hereby  assured,  without  prejudice  to  this  insurance;  and 
upon  the  payment  of  any  loss  under  this  policy,  the  assured  or  their 
assigns,  in  consideration  thereof,  agree  to  convey  to  the  said  Boston 
Marine  Insurance  Co.,  the  unincumbered  title  in  the  property  lost,  as 
absolute  owner  thereof,  and  to  render  all  assistance  in  the  recovery, 
reissue,  or  replacement  of  said  property,  where  possible."  After  plain- 
tiff had  paid  the  loss,  it  received  the  following  instruments  of  assign- 
ment : 

"  To  all  persons  coming  into  possession  of  a  certain  package  of  cur- 
rency, or  any  part  thereof,  shipped  by  the  National  Bank  of  Com- 
merce, of  the  town  of  Kansas  City,  Mo.,  unto  Kinsley  Bank,  in  the  town 
of  Kinsley,  state  of  Kansas,  by  registered  mail,  on  March  16,  1899 : 
You  will  deliver  same  to  the  Bankers'  Mutual  Casualty  Co.,  or  their 
order,  on  presentation  hereof.     Kinsley  Bank,  by  F.  B.  Hine,  Cashier. 

"  Deliver  the  above  package  to  the  Boston  Investment  Co.  Bankers' 
Mutual  Casualty  Co.,  by  A.  U.  Quint,  Treasurer." 

"State  of  Kansas,  County  of  Edwards  — ss. :  Know  all  men  by 
these  presents,  that  we,  Kinsley  Bank,  hereby  assign,  transfer,  and  set 
over  unto  the  Bankers'  Mutual  Casualty  Co.,  or  their  order,  all  our 
right,  title,  and  interest  in  any  and  all  of  the  money  contained  in  the 
package  shipped  by  registered  mail  on  the  16th  day  of  March,  1899, 
by  the  National  Bank  of  Commerce,  of  the  town  of  Kansas  City,  Mo., 
unto  Kinsley  Bank,  town  of  Kinsley,  state  of  Kansas,  and  hereby 
authorize  the  Bankers'  Mutual  Casualty  Co.,  or  their  assigns,  to  main- 
tain action  in  their  own  name  to  recover  any  or  all  of  said  money,  with 
the  same  rights  and  powers  as  we  ourselves  could  do  it.  Kinsley  Bank, 
by  F.  B.  Hine,  Cashier." 

I.  The  action  is  to  recover  the  amount  of  the  loss  from  the  railway 
company,  on  the  theory  that  it  was  under  a  duty  to  the  Kinsley  Bank  to 
safely  carry  all  proper  mailable  material  properly  addressed  to  it,  and 
that  plaintiff  is  either  the  assignee  of  the  Kinsley  Bank,  or,  having  paid 
the  loss,  is  entitled  to  be  subrogated  to  the  rights  of  that  Bank  against 
the  railway  company.  This  duty  is  said  to  arise  both  by  statute  and 
by  contract  between  the  United  States  government  and  the  defendant 
company.  We  must  assume,  for  the  purposes  of  the  case,  that  defend- 
ant's employees  were  negligent  both  in  the  operation  of  the  train  and 
in  the  operation  of  the  switch ;  but  something  more  is  necessary  to 
create  liability.  Actionable  negligence  consists  not  only  in  some  care- 
less or  reckless  act  of  commission  or  omission,  but  there  must  also  be 


CARRIERS    UNDER    CONTRACT.  283 

found  a  breach  of  duty,  created  or  imposed  by  law,  owing  to  the  party 
injured,  from  him  who  was  guilty  of  the  negligent  act.  This  duty  may 
be  general  and  owing  to  everybody,  or  it  may  be  particular  and  owing 
to  a  single  individual  only,  by  reason  of  his  peculiar  position  ;  and  in 
every  instance  the  complaining  party  must  point  out  how  the  duty 
arose  which  is  charged  to  have  been  neglected.  Cooley,  Torts  (2nd 
Ed.),  pp.  791-793.  The  defendant,  as  a  common  carrier  of  freighl  and 
passengers,  was  under  a  general  duty  to  everyone  whom  it  undertook  1 1 1 
serve  in  either  capacity.  It  might  also  assume  particular  duties  to  single 
individuals  by  reason  of  contract  relations,  and  the  first  question  which 
arises  in  the  case  is,  was  it  under  any  duty,  either  general  or  particular, 
to  the  Kinsley  Bank  ?     And  if  so,  what  was  the  nature  of  that  duty  ? 

Under  authority  conferred  by  the  constitution  to  establish  postoffices 
and  post  roads  (Constitution,  U.  S.  article  1,  section  8,  paragraph  7) 
the  general  government  has  undertaken  the  business  of  transmit  til 
distributing  and  delivering  all  mail  matter.  It  has  a  monopoly  on  tli;^ 
business,  which  it  enforces  by  appropriate  penalties.  The  postoffice 
department  is  a  branch  of  the  government,  and  all  mail  matter  is  car- 
ried by  it.  With  reference  to  railways,  we  find  the  following  material 
provisions  in  the  Revised  Statutes  of  the  United  States : 

"  Sec.  3999.  If  the  postmaster  general  is  unable  to  contract  for  carry- 
ing the  mail  on  any  railway  route  at  a  compensation  not  exceeding  the 
maximum  rates  herein  provided  or  for  which  he  may  deem  a  reason- 
able and  fair  compensation,  he  may  separate  the  letter  mail  from  the 
other  mail,  and  contract,  with  or  without  advertising,  for  carrying  such 
letter  mail,  by  horse  express  or  otherwise,  at  the  greatest  speed  that 
can  be  reasonably  obtained,  and  for  carrying  the  other  mail  in  wagons 
or  otherwise  at  a  slower  rate  of  speed. 

"  Sec.  4000.  Every  railway  company  carrying  the  mail,  shall  carry 
on  any  train  which  may  run  over  its  road,  and  without  extra  charge 
therefor,  all  mailable  matter  directed  to  be  carried  thereon,  with  the 
person  in  charge  of  the  same. 

"Sec.  4001.  All  railway  companies  to  which  the  United  States 
have  furnished  aid  by  grant  of  lands,  right  of  way  or  otherwise,  shall 
carry  the  mail  at  such  prices  as  Congress  may  by  law  provide ;  and  until 
such  price  is  fixed  by  law,  the  postmaster  general  may  fix  the  rate  of 
compensation. 

"Sec.  4002.  The  postmaster  general  is  authorized  and  directed 
to  readjust  the  compensation  hereafter  to  be  paid  for  the  transmission 
of  mail  on  railway  routes,  upon  the  conditions  and  at  the  rates  herein- 
after mentioned:  First.  That  all  the  mails  shall  be  conveyed  with  due 
frequency  and  speed ;  and  that  sufficient  and  suitable  room,  fixtures, 
and  furniture,  in  a  car  or  apartment  properly  lighted  and  warmed, 
shall  be  provided  for  route  agents  to  accompany  and  distribute  the  mails. 
Second.  The  pay  per  mile  per  annum  shall  not  exceed  the  follow: 
rates,  viz. :  .  .  ." 


284  POSTMASTERS    AND    CARRIERS    OF    MAIL. 

In  addition  to  this,  congress  in  the  year  1879  passed  an  act  which 
provided  that  the  postmaster  general  should  in  all  cases  decide  upon 
which  trains  and  in  what  manner  mails  should  be  conveyed.  1  Sup. 
Rev.  St.  U.  S.  pp.  245,  250.  The  Revised  Statutes  also  provide,  in 
substance,  that  all  railroads  or  parts  of  railroads  which  are  now  or  may 
hereafter  be  in  operation  are  post  roads,  and  that  the  postmaster  general 
shall  provide  for  the  carrying  of  the  mails  on  all  roads  established  by 
law  as  often  as  he,  having  due  regard  to  productiveness  and  other  cir- 
cumstances, may  think  proper.  Revised  Statutes  U.  S.,  sections  3964, 
3965. 

Plaintiff  contends  that  these  statutes  impose  on  railways  the  duty  of 
carrying  United  States  mail,  while  defendant  argues  that  two  classes 
of  railroads  are  recognized:  First,  "land-grant  roads;"  and,  second, 
roads  which  did  not  receive  aid  in  that  form,  —  and  that,  as  to  the  first, 
there  is  an  absolute  duty  resting  upon  them  to  carry  the  mails,  and, 
as  to  the  second,  the  matter  is  simply  one  of  contract,  there  being  no 
duty  resting  upon  them  in  the  absence  of  agreement.  The  authorities, 
in  a  measure,  at  least,  seem  to  support  appellee's  contention.  Eastern 
R.  Co.  v.  U.  S.,  129  U.  S.  391  (9  Sup.  Ct.  Rep.  320,  32  L.  Ed.  730) ; 
Minneapolis  &  St.  L.  Ry.  Co.  v.  U.  S.,  24  Ct.  CI.  350 ;  U.  S.  v.  Alabama 
G.  S.  R.  Co.,  142  U.  S.  615  (12  Sup.  Ct.  Rep.  306,  35  L.  Ed.  1134); 
U.  S.  v.  Central  Pac.  R.  Co.,  118  U.  S.  235  (6  Sup.  Ct.  Rep.  1038,  30 
L.  Ed.  173).  But  however  this  may  be,  — and  we  make  no  definite 
pronouncement  on  the  point,  —  the  conclusion  reached  does  not  deter- 
mine the  nature  of  the  defendant's  duty.  The  whole  matter,  in  either 
event,  seems  to  be  relegated,  under  certain  limitations,  to  the  post- 
master general ;  and  he  acts  for  and  on  behalf  of  the  general  govern- 
ment. The  duty,  then,  whether  created  by  statute  or  arising  out  of 
contract,  is  to  the  government ;  and  railroad  companies,  in  carrying 
the  mails,  are  agents  of  the  government,  in  the  exercise  of  a  public 
function.  Neither  the  sender  nor  the  addressee  of  mail  matter  had 
any  contract  with  the  railway  company ;  nor  does  the  one  deliver  to, 
nor  the  other  receive  such  matter  from,  the  railway  company.  The 
railway  company  does  not  carry  for  individuals,  nor  receive  any  compen- 
sation from  them.  Letters  and  packages  are  inclosed  in  government 
mail  bags,  secured  by  locks  provided  by  the  government,  taken  in  charge 
by  agents  of  the  government,  delivered  by  these  to  other  agents  of  the 
government  in  cars  of  such  character  as  the  general  government  re- 
quires, handled  by  government  agents  within  these  cars,  and  by  them 
delivered  to  other  agents  of  the  government  for  transmission  or  delivery 
to  the  addresses.  Mailable  matter  is  at  all  times  in  charge  of  the  gov- 
ernment appointees  or  contractors.  Railroads,  as  carriers  of  the  mail, 
have  no  knowledge  of  the  contents  of  the  mail  sacks,  and  no  authority 
or  right  to  control  these  sacks,  except  to  obey  the  instructions  of  the 
postoffice  department.  In  so  far  as  they  handle  the  mail,  they  are 
simply  instrumentalities  of  the  government  for  the  performance  of  a 


CARRIERS    UNDER    CONTRACT.  285 

public  function,  and  are  neither  common  nor  private  carriers  for  the 
government  or  the  individual.  There  is  no  contract  between  the 
carrier  and  the  individual,  and  no  duty  owing  from  the  one  to  the 
other,  except  as  that  other  is  an  integral  part  of  the  whole  people. 
There  is  no  privity  whatever  between  the  individual  and  the  railway 
company  in  the  carriage  of  mail,  and  as  the  railway  has  no  control  there- 
of, and  cannot  direct  as  to  how  it  shall  be  handled,  while  on  the  train, 
it  would  be  most  unjust  to  hold  it  responsible  to  the  individual  ad- 
dressee. Manifestly,  the  railway  is  neither  a  common  nor  a  private 
carrier  for  the  individual.  It  neither  receives  nor  undertakes  to  deliver 
any  of  the  letters  or  packages  carried  over  its  line.  They  are  received 
by  the  government  or  its  agents,  which  undertakes  to  deliver  them  at 
their  destination.  The  railway  company  is  not,  as  we  understand  it, 
a  bailee  of  the  matter  carried  by  it ;  that  is,  a  bailee  in  the  ordinary 
sense.  Neither  the  sender  of  the  letter  nor  the  government  delivers 
mail  to  the  railway  company.  It  is  at  all  times  in  charge  of  officers  and 
agents  of  the  government.  The  railway  company  simply  has  charge 
of  the  car  in  which  the  mails  are  carried,  and  its  responsibility  with 
respect  thereto  is  to  the  general  government.  Muster  v.  Railroad  Co., 
61  Wis.  325  (21  N.  W.  Rep.  223,  50  Am.  St.  Rep.  141).  Nor  do  we  think 
the  relation  of  master  and  servant  exists  between  the  sender  or  addressee 
of  mail  matter  and  the  railroad  company.  To  the  existence  of  this 
relation  it  is  necessary  that  the  master  (the  individual)  have  complete 
control  of  the  servant  (the  railroad  company) ;  that  is,  that  he  have 
the  right  to  say  not  only  what  shall  be  done,  but  how  it  should  be 
accomplished.  These  elements  are  not  present  in  the  case  now  before 
us. 

II.  Defendant's  liability,  then,  must  be  predicated  upon  contract, 
or  arise  out  of  a  duty  created  by  statute.  The  contract  in  this  case 
was  made  by  the  general  government  for  the  benefit  of  the  public, 
and  mediately  for  individuals,  and  not  distributively  for  individuals 
and  indirectly  for  the  public.  The  Kinsley  Bank  was  a  stranger  to 
this  contract,  and  it  was  not  made  for  its  benefit.  True,  it  had  an  in- 
direct interest  in  the  performance  of  the  contract,  as  had  all  who  had 
occasion  to  use  the  mails  being  carried  over  defendant's  line  of  road, 
but  this  interest  was  not  sufficient  to  constitute  a  privity,  which  must 
exist,  either  directly  or  by  substitution,  in  order  to  give  it  a  right  of 
action  upon  the  contract.  Parker  v.  Jeffrey  (Or.),  37  Pac.  Rep.  712; 
German  State  Bank  v.  Northwestern  Water  &  Light  Co.,  104  Iowa,  717  ; 
Davis  v.  Waterworks  Co.,  54  Iowa,  59  ;  Becker  v.  Waterworks,  79  Iowa, 
419.  It  is  clear,  we  think,  there  can  be  no  action  against  the  defendant 
founded  upon  contract. 

III.  We  are  also  constrained  to  hold,  as  heretofore  indicated,  that 
the  defendant,  in  carrying  the  mails,  is  neither  a  private  nor  a  common 
carrier.  It  owed  no  duty  to  the  sender  or  to  the  addressee  of  mail 
matter.     The  law  has  made  it  an  instrumentality  of  government  for 


286  POSTMASTERS    AND    CARRIERS    OF    MAIL. 

the  performance  of  acts  in  execution  of  functions  assumed  and  con- 
trolled by  it.  It  receives  its  compensation  from  the  government,  and, 
at  most,  is  a  public  agent  or  agency,  discharging  public  duties.  What 
is  the  liability  of  such  an  officer  or  agent  ?  If  it  owes  no  duty  to  the 
individual,  it  incurs  no  liability  to  him,  even  though  the  individual  may 
have  been  injured  by  its  action  or  nonaction.  And  the  mere  fact  that 
an  individual  has  sustained  injury  by  reason  of  the  act  of  a  public  officer 
is  not  enough  to  create  a  right  of  action  in  that  individual.  Moss  v. 
Cummings,  44  Mich.  359  (6  N.  W.  Rep.  843) ;  Butler  v.  Kent,  19  Johns. 
223  (10  Am.  Dec.  219) ;  State  v.  Harris,  89  Ind.  363  (46  Am.  St.  Rep. 
169).  To  sustain  a  right  of  action  by  a  private  individual  as  against 
a  public  officer,  it  must  not  only  appear  that  the  duty  violated  was  one 
owed  to  individuals,  but  the  individual  must  show  some  reason  why  he 
singles  himself  out  as  the  party  injured.  Moss  v.  Cummings,  supra. 
Governmental  duties  in  the  exercise  of  constitutional  powers  are  owing 
to  the  public  ;  and,  as  a  general  rule,  no  public  officer  or  agency  charged 
with  the  exercise  of  governmental  functions,  such  as  are  involved  in 
this  case,  can  be  called  upon  to  answer  in  a  private  action  for  the  manner 
in  which  that  authority  has  been  exercised.  But  in  some  cases,  if  the 
duty  is  purely  ministerial,  and  is  one  in  which  individuals  have  a  special 
interest,  they  may  be  liable  for  neglect  or  default  in  the  performance 
of  such  duty.  Even  where  this  exception  prevails  it  must  be  shown  that 
the  party  sought  to  be  charged  was  himself  guilty  of  some  neglect  of 
duty  to  the  individual,  and  he  cannot  be  charged  with  the  negligence  or 
default  of  his  agent  necessarily  employed  in  the  work.  Mersey  Docks 
v.  Gibbs,  17  H.  L.  Cas.  686 ;  Walsh  v.  Trustees,  96  N.  Y.  427.  In  other 
words,  the  maxim  respondeat  superior  does  not  obtain.  A  public 
officer  or  agent  who  has  exercised  ordinary  care  in  the  selection  of 
competent  subordinates  is  not  responsible  for  the  misfeasance  or  positive 
wrongs,  or  for  the  nonfeasance  or  negligence,  of  these  subordinates 
properly  employed  by  or  under  him  in  the  discharge  of  his  official  duties. 
Robertson  v.  Sichel,  127  U.  S.  507  (8  Sup.  Ct.  Rep.  1286,  32  L.  Ed. 
203).  To  charge  a  public  officer  for  the  negligent  performance  of  a 
ministerial  duty,  it  must  appear  not  only  that  the  individual  has  a  dis- 
tinct and  direct  interest  in  its  performance,  but  also  a  legal  right  to 
require  its  performance.  Hence,  when  the  duty  is  one  owing  solely 
to  the  public,  although  the  individual  may  have  a  mediate  interest 
therein,  no  liability  is  incurred,  to  the  individual,  however  much  he 
may  be  injured.  Eslava  v.  Jones,  83  Ala.  139  (3  South  Rep.  317,  3 
Am.  St.  Rep.  699).  This  rule,  also,  has  some  exceptions,  which  find 
place  under  the  maxim,  "  Sic  utere  tuo,"  etc.  But  none  of  these  excep- 
tions apply  to  this  case. 

These  rules  and  exceptions  will  harmonize  and  fully  explain  most,  if 
not  all,  of  the  cases  cited  by  counsel.  Thus  a  postmaster  or  clerk  who 
personally  receives  a  letter  from  an  individual  owes  that  individual  a 
duty,  and  is  liable  for  its  nonperformance,  or  for  his  negligent  acts  in 


CARRIERS    UNDER    CONTRACT.  287 

connection  therewith.  This  is  because  he  becomes  in  a  sense,  a  bailee 
for  the  time  being  of  the  person  from  whom  he  receives  it.  And  the 
same  rule  obtains  when  the  postmaster,  clerk,  or  carrier  receives  a 
letter  or  package  for  delivery  to  a  private  individual.  See  Christy 
v.  Smith,  23  Vt.  663;  Ford  v.  Parker,  4  Ohio  St.  576;  Coleman 
Frazier,  4  Rich.  Law,  146;  Maxwell  v.  Mclvoy,  2  Bibb,  211;  Fitz- 
gerald®. Burrill,  106  Mass.  446;  Raislert).  Oliver,  97  Ala.  710(12  South. 
Rep.  238,  38  Am.  St.  Rep.  213) ;  Sawyer  v.  Corse,  17  Gnu.  230  (99  Am. 
Dec.  445)  [270];  Railroad  Co.  v.  Lampley,  76  Ala.  357  (52  Am.  St. 
Rep.  334) ;  Joslyn  v.  King,  27  Neb.  38  (42  N.  W.  Rep.  756,  4  L.  R.  A. 
457,  20  Am.  St.  Rep.  656).  A  railway  mail  or  postal  clerk  is  also  held 
to  be  a  passenger  while  riding  on  trains,  and  entitled  to  protection  as 
such.  This  is  because  he  is  rightfully  on  the  train,  and  personally 
entitled  to  all  the  rights  of  a  passenger.  Railroad  Co.  v.  Derby,  14 
How.  486  (14  L.  Ed.  502);  Seybolt  v.  Railroad  Co.,  95  X.  Y.  563 
(47  Am.  St.  Rep.  75) ;  Magoffin  v.  Railway  Co.,  102  Mo.  540  (15  S.  W. 
Rep.  76,  22  Am.  St.  Rep.  798) ;  Mellor  v.  Railway  Co.,  105  Mo.  155 
(16  S.  W.  Rep.  849,  10  L.  R.  A.  36) ;  Railway  Co.  v.  Hampton,  61  Tex. 
427  ;  Railway  Co.  v.  Wilson,  79  Tex.  371  (15  S.  W.  Rep.  2S0,  11  L.  R.  A. 
486,  23  Am.  St.  Rep.  345) ;  Railway  Co.  v.  Ketcham,  133  Ind.  346 
(33  N.  E.  Rep.  116,  19  L.  R.  A.  339,  36  Am.  St.  Rep.  550) ;  Baltimore 
&  O.  R.  Co.  v.  State,  72  Md.  36  (17  Atl.  Rep.  1107,  6  L.  R.  A.  706, 
20  Am.  St.  Rep.  454) ;  Lawton  v.  Waite  (Wis.),  79  X.  W.  Rep.  321 
(45  L.  R.  A.  616).  But  see,  in  this  connection,  Price  v.  Railroad  Co., 
113  U.  S.  218  (5  Sup.  Ct.  Rep.  427,  28  L.  Ed.  980). 

IV.    If,  then,  the  doctrine  of  respondeat  superior  does  not  apply,  — 
and  we  think  it  does  not,  —  defendant  if  responsible  at  all,  is  liable  only 
for  its  own  personal  negligence.     That  is  to  say,  it  must  be  shown  that 
the  corporation  itself  did  or  neglected  to  do  some  act  which  was  required 
of  it  in  the  exercise  of  ordinary  care.     If  the  defendant  were  an  indi- 
vidual, instead  of  a  corporation,  the  case  would  not  be  difficult  of  solu- 
tion ;  but  as  it  is  a  corporation,  and  can  act  only  through  agents,  there 
is  always  some  difficulty  in  determining  whether  or  not  the  act  complained 
of  was  its  act  or  the  act  of  a  mere  subordinate.     If  it  used  ordinary  care 
to  supply  suitable  cars  and  a  sufficient  number  of  competent  employees 
for  the  work,  it  fulfilled  its  duty  and  it  is  not  liable  for  the  negligence 
of  subordinate  employees  to  whom  it  must  of  necessity  delegate  its  work. 
Xow,  the  negligence  charged  is  not  a  failure  to  perform  any  of  these 
duties,  but  the  neglect  and  default  of  its  employees  charged  with  the 
operation  of  trains  and  care  of  switches.     The  work  required  of  these 
subordinates  could  all  be  properly  delegated,  and  none  of  these  em- 
ployees were  vice  principals.     They  were  not,  in  the  work  they  were 
performing,  the  alter  ego  of  the  defendant.     Even  if  the  rules  contended 
for  by  appellant  are  to  be  applied,  we  do  not  think  a  cause  of  action  is 
stated. 

Our  conclusions  find  some  support  in  Conwell  v.  Voorhees,  13  Ohio. 


288  POSTMASTERS   AND    CARRIERS    OF   MAIL. 

523  (42  Am.  Dec.  206) ;  Hutchins  v.  Brackett,  22  N.  H.  252  (53  An. 
Dec.  248).  The  only  case  directly  in  poin.t  is  German  State  Bank  v. 
Minneapolis  St.  P.  &  S.  Ste.  R.  Co.,  (C.  C.)  113  Fed.  Rep.  414,  which 
we  understand  has  recently  been  affirmed  by  the  United  States  Circuit 
court  of  appeals  for  this  circuit.  [Bankers  Mut.  Cas.  Co.  v.  Minneap- 
olis, etc.  R.  Co.,  117  Fed.  434,  54  C.  C.  A.  608,  65  L.  R.  A.  397.]  That 
case  is  in  line  with  our  holding,  and  we  approve  of  the  reasoning  therein. 

These  conclusions  render  it  unnecessary  that  we  consider  the  other 
points  made  by  appellee  regarding  plaintiff's  right  to  recover. 

The  ruling  on  the  demurrer  was  right,  and  the  judgment  is  Affirmed. 


THE  WINKFIELD. 

Court  of  Appeal.     [1902]     Prob.  Div.  42 ;  85  L.  T.  R.  668.     1901 . 
[For  this  case,  see  page  14,  supra.] 


VII-VIII 
CARRIERS 


VII.   CARRIERS   OF  GOODS. 

1.   WHO   ARE   COMMON   CARRIERS. 

a.    Nature  of  Public  Calling. 

MUNN   v.   ILLINOIS. 
94  U.  S.  113.     1876. 

Chief  Justice  Waite  :  The  question  to  be  determined  in  this 
case  is  whether  the  general  assembly  of  Illinois  can,  under  the  limi- 
tations upon  the  legislative  power  of  the  States  imposed  by  the  Con- 
stitution of  the  United  States,  fix  by  law  the  maximum  of  charges 
for  the  storage  of  grain  in  warehouses  at  Chicago  and  other  places 
in  the  State  having  not  less  than  one  hundred  thousand  inhabitants, 
"  in  which  grain  is  stored  in  bulk,  and  in  which  the  grain  of  different 
owners  is  mixed  together,  or  in  which  grain  is  stored  in  such  a  man- 
ner that  the  identity  of  different  lots  or  parcels  cannot  be  accurately 
preserved." 

It  is  claimed  that  such  a  law  is  repugnant  — 

1.  To  that  part  of  Sec.  8,  Art.  1,  of  the  Constitution  of  the  United 
States  which  confers  upon  Congress  the  power,  "to  regulate  commerce 
with  foreign  nations  and  among  the  several  States." 

2.  To  that  part  of  Sec.  9  of  the  same  article  which  provides  that  "  no 
preference  shall  be  given  by  any  regulations  of  commerce  or  revenue 
to  the  ports  of  one  State  over  those  of  another  " ;  and 

3.  To  that  part  of  Amendment  14  which  ordains  that  no  State  shall 
"deprive  any  person  of  life,  liberty,  or  property,  without  due  pro- 
cess of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws." 

We  will  consider  the  last  of  these  objections  first. 

Every  statute  is  presumed  to  be  constitutional.  The  courts  ought 
not  to  declare  one  to  be  unconstitutional,  unless  it  is  clearly  so.  If 
there  is  doubt,  the  expressed  will  of  the  legislature  should  be 
sustained. 

The  Constitution  contains  no  definition  of  the  word  "  deprive.*' 
used  in  the  Fourteenth  Amendment.     To  determine  its  signification, 
therefore,  it  is  necessary  to  ascertain  the  effect  which  usage  has  given 
it,  when  employed  in  the  same  or  a  like  connection. 

289 


290  CARRIERS    OF    GOODS. 

While  this  provision  of  the  amendment  is  new  in  the  Constitution 
of  the  United  States,  as  a  limitation  upon  the  powers  of  the  States, 
it  is  old  as  a  principle  of  civilized  government.  It  is  found  in  Magna 
Charta  and,  in  substance  if  not  in  form,  in  nearly  or  quite  all  the 
constitutions  that  have  been  from  time  to  time  adopted  by  the  several 
States  °f  the  Union.  By  the  Fifth  Amendment,  it  was  introduced 
info  the  Constitution  of  the  United  States  as  a  limitation  upon  the 
powers  of  the  national  government,  and  by  the  Fourteenth  as  a 
guaranty  against  any  encroachment  upon  an  acknowledged  right  of 
citizenship  by  the  legislatures  of  the  States. 

"When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their 
government.  They  retained  for  the  purposes  of  government  all  the 
powers  of  the  British  Parliament,  and  through  their  State  constitu- 
tions, or  other  forms  of  social  compact,  undertook  to  give  practical 
effect  to  such  as  they  deemed  necessary  for  the  common  good  and 
the  security  of  life  and  property.  All  the  powers  which  they  re- 
tained they  committed  to  their  respective  States,  unless  in  expressed 
terms  or  by  implication  reserved  to  themselves.  Subsequently, 
when  it  was  found  necessary  to  establish  a  national  government  for 
national  purposes,  a  part  of  the  powers  of  the  States  and  of  the 
people  of  the  States  was  granted  to  the  United  States  and  the  people 
of  the  United  States.  This  grant  operated  as  a  further  limitation 
upon  the  powers  of  the  States,  so  that  now  the  government  of  the 
States  possesses  all  the  powers  of  the  Parliament  of  England,  except 
such  as  have  been  delegated  to  the  United  States  or  reserved  by  the 
people.  The  reservations  by  the  people  are  shown  in  the  prohibi- 
tions of  the  constitutions. 

When  one  becomes  a  member  of  society,  he  necessarily  parts  with 
some  rights  or  privileges  which,  as  an  individual  not  affected  by 
his  relations  to  others,  he  might  retain.  "A  body  politic,"  as  aptly 
defined  in  the  Preamble  of  the  Constitution  of  Massachusetts,  "  is 
a  social  compact  by  which  the  whole  people  covenants  with  each 
citizen,  and  each  citizen  with  the  whole  people,  that  all  shall  be 
governed  by  certain  laws  for  the  common  good."  This  does  not  con- 
fer power  upon  the  whole  people  to  control  rights  which  are  purely 
and  exclusively  private,  Thorpe  v.  R.  &  B.  Railroad  Co.,  27  Vt.  143; 
but  it  does  authorize  the  establishment  of  laws  requiring  each  citizen 
to  so  conduct  himself,  and  so  use  his  own  property,  as  not  unnecessa- 
rily to  injure  another.  This  is  the  very  essence  of  government,  and 
has  found  expression  in  the  maxim  sic  utere  tuo  ut  alienum  non  Icedas. 
From  this  source  come  the  police  powers,  which,  as  was  said  by  Mr. 
Chief  Justice  Taney  in  the  License  Cases,  5  How.  538,  "are  nothing 
more  or  less  than  the  powers  of  government  inherent  in  every  sov- 
ereignty, .  .  .  that  is  to  say,  .  .  .  the  power  to  govern  men  and 
things."  Under  these  powers  the  government  regulates  the  conduct 
of  its  citizens  one  towards  another,  and  the  manner  in  which  each 
shall  use  his  own  property,  when  such  regulations  become  necessary 


WHO    ARE    COMMON    CARRIERS.  291 

for  the  public  good.  In  their  exercise  it  has  been  customary  in 
England  from  time  immemorial,  and  in  this  country  from  its 
colonization,  to  regulate  ferries,  common  carriers,  hackmen,  ba] 
millers,  wharfingers,  innkeepers,  etc.,  and  in  so  doing  to  fix  a  maxi- 
mum of  charge  to  be  made  for  services  rendered,  accommodations 
furnished,  and  articles  sold.  To  this  day  statutes  are  to  I).-  found  in 
many  of  the  States  upon  some  or  all  these  subjects;  and  we  think  it 
has  never  yet  been  successfully  contended  that  such  legislation  came 
within  any  of  the  constitutional  prohibitions  against  interference  with 
private  property.  With  the  Fifth  Amendment  in  force,  Cong] 
in  1820,  conferred  power  upon  the  city  of  Washington  "to  regulate 
.  .  .  the  rates  of  wharfage  at  private  wharves,  .  .  .  the  sweeping 
of  chimneys,  and  to  fix  the  rates  of  fees  therefor,-  .  .  .  and  the 
weight  and  quality  of  bread,"  3  Stat.  587,  sect.  7;  and,  in  L848, 
"to  make  all  necessary  regulations  respecting  hackney  carriages  and 
the  rates  of  fare  of  the  same,  and  the  rates  of  hauling  by  cartmen, 
wagoners,  carmen,  and  draymen,  and  the  rates  of  commission  of 
auctioneers,"  9  id.  224,  sect.  2. 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adoption  of 
the  Fourteenth  Amendment,  it  was  not  supposed  that  statutes  regu- 
lating the  use,  or  even  the  price  of  the  use,  of  private  property 
necessarily  deprived  an  owner  of  his  property  without  due  prongs 
of  law.  Under  some  circumstances  they  may,  but  not  under  all. 
The  amendment  does  not  change  the  law  in  this  particular;  it  simply 
prevents  the  State  from  doing  that  which  will  operate  as  such  a 
deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this 
power  of  regulation  rests,  in  order  that  we  may  determine  what  is 
within  and  what  without  its  operative  effect.  Looking,  then,  to  tin' 
common  law,  from  whence  came  the  right  which  the  Constitution 
protects,  we  find  that  when  private  property  is  "affected  with  a  pub- 
lic interest,  it  ceases  to  be  juris  privati  only."  This  was  said  by 
Lord  Chief  Justice  Hale  more  than  two  hundred  years  ago,  in  bis 
treatise  De  Portibus  Maris,  1  Harg.  Law  Tracts,  78,  and  has  been 
accepted  without  an  objection  as  an  essential  element  in  the  law  oi 
property  ever  since.  Property  does  become  clothed  with  a  public 
interest  when  used  in  a  manner  to  make  it  of  public  consequence 
and  affect  the  community  at  large.  When,  therefore,  one  devotes 
his  property  to  a  use  in  which  the  public  has  an  interest,  he,  in 
effect,  grants  to  the  public  an  interest  in  that  use,  and  must  submit 
to  be  controlled  by  the  public  for  the  common  good,  to  the  extenl 
the  interest  he  has  thus  created.  He  may  withdraw  his  grant  by 
discontinuing  the  use;  but,  so  long  as  he  maintains  the  use,  he  must 
submit  to  the  control. 

Thus,  as  to  ferries,  Lord  Hale  says,  in  his  treatise  De  Jure  Mai 
1  Harg.  Law  Tracts,  G,  the  king  has  "a  right  (if  franchise  or  privi- 
lege, that  no  man  may  set  up  a  common  ferry  fur  all   )  ers, 
without  a  prescription  time  out  of  mind,  or  a  charter  from  the  king 


292  CARRIERS    OF    GOODS. 

He  may  make  a  ferry  for  his  own  use  or  the  use  of  his  family,  but 
not  for  the  common  use  of  all  the  king's  subjects  passing  that  way; 
because  it  cloth  in  consequence  tend  to  a  common  charge,  and  is 
become  a  thing  of  public  interest  and  use,  and  every  man  for  his 
passage  pays  a  toll,  which  is  a  common  charge,  and  every  ferry 
ought  to  be  under  a  public  regulation,  viz. ,  that  it  give  attendance 
at  due  times,  keep  a  boat  in  due  order,  and  take  but  reasonable  toll ; 
for  if  he  fail  in  these  he  is  finable."  So  if  one  owns  the  soil  and 
landing-places  on  both  banks  of  a  stream,  he  cannot  use  them  for 
the  purposes  of  a  public  ferry,  except  upon  such  terms  and  conditions 
as  the  body  politic  may  from  time  to  time  impose ;  and  this  because 
the  common  good  requires  that  all  public  ways  shall  be  under  the 
control  of  the  -public  authorities.  This  privilege  or  prerogative  of 
the  king,  who  in  this  connection  only  represents  and  gives  another 
name  to  the  body  politic,  is  not  primarily  for  his  profit,  but  for  the 
protection  of  the  people  and  the  promotion  of  the  general  welfare. 

And,  again,  as  to  wharves  and  wharfingers,   Lord  Hale,   in  his 
treatise  De  Portibus  Maris,  already  cited,  says:  — 

"  A  man,  for  his  own  private  advantage,  may,  in  a  port  or  town, 
set  up  a  wharf  or  crane,  and  may  take  what  rates  he  and  his  cus- 
tomers can  agree  for  cranage,  wharfage,  housellage,  pesage;  for  he 
doth  no  more  than  is  lawful  for  any  man  to  do,  viz.,  makes  the  most 
of  his  own.  ,  .  .  If  the  king  or  subject  have  a  public  wharf,  unto 
which  all  persons  that  come  to  that  port  must  come  and  unlade  or 
lade  their  goods  as  for  the  purpose,  because  they  are  the  wharfs  only 
licensed  by  the  queen,  ...  or  because  there  is  no  wharf  in  that 
port,  as  it  may  fall  out  where  a  port  is  newly  erected;  in  that  case 
there  cannot  be  taken  arbitrary  and  excessive  duties  for  cranage, 
wharfage,  pesage,  etc.,  neither  can  they  be  enhanced  to  an  immod- 
erate rate ;  but  the  duties  must  be  reasonable  and  moderate,  though 
settled  by  the  king's  license  or  charter.  For  now  the  wharf  and 
crane  and  other  conveniences  are  affected  with  a  public  interest, 
and  they  cease  to  be  juris  privati  only ;  as  if  a  man  set  out  a  street 
in  new  building  on  his  own  land,  it  is  now  no  longer  bare  private 
interest,  but  is  affected  by  a  public  interest." 

This  statement  of  the  law  by  Lord  Hale  was  cited  with  approba- 
tion and  acted  upon  by  Lord  Kenyon  at  the  beginning  of  the  present 
century,  in  Bolt  v.  Stennett,  8  T.  R.  606. 

And  the  same  has  been  held  as  to  warehouses  and  warehousemen. 
In  Aldnutt  v.  Inglis,  12  East,  527,  decided  in  1810,  it  appeared  that 
the  London  Dock  Company  had  built  warehouses  in  which  wines  were 
taken  in  store  at  such  rates  of  charge  as  the  company  and  the  owners 
might  agree  upon.  Afterwards  the  company  obtained  authority, 
under  the  general  warehousing  act,  to  receive  wines  from  imports 
before  the  duties  upon  the  importation  were  paid ;  and  the  question 
was,  whether  they  could  charge  arbitrary  rates  for  such  storage  or 
must  be  content  with  a  reasonable  compensation.  Upon  this  point 
Lord  Ellenborough  said  (p.  537) :  — 


WHO    ARE    COMMON    CARRIERS.  293 

"There  is  no  doubt  that  the  general  principle  is  favored,  both  in 
law  and  justice,  that  every  man  may  fix  whatever  price  he  plei 
upon  his  own  property,  or  the  use  of  it;  but  if  for  a  particular  pur- 
pose the  public  have  a  right  to  resort  to  his  premises  and  make 
of  them,  and  he  have  a  monopoly  in  them  for  that  purpose,  if  he 
will  take  the  benefit  of  that  monopoly,  he  must,  as  an  equivalent, 
perform  the  duty  attached  to  it  on  reasonable  terms.  The  question 
then  is,  whether,  circumstanced  as  this  company  is,  by  the  com- 
bination of  the  warehousing  act  with  the  act  by  which  they  were 
originally  constituted,  and  with  the  actually  existing  state  of  tilings 
in  the  port  of  London,  whereby  they  alone  have  the  warehousing  of 
these  wines,  they  be  not,  according  to  the  doctrine  of  Lord  Hale, 
obliged  to  limit  themselves  to  a  reasonable  compensation  for  such 
warehousing.  And,  according  to  him,  whenever  the  accident  of  time 
casts  upon  a  party  the  benefit  of  having  a  legal  monopoly  of  landing 
goods  in  a  public  port,  and  where  he  is  the  owner  of  the  only  wharf 
authorized  to  receive  goods  which  happens  to  be  built  in  a  port  newly 
erected,  he  is  confined  to  take  reasonable  compensation  only  for 
the  use  of  the  wharf." 

And  further  on  (p.  539) :  — 

"  It  is  enough  that  there  exists  in  the  place  and  for  the  commodity 
in  question  a  virtual  monopoly  of  the  warehousing  for  this  purpose, 
on  which  the  principle  of  law  attaches,  as  laid  down  by  Lord  Hale 
in  the  passage  referred  to  (that  from  De  Portibus  Maris  already 
quoted),  which  includes  the  good  sense  as  well  as  the  law  of  the 
subject." 

And  in  the  same  case  Le  Blanc,  J.,  said  (p.  541):  — 

"Then,  admitting  these  warehouses  to  be  private  property,  and 
that  the  company  might  discontinue  this  application  of  them,  or  that 
they  might  have  made  what  terms  they  pleased  in  the  first  instance, 
yet  having,  as  they  now  have,  this  monopoly,  the  question  is,  whether 
the  warehouses  be  not  private  property  clothed  with  a  public  right, 
and,  if  so,  the  principle  of  law  attaches  upon  them.  The  privilege, 
then,  of  bonding  these  wines  being  at  present  conferred  by  the  Act 
of  Parliament  to  the  company's  warehouses,  is  it  not  the  privilege 
of  the  public,  and  shall  not  that  which  is  for  the  good  of  the  public 
attach  on  the  monopoly,  that  they  shall  not  be  bound  to  pay  an 
arbitrary  but  a  reasonable  rent?  But  upon  this  record  the  company 
resist  having  their  demand  for  warehouse  rent  confined  within  any 
limit;  and,  though  it  does  not  follow  that  the  rent,  in  fact,  fixed 
by  them  is  unreasonable,  they  do  not  choose  to  insist  on  its  being 
reasonable  for  the  purpose  of  raising  the  question.  For  this  pur- 
pose, therefore,  the  question  may  be  taken  to  be  whether  they  may 
claim  an  unreasonable  rent.  But  though  this  be  private  property, 
yet  the  principle  laid  down  by  Lord  Hale  attaches  upon  it,  that  when 
private  property  is  affected  with  a  public  interest  it  ceases  to  be 
juris  privati  only;  and,  in  case  of  its  dedication  to  such  a  purpose 


294  CARRIERS    OF    GOODS. 

as  this,  the  owners  cannot  take  arbitrary  and  excessive  duties,  but 
the  duties  must  be  reasonable." 

We  have  quoted,  thus  largely,  the  words  of  these  eminent  ex- 
pounders of  the  common  law,  because,  as  we  think,  we  find  in  them 
the  principle  which  supports  the  legislation  we  are  now  examining. 
Of  Lord  Hale  it  was  once  said  by  a  learned  American  judge :  — 

"In  England,  even  on  the  rights  of  prerogative,  they  scan  his 
words  with  as  much  care  as  if  they  had  been  found  in  Magna  Charta; 
and,  the  meaning  once  ascertained,  they  do  not  trouble  themselves  to 
search  any  further."     6  Cow.  (1ST.  Y.)  536,  note. 

In  later  times,  the  same  principle  came  under  consideration  in  the 
Supreme  Court  of  Alabama.  The  Court  was  called  upon,  in  1841,. 
to  decide  whether  the  power  granted  to  the  city  of  Mobile  to  regu- 
late the  weight  and  price  of  bread  was  unconstitutional,  and  it  was 
contended  that  "  it  would  interfere  with  the  right  of  the  citizen  .to 
pursue  his  lawful  trade  or  calling  in  the  mode  his  judgment  might 
dictate;"  but  the  court  said,  "there  is  no  motive  .  .  .  for  this 
interference  on  the  part  of  the  legislature  with  the  lawful  actions  of 
individuals,  or  the  mode  in  which  private  property  shall  be  enjoyed, 
unless  such  calling  affects  the  public  interest,  or  private  property  is 
employed  in  a  manner  which  directly  affects  the  body  of  the  people. 
Upon  this  principle,  in  this  State,  tavern-keepers  are  licensed;  .  .  . 
and  the  County  Court  is  required,  at  least  once  a  year,  to  settle  the 
rates  of  innkeepers.  Upon  the  same  principle  is  founded  the  con- 
trol which  the  legislature  has  always  exercised  in  the  establishment 
and  regulation  of  mills,  ferries,  bridges,  turnpike  roads,  and  other 
kindred  subjects."     Mobile  v.  Yuille,  3  Ala.  n.  s.  140. 

From  the  same  source  comes  the  power  to  regulate  the  charges  of 
common  carriers,  which  was  done  in  England  as  long  ago  as  the 
third  year  of  the  reign  of  William  and  Mary,  and  continued  until 
within  a  comparatively  recent  period.  And  in  the  first  statute  we 
find  the  following  suggestive  preamble,  to  wit:  — 

"And  whereas  divers  wagoners,  and  other  carriers,  by  combina- 
tion amongst  themselves,  have  raised  the  prices  of  carriage  of  goods 
in  many  places  to  excessive  rates,  to  the  great  injury  of  the  trade : 
Be  it,  therefore,  enacted,"  etc.  3  W.  &  M.  c.  12,  sect.  24;  3  Stat,  at 
Large  (Great  Britain),  481. 

Common  carriers  exercise  a  sort  of  public  office,  and  have  duties 
to  perform  in  which  the  public  is  interested.  New  Jersey  Nav.  Co. 
v.  Merchants'  Bank,  6  How.  382.  Their  business  is,  therefore, 
"affected  with  a  public  interest,"  within  the  meaning  of  the  doctrine 
which  Lord  Hale  has  so  forcibly  stated. 

But  we  need  not  go  further.  Enough  has  already  been  said  to 
show  that,  when  private  property  is  devoted  to  a  public  use,  it  is 
subject  to  public  regulation.  It  remains  only  to  ascertain  whether 
the  warehouses  of  these  plaintiffs  in  error,  and  the  business  which 
is  carried  on  there,  come  within  the  operation  of  this  principle. 


WHO    ARE    COMMON    CARRIERS. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had  built 
their  warehouses  and  established  their  business  before  the  regula- 
tions complained  of  were  adopt!. 1.  What  they  did  was  from  the 
beginning  subject  to  the  body  politic  to  require  them  to  conform  to 
such  regulation  as  might  be  established  by  the  proper  authoril 
for  the  common  good.     They  entered  upon  their  busi  rid  pro- 

vided  themselves    with  the    means  to   carry  it  on    subiecl    to   this 
condition.    If  they  did  not  wish  to  submit  themselves  to  such  inter- 
ference, they  should  not  have  clothed  the  public  with  an  into 
their  concerns.     The  same  principle  applies  to  them  that  i  the 

proprietor  of  a  hackney-carriage,  and  as  to  him  it  has  never  been 
supposed  that  he  was  exempt  from  regulating  statutes  or  ordinal 
because  he  had  purchased  his  horses  and  carriage  and  establis 
his  business  before  the  statute  or  the  ordinance  was  adopted. 

Justice  Field  (dissenting).1  ....... 

The  power  of  the  State  over  the  property  of  the  citizen  under 
the  constitutional  guaranty  is  well  defined.  The  State  may  take 
his  property  for  public  uses,  upon  just  compensation  being  made 
therefor.  It  may  take  a  portion  of  his  property  by  way  of  taxation 
for  the  support  of  the  government.  It  may  control  the  use  and  - 
session  of  his  property,  so  far  as  may  be  necessary  for  the  protection 
of  the  rights  of  others,  and  to  secure  to  them  the  equal  use  and 
enjoyment  of  their  property.  The  doctrine  that  each  one  musl 
use  his  own  as  not  to  injure  his  neighbor,  —  sic  utere  tuo  ut  alienum 
non  Icedas, — is  the  rule  by  which  every  member  of  society  must 
possess  and  enjoy  his  property;  and  all  legislation  essential  to 
secure  this  common  and  equal  enjoyment  is  a  legitimate  exercise 
of  State  authority.  Except  in  cases  where  property  may  be  de- 
stroyed to  arrest  a  conflagration  or  the  ravages  of  pestilence,  or 
be  taken  under  the  pressure  of  an  immediate  and  overwhelming 
necessity  to  prevent  a  public  calamity,  the  power  of  the  Slate  over 
the  property  of  the  citizen  does  not  extend  beyond  such  limits. 

It  is  true  that  the  legislation  which  secures  to  all  protection  in 
their  rights,  and  the  equal  use  and  enjoyment  of  their  property, 
embraces  an  almost  infinite  variety  of  subjects.  Whatever  affects 
the  peace,  good  order,  morals,  and  health  of  the  community) 
within  its  scope;  and  every  one  must  use  and  enjoy  his  property 
subject  to  the  restrictions  which  such  legislation  imposes.  What 
is  termed  the  police  power  of  the  State,  which,  from  the  language 
often  used  respecting  it,  one  would  suppose  to  be  an  undefined  and 
irresponsible  element  in  government,  can  only  interfere  with  the 
conduct  of  individuals  in  their  intercourse  with  each  other,  and  in 
the  use  of  their  property,  so  far  as  may  be  required  to  secure  these 
objects.  The  compensation  which  the  owners  of  property,  not  hav- 
ing any  special  rights  or  privileges  from  the  government  in  con: 

1  Justice  Strong  concurred  in  the  dissent. 


296  CARRIERS    OF    GOODS. 

tion  with  it,  may  demand  for  its  use,  or  for  their  own  services  in 
union  with  it,  forms  no  element  of  consideration  in  prescribing  regu- 
lations for  that  purpose.     If  one  construct  a  building  in  a  city,  the 
State,  or  the  municipality  exercising  a  delegated   power  from  the 
State,  may  require  its  walls  to  be  of  sufficient  thickness  for  the  uses 
intended;  it  may  forbid  the  employment  of  inflammable  materials 
in  its  construction,  so  as  not  to  endanger  the  safety  of  his  neighbors; 
if  designed  as  a  theatre,  church,    or  public  hall,  it  may  prescribe 
ample  means  of  egress,  so  as  to  afford  facility  for  escape  in  case  of 
accident;  it  may  forbid  the  storage  in  it  of  powder,  nitro-glycerine, 
or  other  explosive  material ;  it  may  require  its  occupants  to  remove 
daily  decayed  vegetable  and  animal  matter,  which  would  otherwise 
accumulate  and  engender  disease;  it  may  exclude  from  it  all  occu- 
pations and  business  calculated  to  disturb  the  neighborhood  or  infect 
the  air.     Indeed,  there  is  no  end  of  regulations  with  respect  to  the 
use  of  property  which  may  not  be  legitimately  prescribed,  having 
for  their  object  the  peace,  good  order,  safety,  and  health  of  the  com- 
munity, thus  securing  to  all  the  equal  enjoyment  of  their  property; 
but  in  establishing  these  regulations  it  is  evident  that  compensation 
to  the  owner  for  the  use  of  his  property,  or  for  his  services  in  union 
with  it,  is  not  a  matter  of  any  importance;  whether  it  be  one  sum 
or  another  does  not  affect  the  regulation,  either  in  respect  to  its 
utility   or   mode   of   enforcement.     One   may   go,   in   like   manner, 
through  the  whole  round  of  regulations  authorized  by  legislation, 
State  or  municipal,  under  what  is  termed  the  police  power,  and  in 
no  instance  will  he  find  that  the  compensation  of  the  owner  for  the 
use  of  his  property  has  any  influence  in  establishing  them.     It  is 
only  where  some  right  or  privilege  is  conferred  by  the  government 
or  municipality  upon   the  owner,  which  he  can  use  in  connection 
with  his  property,  or  by  means  of  which  the  use  of  his  property  is 
rendered  more  valuable  to  him,  or  he  thereby  enjoys  an  advantage 
over  others,  that  the  compensation  to  be  received  by  him  becomes  a 
legitimate  matter  of  regulation.     Submission  to  the  regulation  of 
compensation  in  such  cases  is  an  implied   condition  of  the  grant, 
and  the  State,  in  exercising  its  power  of  prescribing  compensation, 
only  determines  the  conditions  upon  which  its  concessions  shall  be 
enjoyed.     When  the  privilege  ends,  the  power  of  regulation  ceases. 
Jurists  and  writers  on  public  law  find  authority  for  the  exercise 
of  this  police  power  of  the  State  and  the  numerous  regulations  which 
it  prescribes  in  the  doctrine  already  stated,  that  every  one  must  use 
and  enjoy  his  property  consistently  with  the  rights  of  others,  and 
the  equal  use  and  enjoyment  by  them   of   their  property.      'The 
police  power  of  the   State,"  says  the   Supreme   Court  of  Vermont, 
"  extends  to  the  protection  of  the  lives,  limbs,  health,  comfort,  and 
quiet  of  all  persons,  and  the  protection  of  all  property  in  the  State. 
According  to  the  maxim,  sic  utere  tuo  ut  alienum  non  tcedas,  which 
being  of  universal  application,  it  must,  of  course,  be  within  the  range 


WHO    ARE    COMMON    CARRIERS.  297 

of  legislative  action  to  define  the  mode  cud  manner  in   which 
one  may  so  use  his  own  as  not  to  injure  others."     Thorpe  v.  Rutland 
&  Burlington  Railroad  Co.,  27  Vt.    14'.).     "We  think  i 
principle  growing  out  of  the  nature  of  well-ordered  civilized  si 
says  the   Supreme  Court  of   Massachusetts,  "that  every  holdei 
property,  however  absolute  and  unqualified  may  In-  his  title,  holds 
it  under  the  implied  liability  that  his  use  of  it  shall  not  le  injurious 
to  the  equal  enjoyment  of  others  having  an   equal  right  to  tin  enjoy- 
ment of  their  property  nor  injurious  to  the  rights  of  th»  communi 
Commonwealth  v.  Alger,  7  Cush.  84.     In  his  Commentafie  . 
speaking  of  the  protection  afforded  by  the  Constitution   to   pri 
property,   Chancellor   Kent   says:    "But   though    property  be    thus 
protected,  it  is  still  to  be  understood  that  the  law-giver  has  the  right 
to  prescribe  the  mode  and  manner  of  using  it,  so  far  as  may  be  tu 
sary  to  pre  rent  the  abuse  of  the  right,  to  the  injury  or  annoyance  of 
others,  or  of  the  public.     The  government  may,  by  general  regula- 
tions, interdict  such  uses  of  property  as  would  create  nuisances  and 
become  dangerous   to  the  lives,  or  health,  or  peace,  or  comfort  of 
the    citizens.     Unwholesome    trades,    slaughter-houses,    operations 
offensive  to  the  senses,  the  deposit  of  powder,   the  application   of 
steam-power  to  propel  cars,  the  building  with  combustible  materials, 
and  the  burial  of  the  dead  may  all  be  interdicted  by  law,   in  the 
midst  of  dense   masses  of  population,  on  the  general  and  rational 
principle  that  every  person  ought  so  to  use  his  property  as  not  to  injure 
his  neighbors,  and  that  private  interests  must  be  made  subservient  to 
the  general  interests  of  the  community."     2  Kent,  340. 

The  Italics  in  these  citations  are  mine.  The  citations  show  what 
I  have'  already  stated  to  be  the  case,  that  the  regulations  which  the 
State,  in  the  exercise  of  its  police  power,  authorizes  with  respect  to 
the  use  of  property  are  entirely  independent  of  any  question  of  com- 
pensation for  such  use,  or  for  the  services  of  the  owner  in  connec- 
tion with  it. 

There  is  nothing  in  the  character  of  the  business  of  the  defendants 
as  warehousemen  which  called  for  the  interference  complained  of  in 
this  case.  Their  buildings  are  not  nuisances;  their  occupation  of 
receiving  and  restoring  grain  infringes  upon  no  rights  of  others, 
disturbs  no  neighborhood,  infects  not  the  air,  and  in  no  respect  pre- 
vents others  from  using  and  enjoying  their  property  as  to  them  may 
seem  best.  The  legislation  in  question  is  nothing  less  than  a  buhl 
assertion  of  absolute  power  by  the  State  to  control  at  its  discretion 
the  property  and  business  of  the  citizen,  and  fix  the  compensation 
he  shall  receive.  The  will  of  the  legislature  is  made  the  condition 
upon  which  the  owner  shall  receive  the  fruits  of  his  property  and 
the  just  reward  of  his  labor,  industry,  and  enterprise.  "That  gov- 
ernment," said  Story,  "can  scarcely  be  deemed  to  be  free  where  the 
rights  of  property  are  left  solely  dependent  upon  the  will  of 
legislative  body  without  any  restraint.     The  fundamental  maxims  of 


298  CARRIERS    OF    GOODS. 

a  free  government  seem  to  require  that  the  rights  of  personal  liberty 
and  private  property  should  be  held  sacred."  Wilkeson  v.  Leland, 
2  Pet.  657.  The  decision  of  the  Court  in  this  case  gives  unrestrained 
license  to  legislative  will. 

The  several  instances  mentioned  by  counsel  in  the  argument,  and 
by  the  Court  in  its  opinion,  in  which  legislation  has  fixed  the  com- 
pensation which  parties  may  receive   for  the  use  of  their  property 
and  services,  do  not  militate  against  the  views  I  have  expressed  of 
the  power  of  the  State  over  the  property  of  the  citizen.     They  were 
mostly  cases  of  public  ferries,  bridges,  and  turnpikes,  of  wharfingers, 
hackmen,   and  draymen,    and  of   interest  on  money.     In  all  these 
cases,   except  that  of  interest  on   money,  which  I   shall  presently 
notice,  there  was  some  special  privilege  granted  by  the  State  or 
municipality;  and  no  one,  I  suppose,   has  ever  contended  that  the 
State  has  not  a  right  to  prescribe  the  conditions  upon  which  such 
privileges  should  be  enjoyed.     The  State  in  such  cases  exercises  no 
greater  right  than  an  individual  may  exercise  over  the  use  of  his 
own  property  when  leased  or  loaned  to  others.     The  conditions  upon 
which  the  privilege  shall  be  enjoyed  being  stated  or  implied  in  the 
legislation  authorizing  its  grant,  no  right  is,  of  course,  impaired  by 
their  enforcement.     The  recipient  of  the  privilege,  in  effect,  stipu- 
lates to  comply  with  the  conditions.     It  matters  not  how  limited 
the  privilege  conferred,  its  acceptance  implies  an  assent  to  the  regu- 
lation of  its  use  and  the  compensation  for  it.     The  privilege  which 
the  hackman  and  drayman  have  to  the  use  of  stands  on  the  public 
streets,  not  allowed  to  the  ordinary  coachman  or  laborer  with  teams, 
constitutes  a  sufficient  warrant  for  the  regulation  of  their  fares.     In 
the  case  of  the  warehousemen  of  Chicago,  no  right  or  privilege  i* 
conferred  by  the  government  upon  them;   and  hence  no  assent  ot 
theirs  can  be  alleged  to  justify  any  interference  with  their  charges 
for  the  use  of  the  property.1 


i  In  Budd  v.  New  York,  143  U.  S.  517  (1892),  in  which  the  majority  of 
the  court  reaffirmed  the  views  expressed  by  the  majority  in  the  principal  case 
as  to  state  regulation  of  charges  for  storage  of  grain  in  elevators,  Mr.  Justice 
Brewer  (Field  and  Brown,  JJ.,  concurring)  dissented,  using  in  part  this  lan- 
guage (p.  549):  "The  vice  of  the  doctrine  [announced  by  the  majority]  is, 
that5  it  places  a  public  interest  in  the  use  of  property  upon  the  same  basis  as 
a  public  use  of  property.  Property  is  devoted  to  a  public  use  when,  and  only 
when,  the  use  is  one  which  the  public  in  its  organized  capacity,  to  wit,  the 
State,  has  a  right  to  create  and  maintain,  and,  therefore,  one  which  all  the 
public  have  a  right  to  demand  and  share  in.  The  use  is  public,  because  the  public 
may  create  it,  and  the  individual  creating  it  is  doing  thereby  and  pro  tanto  the 
work  of  the  State.  The  creation  of  all  highways  is  a  public  duty.  Railroads  are 
highways.  The  State  may  build  them.  If  an  individual  does  that  work,  he  is 
pro  tanto  doing  the  work  of  the  State.  He  devotes  his  property  to  a  public  use. 
The  State  doing  the  work  fixes  the  price  for  the  use.     It  does  not  lose  the  right  to 


WHO    ARE    COMMON    CARRIERS.  299 


b.    Wlio  exercise  such  Calling. 

ALLEN  et  al.,  Appellants,  v.  SACKRIDER  et  ah 
37  N.  Y.  341.     18G7. 

Parkek,  J.  The  action  was  brought  against  the  defendants  to 
charge  them,  as  common  carriers,  with  damage  to  a  quantity  of  grain 
shipped  by  the  plaintiffs  in  the  sloop  of  the  defendants,  to  be  trans- 
ported from  Trenton,  in  the  province  of  Canada,  to  Ogdensburgh,  in 
this  State,  which  accrued  from  the  wetting  of  the  grain  in  a  storm. 

The  case  was  referred  to  a  referee,  who  found  as  follows:  — 

"The  plaintiffs,  in  the  fall  of  1859,  were  partners,  doing  busi- 
ness at  Ogdensburgh.  The  defendants  were  the  owners  of  the  sloop 
'  Creole,'  of  which  Farnham  was  master.  In  the  fall  of  1859  the 
plaintiffs  applied  to  the  defendants  to  bring  a  load  of  grain  from  the 
bay  of  Quinte  to  Ogdensburgh.  The  master  stated  that  he  was  a 
stranger  to  the  bay,  and  did  not  know  whether  his  sloop  had  capacity 
to  go  there.  Being  assured  by  the  plaintiff  that  she  had,  he  engaged 
for  the  trip  at  three  cents  per  bushel,  and  performed  it  with  safety. 
In  November,  1859,  plaintiffs  again  applied  to  defendants  to  make 
another  similar  trip  for  grain,  and  it  was  agreed  at  one  hundred 
dollars  for  the  trip.  The  vessel  proceeded  to  the  bay,  took  in  a 
load  of  grain,  and  on  her  return  was  driven  on  shore,  and  the  cargo 
injured  to  the  amount  of  $1346.34;  that  the  injury  did  not  result 
from  the  want  of  ordinary  care,  skill,  or  foresight,  nor  was  it  the 
result  of  inevitable  accident,  or  what,  in  law,  is  termed  the  act  of 
God.  From  these  facts,  my  conclusions  of  law  are,  that  the  defend- 
ants were  special  carriers,  and  only  liable  as  such,  and  not  as  com- 
mon carriers;  and  that  the  proof  does  not  establish  such  facts  as 
would  make  the  defendants  liable  as  special  carriers;  and,  there- 
fore, the  plaintiffs  have  no  cause  of  action  against  them." 

The  only  question  in  the  case  is,  were  the  defendants  common 
carriers?  The  facts  found  by  the  referee  do  not,  I  think,  make  the 
defendants  common  carriers.  They  owned  a  sloop;  but  it  does  not 
appear  that  it  was  ever  offered  to  the  public  or  to  individuals  for 
use,  or  ever  put  to  any  use,  except  in  the  two  trips  which  it  made 
for  the  plaintiffs,  at  their  special  request.  Nor  does  it  appear  that 
the  defendants  were  engaged  in  the  business  of  carrying  goods,  or 
that  they  held  themselves  out  to  the  world  as  carriers,  or  had 

fix  the  price,  because  an  individual  voluntarily  undertakes  to  do  the  work.     But 
this  public  use  is  very  different  from  a  public  interest  in  the  use.     There  is  sea 
any  property  in  whose  use  the  public  lias  no  interest."     See  also  his  dissent  (Field, 
Jackson,  and  White,  concurring)  in  Brass  v.  Stoeser,  153  U.  S.  391  (18U4),  a  case 
also  relating  to  regulation  of  elevator  charges. 


300  CARRIERS   OF    GOODS. 

offered  their  services  as  such.  This  casual  use  of  their  sloop  in 
transporting  plaintiffs'  property  falls  short  of  proof  sufficient  to 
show  them  common  carriers. 

A  common  carrier  was  defined,  in  Gisbourn  v.  Hurst,  1  Salk. 
249  ,x  to  be,  any  man  undertaking,  for  hire,  to  carry  the  goods  of 
all  persons  indifferently; "  and  in  Dwight  v.  Brewster,  1  Pick.  50 
[16] »  to  be  one  who  undertakes,  for  hire,  to  transport  the  goods  of 
such  as  choose  to  employ  him,  from  place  to  place."  In  Orange  Bank 
v.  Brown,  3  Wend.  161,  Chief  Justice  Savage  said:  "Every  person 
who  undertakes  to  carry,  for  a  compensation,  the  goods  of  all  per- 
sons indifferently,  is,  as  to  the  liability  imposed,  to  be  considered  a 
common  carrier.  The  distinction  between  a  common  carrier  and  a 
private  or  special  carrier  is ,  that  the  former  holds  himself  out  in 
common,  that  is,  to  all  persons  who  choose  to  employ  him,  as  ready 
to  carry  for  hire;  while  the  latter  agrees,  in  some  special  case,  with 
some  private  individual,  to  carry  for  hire."  Story  on  Contracts, 
§  752  a.  The  employment  of  a  common  carrier  is  a  public  one, 
and  he  assumes  a  public  duty,  and  is  bound  to  receive  and  carry 
the  goods  of  any  one  who  offers.  "On  the  whole,"  says  Professor 
Parsons,  "  it  seems  to  be  clear  that  no  one  can  be  considered  as  a 
common  carrier  unless  he  has,  in  some  way,  held  himself  out  to  the 
public  as  a  carrier,  in  such  manner  as  to  render  him  liable  to  an 
action  if  he  should  refuse  to  carry  for  any  one  who  wished  to  employ 
him."     2  Pars,  on  Cont.  [5th  ed.]  166,  note. 

The  learned  counsel  for  the  appellant  in  effect  recognizes  the 
necessity  of  the  carrier  holding  himself  out  to  the  world  as  such, 
in  order  to  invest  him  with  the  character  and  responsibilities  of  a 
common  carrier;  and,  to  meet  that  necessity,  says:  "  The  '  Creole ' 
was  a  freight  vessel,  rigged  and  manned  suitably  for  carrying  freight 

1  GISBOURN  v.  HURST. 

common  bench,  1  Salk.  249.     1710. 

In  trover  upon  a  special  verdict  the  case  was,  The  goods  in  the  declaration  were  the 
plaintiff's,  and  by  him  delivered  in  London  to  one  Richardson,  to  carry  down  to 
Birmingham.  This  Richardson  was  not  a  common  carrier,  but  for  some  small  time 
last  past  brought  cheese  to  London,  and  in  his  return  took  such  goods  as  he  could  get 
to  carry  back  in  his  wagon  into  the  country  for  a  reasonable  price.  When  he  returned 
home,  he  put  his  wagon  with  the  cheese  into  the  barn,  where  it  continued  two  nights 
and  a  day,  and  then  the  landlord  came  and  distrained  the  cheese  for  rent  due  for  the 
house,  which  was  not  an  inn,  but  a  private  house;  and  it  was  agreed  per  cur.  That 
goods  delivered  to  any  person  exercising  a  public  trade  or  employment  to  be  carried, 
wrought,  or  managed  in  the  way  of  his  trade  or  emplo}r,  are  for  that  time  under  a  legal 
protection,  and  privileged  from  distress  for  rent ;  but  this  being  a  private  undertaking 
required  a  further  consideration  ;  and  it  was  resolved,  That  any  man  undertaking  for 
hire  to  carry  the  goods  of  all  persons  indifferently,  as  in  this  case,  is,  as  to  this  privi- 
lege, a  common  carrier ;  for  the  law  has  given  the  privilege  in  respect  of  the  trader, 
and  not  in  respect  of  the  carrier ;  and  the  case  in  Cro.  El.  596,  is  stronger.  Two 
tradesmen  brought  their  wool  to  a  neighbor's  beam,  which  he  kept  for  his  private  use, 
and  it  was  held  that  it  could  not  be  distrained. 


WHO    ARE    COMMON    CARRIERS.  JJQ] 

from  port  to  port;  her  appearance  in  the  harbor  of  Ogdensburgh, 
waiting  for  business,  was  an  emphatic  advertisement  that  she  sought 
employment."  These  facts  do  not  appear  in  the  findings  of  tin- 
referee,  and,  therefore,  cannot,  if  they  existed,  help  the  appellants 
upon  this  appeal. 

It  is  not  claimed  that  the  defendants  are  liable,  unless  as  common 
carriers.  Very  clearly  they  were  not  common  carriers;  and  the 
judgment  should,  therefore,  be  affirmed. 


GORDON  v.  HUTCHINSON. 
1  W.  &  S.  (Pa.)  285.     1841. 

This  was  an  action  on  the  case  by  James  B.  Hutchinson  against 
James  Gordon.     The  defendant  pleaded  non  assumpsit. 

The  facts  were  that  the  defendant,  being  a  farmer,  applied  at  the 
store  of  the  plaintiff  for  the  hauling  of  goods  from  Lewistown  to 
Bellefonte,  upon  his  return  from  the  former  place,  where  he  was 
going  with  a  load  of  iron.  He  received  an  order  and  loaded  the 
goods.  On  the  way  the  head  came  out  of  a  hogshead  of  molasses, 
and  it  was  wholly  lost.  In  this  action  the  plaintiff  claimed  to 
recover  the  price  of  it.  There  was  much  proof  on  the  subject  of  the 
occasion  of  the  loss:  whether  it  was  in  consequence  of  expansion  cf 
the  molasses  from  heat,  or  of  negligence  on  the  part  of  the  wagoner, 
of  which  there  was  strong  evidence. 

The  defendant  took  the  ground  that  he  was  not  subject  to  the 
responsibilities  of  a  common  carrier,  but  only  answerable  for  negli- 
gence, inasmuch  as  he  was  only  employed  occasionally  to  carry  for 
hire.  But  the  Court  below  (Woodward,  President)  instructed  the 
jury  that  the  defendant  was  answerable  upon  the  principles  which 
govern  the  liabilities  of  a  common  carrier. 

Gibson,  C.  J.  The  best  definition  of  a  common  carrier  in  its  appli- 
cation to  the  business  of  this  country  is  that  which  Air.  Jeremy 
I  Law  of  Carriers,  4)  has  taken  from  Gisbourn  v.  Hurst,  1  Salk.  249 
[300],  which  was  the  case  of  one  who  was  at  first  not  thought  to  be 
a  common  carrier  only  because  he  had,  for  some  small  time  before, 
brought  cheese  to  London,  and  taken  such  goods  as  he  could  gel  to 
carry  back  into  the  country  at  a  reasonable  price;-  but  the  goods 
having  been  distrained  for  the  rent  of  a,  barn  into  which  he  had  put 
his  wagon  for  safe  keeping,  it  was  finally  resolved  that  any  man 
undertaking  to  carry  the  goods  of  all  persons  indifferently,  is.  as  to 
exemption  from  distress,  a  common  carrier.  Mr.  Justice  Story  has 
cited  this  case  (Commentaries  on  Bail.  322)  to  prove  that  a  common 
carrier  is  one  who  holds  himself  out  as  ready  to  engage  in  the  trans- 
portation of  goods  for  hire  as  a  business,  and  not  as  a  casual  occu- 


302  CARRIERS    OF    GOODS. 

patinn  pro  hac  vice.  My  conclusion  from  it  is  different.  I  take  it  a 
wagoner  who  carries  goods  for  hire  is  a  common  carrier,  whether 
transportation  be  his  principal  and  direct  business,  or  an  occasional 
and  incidental  employment.  It  is  true  the  Court  went  no  further 
than  to  say  the  wagoner  was  a  common  carrier  as  to  the  privilege  of 
exemption  from  distress;  but  his  contract  was  held  not  to  be  a  pri- 
vate undertaking  as  the  Court  was  at  first  inclined  to  consider  it,  but 
a  public  engagement,  by  reason  of  his  readiness  to  carry  for  any  one 
who  would  employ  him,  without  regard  to  his  other  avocations,  and 
he  would  consequently  not  only  be  entitled  to  the  privileges,  but  be 
subject  to  the  responsibilities  of  a  common  carrier;  indeed,  they  are 
correlative,  and  there  is  no  reason  why  he  should  enjoy  the  one 
without  being  burdened  with  the  other.  Chancellor  Kent  (2  Com- 
mentaries, 597)  states  the  law  on  the  authority  of  Eobinson  v. 
Dunmore,  2  Bos.  &  Pul.  416,  to  be  that  a  carrier  for  hire  in  a  par- 
ticular cast',  not  exercising  the  business  of  a  common  carrier,  is 
answerable  only  for  ordinary  neglect,  unless  he  assume  the  risk  of 
a  common  carrier  by  express  contract;  and  Mr.  Justice  Story  (Com. 
on  Bail.  298)  as  well  as  the  learned  annotator  on  Sir  William  Jones's 
Essay  (Law  of  Bail.  103  d.  note  3)  does  the  same  on  the  authority 
■>\  the  same  case.  There,  however,  the  defendant  was  held  liable 
on  a  special  contract  of  warranty,  that  the  goods  should  go  safe; 
and  it  was  therefore  not  material  whether  he  was  a  general  carrier 
or  not.  The  judges,  indeed,  said  that  he  was  not  a  common  carrier, 
but  one  who  had  put  himself  in  the  case  of  a  common  carrier  by  his 
agreement;  yet  even  a  common  carrier  may  restrict  his  responsibility 
by  a  special  acceptance  of  the  goods,  and  may  also  make  himself 
answerable  by  a  special  agreement  as  well  as  on  the  custom.  The 
question  of  carrier  or  not,  therefore,  did  not  necessarily  enter  into 
the  inquiry,  and  we  cannot  suppose  the  judges  gave  it  their  prin- 
cipal attention. 

But  rules  which  have  received  their  form  from  the  business  of  a 
people  whose  occupations  are  definite,  regular,  and  fixed  must  be 
applied  with  much  caution  and  no  little  qualification  to  the  business 
of  a  people  whose  occupations  are  vague,  desultory,  and  irregular. 
In  England,  one  who  holds  himself  out  as  a  general  carrier  is  bound 
to  take  employment  at  the  current  price;  bat  it  will  not  be  thought 
that  he  is  bound  to  do  so  here.  Nothing  was  more  common  formerly 
than  for  the  wagoners  to  lie  by  in  Philadelphia  for  a  rise  of  wages. 
In  England  the  obligation  to  carry  at  request  upon  the  carrier's  par- 
ticular route  is  the  criterion  of  the  profession,  but  it  is  certainly  not 
so  with  us.  In  Penns3rlvania,  we  had  no  carriers  exclusively  between 
particular  places,  before  the  establishment  of  our  public  lines  of 
transportation;  and  according  to  the  English  principle  we  could  have 
had  no  common  carriers,  for  it  was  not  pretended  that  a  wagoner 
could  be  compelled  to  load  for  any  part  of  the  Continent.  But  the 
policy  of  holding  him  answerable  as  an  insurer  was  more  obviously 


WHO   AUE    COMMON    CARRIERS.  393 

dictated  by  the  solitary  and  mountainous  regions  through  which  las 
course  for  the  most  part  lay,  than  it  is  by  the  frequented  thorough- 
fares of  England.  But  the  Pennsylvania  wagoner  was  not  alv. 
such  even  by  profession.  No  inconsiderable  part  of  the  transporta- 
tion was  done  by  the  farmers  of  the  interior,  who  took  their  produce 
to  Philadelphia,  and  procured  return  loads  for  the  retail  merchants 
of  the  neighboring  towns;  and  many  of  them  passed  by  their  ho 
with  loads  to  Pittsburg  or  Wheeling,  the  principal  poin  mbark- 

ation  on  the  Ohio.     But  no  one  supposed  they  were  not  1  ll.le 

as  common  carriers;  and  they  always  compensated  losses  as  such. 
They  presented  themselves  as  applicants  for  employment  to  ti. 
who  could  give  it;  and  were  not  distinguishable  in  their  appearai 
or  in  their  equipment  of  their  teams,  from  carriers  by  profession.  1 
can  readily  understand  why  a  carpenter,  encouraged  by  an  employer 
to  undertake  the  job  of  a  cabinet-maker,  shall  not  be  bound  to  bring 
the  skill  of  a  workman  to  the  execution  of  it;  or  why  a  farmer,  tak- 
ing his  horses  from  the  plough  to  turn  teamster  at  the  solicitation  of 
his  neighbor,  shall  be  answerable  for  nothing  less  than  good  faith; 
but  £  am  unable  to  understand  why  a  wagoner  soliciting  the  employ- 
ment of  a  common  carrier,  shall  he  prevented,  by  the  nature  of  any 
other  employment  he  may  sometimes  follow,  from  contracting  the 
responsibility  of  one.  What  has  a  merchant  to  do  with  the  private 
business  of  those  who  publicly  solicit  employment  from  him?  They 
offer  themselves  to  him  as  competent  to  perform  the  service  required, 
and,  in  the  absence  of  express  reservation,  they  contract  to  perform 
it  on  the  usual  terms,  and  under  the  usual  responsibility.  Now, 
what  is  the  case  here?  The  defendant  is  a  farmer,  but  has  occa- 
sionally done  jobs  as  a  carrier.  That,  however,  is  immaterial.  He 
applied  for  the  transportation  of  these  goods  as  a  matter  of  busi- 
ness, and  consequently  on  the  usual  conditions.  His  agency  was  not 
sought  in  consequence  of  a  special  confidence  reposed  in  him  — 
there  was  nothing  special  in  the  case  —  on  the  contrary,  the  employ- 
ment was  sought  by  himself,  and  there  is  nothing  to  show  that  it 
was  given  on  terms  of  diminished  responsibility.  There  was  evi- 
dence of  negligence  before  the  jury;  but,  independent  of  that,  we 
are  of  opinion  that  he  is  liable  as  an  insurer. 

Judgment  affirmed.1 


CITIZENS'   BANK  v.   NANTUCKET   STEAMBOAT   CO. 

2  Story  (U.  S.  C.  C),  16.     1811. 

Story,  Circuit  Justice.  .  .  .  The  suit  is  in  substance  brought  to 
recover  from  the  steamboat  company  a  sum  of  money,  in  bank  bills 
and  accounts,  belonging  to  the  Citizens'  Bank,  which  was  intru 

1  Ace.  :  Moss  v.  Bcttis,  4  Heisk.  661.      Contra:  Fish  v.  Chapman, 


304  CARRIERS   OF   GOODS. 

by  the  cashier  of  the  bank  to  the  master  of  the  steamboat,  to  be 
carried  in  the  steamboat  from  the  island  of  Nantucket  to  the  port  of 
New  Bedford,  across  the  intermediate  sea,  which  money  has  been 
lost,  and  never  duly  delivered  by  the  master.   .  .  . 

Having  stated  these  preliminary  doctrines,  which  seem  necessary 
to  a  just  understanding  of  the  case,  we  may  now  proceed  to  a  direct 
consideration  of  the  merits  of  the  present  controversy.  And  in  my 
judgment,  although  there  are  several  principles  of  law  involved  in 
it,  yet  it  mainly  turns  upon  a  matter  of  fact;  namely,  whether  the 
steamboat  company  were,  or  held  themselves  out  to  the  public  to  be, 
common  carriers  of  money  and  bank  bills,  as  well  as  of  passengers 
and  goods  and  merchandise,  in  the  strict  sense  of  the  latter  terms ; 
or  the  employment  of  the  steamboat  was,  so  far  as  the  company  are 
concerned,  limited  to  the  mere  transportation  of  passengers  and 
goods  and  merchandise  on  freight  or  for  hire;  and  money  and  bank 
bills,  although  known  to  the  company  to  be  carried  by  the  master, 
were  treated  by  them  as  a  mere  personal  trust  in  the  master  by  the 
owners  of  the  money  and  bank  bills,  as  their  private  agents,  and  for 
which  the  company  never  held  themselves  out  to  the  public  as 
responsible,  or  as  being  within  the  scope  of  their  employment  and 
business  as  carriers. 

The  ground  of  the  defence  of  the  company  is,  that,  in  point  of 
fact,  although  the  transportation  of  money  and  bank  bills  by  the 
master  was  well  known  to  them,  yet  it  constituted  no  part  of  their 
own  business  or  employment;  that  they  never  were,  in  fact, common 
carriers  of  money  or  bank  bills;  that  they  never  held  themselves  out 
to  the  public  as  such,  and  never  received  any  compensation  there- 
for; that  the  master,  in  receiving  and  transporting  money  and  bank 
bills,  acted  as  the  mere  private  agent  of  the  particular  parties,  who 
intrusted  the  same  to  him,  and  not  as  the  agent  of  the  company  or 
by  their  authority;  that,  in  truth,  he  acted  as  a  mere  gratuitous 
bailee  or  mandatary  on  all  such  occasions;  and  even  if  he  stipulated 
for,  or  received,  any  hire  or  compensation  for  such  services,  he  did 
so,  not  as  the  agent  of  or  on  account  of  the  company,  but  on  his  own 
private  account,  as  a  matter  of  agency  for  the  particular  bailors  or 
mandators.  Now,  certainly,  if  these  matters  are  substantially  made 
out  by  the  evidence,  they  constitute  a  complete  defence  against  the 
present  suit. 


DWIGHT   v.    BREWSTER. 

1  Pick.  (Mass.)  50.     1822. 

The  defendants  contended  that  they  were  not  liable  as  common 
carriers,  their  business  being  the  conveyance  of  passengers  and  their 
luggage :  that  the  taking  small  packages  was  an  affair  of  the  drivers, 


WHO   ARE    COMMON    OAERIEES.  305 

who  received  the  compensation,  and  who  were  answerable  for  negli- 
gence only,  and  that  the  proprietors  were  not  responsible,  though  it 
appeared  that  less  wages  were  paid  to  the  drivers,  in  consequi 
the  opportunity  they  had  of  earning  small  sums  of  money  in  this 
way;  whereas  large  packages  were  usually  entered  on  the  way-hill, 
and  the  proprietors  received  the  compensation  for  the  tr 
portation. 

Parker,  C.  J.  .  .  .  On  the  second  count,  which  charges  the 
defendants  as  common  carriers,  we  think  the  facts  proved  are  suffi- 
cient to  constitute  them  such.  Packages  were  usually  taken  in  the 
stage-coach  for  transportation;  large  packages  were  entered  in  the 
book  kept  for  the  proprietors,  and  compensation  taken  for  their  use. 
That  the  principal  business  was  to  carry  the  mail  and  passengers 
is  no  reason  why  the  proprietors  should  not  be  common  carriers  of 
merchandise,  etc.  A  common  carrier  is  one  who  undertakes,  for 
hire  or  reward,  to  transport  the  goods  of  such  as  choose  to  employ 
him  from  place  to  place.  This  may  be  carried  on  at  the  same  time 
with  other  business.  The  instruction  of  the  judge  in  this  particular, 
that  the  practice  of  taking  parcels  for  hire,  to  be  conveyed  in  the 
stagecoach,  constituted  the  defendants  common  carriers,  we  think 
was  right. 


FLINT,  etc.  E.  CO.    v.    WEIR. 
37  Mich.  111.     1876. 

Coolev,  C.  J.  .  .  .  The  evidence  was  put  into  the  case  by  stipu- 
lation, and  in  the  main  the  facts  are  undisputed.  It  appears  that 
the  plaintiff  took  passage  upon  the  cars  of  the  defendant  from  Detroit 
to  Saginaw,  and  that  he  had  with  him  a  trunk,  which  he  avers  con- 
tained the  articles  of  personal  property  described  in  the  declaration. 
This  trunk  has  been  lost,  but  whether  through  any  fault  of  the  rail- 
way company  is  in  dispute.  It  is,  however,  shown  by  the  plaintiff 
himself  that  both  he  and  his  trunk  were  being  carried,  not  for  hire 
and  reward,  but  gratuitously.  There  was  consequently  no  contract 
for  carriage  by  the  railway  company,  and  this  action,  which  is  in 
assumpsit,  cannot  be  maintained.  Nolton  v.  Western  R.  Corp.,  15 
N.  Y.  444,  446. 

There  can  be  no  question  that  a  railway  company  which  receives 
property  for  gratuitous  carriage  assumes,  like  any  other  gratuitous 
bailee,  certain  duties  in  respect  to  it,  and  that  a  suit  will  lie  for  a 
failure  to  perform  these  duties.  But  the  obligation  in  such  case  is 
quite  different  from  the  obligation  of  a  bailee  who,  for  a  considera- 
tion received  or  promised,  undertakes  to  carry  or  to  perform  any 
other  service  with  respect  to  the  subject  of  the  bailment.     In  the 


306  CARRIERS    OF    GOODS. 

latter  case  the  terms  of  the  contract,  if  an  express  contract  was 
made,  will  be  the  measure  of  the  duties  to  be  performed;  and  in  the 
absence  of  any  express  contract  the  law  itself  will  impose  upon  the 
bailee  a  higher  degree  of  care  and  watchfulness  than  it  demands 
of  him  who,  for  the  mere  accommodation  of  the  bailor,  undertakes 
the  charge  of  his  goods.  The  gratuitous  bailee  must  not  be  reck- 
less; he  must  observe  such  care  as  may  reasonably  be  required  of 
him  under  the  circumstances;  but  it  is  not  the  same  care  which  is 
required  of  the  bailee  who,  for  his  own  profit,  assumes  the  duty. 
This  is  elementary,  and  is  so  reasonable  that  it  requires  no  discus- 
sion. When  care  is  bargained  for  and  compensated,  something  is 
expected  and  is  demandable  beyond  what  can  be  required  of  him 
who  undertakes  a  merely  gratuitous  favor. 

Keliance  is  placed  by  the  plaintiff  upon  certain  cases  which  are 
supposed  to  have  decided  that  the  obligation  of  a  railway  company 
to  carry  safely  is  unaffected  by  the  fact  that  no  fare  was  paid. 
None  of  them  so  decides.  .   .  . 

But  we  do  not  care  to  comment  upon  these  cases,  or  to  say  more 
of  them  than  this :  that  the  right  of  recovery  in  each  of  them  where 
the  carriage  was  gratuitous  was  based  upon  the  duty  of  one  who 
undertakes  to  carry  persons,  to  carry  them  safely,  — a  duty  indepen- 
dent of  any  contract,  and  which  the  carrier  owes,  not  exclusively  to 
the  person  being  carried,  but  also  to  the  State  itself.  In  such  a 
case,  especially  if  the  mode  of  carriage  is  peculiarly  subject  to  dan- 
gerous and  destructive  accidents,  the  carrier  may  well  be  required 
to  observe  a  high  degree  of  care  and  diligence.  But  where  only 
property  is  in  question,  there  is  no  reason  why  any  different  rule 
should  be  applied  to  a  railroad  company  taking  charge  of  property 
gratuitously,  to  that  which  governs  the  relation  in  the  case  in  any 
other  gratuitous  bailment.  Nor  is  it  material  that  the  gratuitous 
carriage  of  a  trunk  was  accompanied  by  the  gratuitous  carriage  of  a 
person ;  the  duty  to  carry  the  trunk  safely  was  only  the  same  that 
the  law  would  have  imposed  had  the  trunk  been  taken  upon  a  freight 
train  gratuitously;  and  no  greater  degree  of  care  could  be  demanded 
in  one  case  thau  in  the  other.  It  may  therefore  be  conceded  that 
the  same  extreme  care  is  demandable  of  carriers  of  persons  in  all 
cases  where  injuries  to  persons  are  in  question,  and  the  concession 
will  not  in  any  manner  affect  the  present  suit. 

But  as  the  plaintiff  has  brought  his  action,  not  in  tort,  but  upon 
contract,  there  can  be  no  recovery  under  his  declaration,  and  the 
extent  of  the  duty  which,  under  the  circumstances,  was  imposed 
upon  the  railway  company  becomes  immaterial.  The  judgment  must 
be  reversed,  with  costs,  but  as  the  facts  are  not  embodied  in  a  find- 
ing by  the  circuit  judge,  so  as  to  permit  of  our  entering  final  judg- 
ment in  this  court,  a  new  trial  must  be  ordered. 


•n- 


WHO    ARE   COMMON    CARRIERS. 

PIERCE   v.    MILWAUKEE,  etc.  R.  CO. 

23  Wis.  387.     1868. 

Action  to  recover  the  value  of  eight  bundles  of  bags,  which  had 
been  in  use  for  two  seasons  in  transporting  grain  from  Lake  City, 
Minnesota,  to  Genoa,  Wisconsin,  by  way  of  the  river  and  the 
defendant's  railway.  The  complaint  alleged  that  the  bags  were 
delivered  by  the  packet  company  doing  business  on  the  river,  to  the 
defendant  at  La  Crosse;  and  that  defendant,  as  a  common  carrier, 
received  said  bags  to  be  safely  carried  by  it  over  its  railway,  and 
delivered  at  Milwaukee  to  the  plaintiff,  "for  a  reasonable  compe 
tion  to  be  paid  by  the  plaintiff  therefor."  Answer,  a  general  denial. 
At  the  trial  defendant  sought  to  avoid  liability,  as  a  common  carrier, 
for  the  loss  of  the  bags,  by  showing  a  uniform  and  long-established 
custom  of  the  river  and  railway,  that  all  bags  used  in  the  transporta- 
tion of  grain  on  said  river  or  railway  were  carried  free  of  charge, 
when  empty,  claiming  that  for  bags  so  carried  it  could  be  held 
responsible  only  in  case  of  gross  negligence. 

Paine,    J.     After   carefully    considering   the   original   briefs    of 
counsel  and  the  arguments  upon  the  rehearing,  I  have  come  to  the 
conclusion  that  the  carrying  of  the  bags  of  the  plaintiff  by  the  com- 
pany  cannot  be  considered  as  gratuitous,  whether  the  custom  was 
only    to  return  bags  free  that    had    gone  over  the   road   rilled,    or 
whether  it  was  a  general  custom  to  carry  the  bags  of  customers  free 
both  ways,  without  regard  to  the  question  whether,  at  any  particu- 
lar time,  they  were  returning  from  a  trip  on  which  they  had  passed 
over  the  road,  filled  or  not.     If  such  a  relation  were  created  by  an 
express  contract,    instead  of   being  based  upon  a  custom,  it  would 
seem  clear  that  there  would   be   a  sufficient  consideration   for  the 
agreement  to  carry  the  bags.    If  a  written  contract  should  bo  signed 
by  the  parties,  in  which  the  one  should  agree  to  give  the  company 
the  transportation  of  his  grain  at  its  usual  rates,  and  the  company 
should  agree  in  consideration  thereof  to  carry  the  grain  at  ti 
rates,  and  also  to  carry  the  bags  both  ways  whenever  the  customer 
might  desire  it,  without  any  further  charge,  there  can  be  no  dim  lit 
that  the  giving  to  the  company  his  business,  and  the   payment  of 
the  regular  freight,  would  be  held  to  constitute  the  consideration  for 
this  part  of  the  agreement  on  the  part  of  the  company.      But  if  it 
would  be  so  in  such  a  case,  it  is  equally  so  when  the  same  under- 
standing is  arrived  at  through  the  means  of  a  custom.     The  com- 
pany, by  establishing  such  a  custom,  makes  the  proposition  to  all 
persons,  that  if  they  will  become  its  customers,  it  will  carry  their 
bags  both  ways  without  any  other  compensation   than   the 
upon  the  grain.     Persons  who  become  its  customers  in  view  of  : 


308  CARRIERS    OF    GOODS. 

a  custom  do  so  with  that  understanding.  And  the  patronage  and 
the  freights  paid  are  the  consideration  for  carrying  the  bags.  The 
company,  in  making  such  a  proposition,  must  consider  that  this 
additional  privilege  constitutes  an  inducement  to  shippers  to  give  it 
their  freight.  And  it  must  expect  to  derive  a  sufficient  advantage 
from  an  increase  of  business  occasioned  by  such  inducement,  to  com- 
pensate it  for  such  transportation  of  the  bags.  And  it  ought  not  to 
be  allowed,  when  parties  have  become  its  customers  with  such  an 
understanding,  after  losing  their  bags,  to  shelter  itself  under  the 
pretext  that  the  carrying  of  the  bags  was  a  mere  gratuity,  and  it  is 
therefore  liable  only  for  gross  negligence. 

It  makes  no  difference  that  the  custom  is  described  as  being  to 
carry  the  bags  free.  In  determining  whether  they  are  really  car- 
ried "free"  or  not,  the  whole  transaction  between  the  parties  must 
be  considered.  And  when  this  is  done,  it  is  found  that  all  that  is 
meant  by  saying  that  the  empty  bags  are  carried  free,  is,  that  the 
customers  pay  no  other  consideration  for  it  than  the  freight  derived 
from  the  business  they  give  the  company.  But  this,  as  already  seen, 
is  sufficient  to  prevent  the  transportation  of  the  bags  from  being 
gratuitous.  Smith  v.  R.  R.  Co.,  24  N.  Y.  222;  see  also  Bissel  v, 
Railroad  Co.,  25  id.  442.   .  .  . 

I  can  see  no  ground  for  any  such  difficulty  as  that  suggested 
by  the  appellant's  counsel  on  the  re-argument.  He  said,  if  this 
undertaking  to  return  bags  free  was  to  be  considered  a  matter 
of  contract  on  the  part  of  the  company,  it  would  be  unable  to 
collect  its  freight  on  delivering  grain  upon  the  ground  that  its 
contract  was  not  then  completed.  But  this  could  not  be  so.  The 
company,  on  delivering  the  grain,  parts  with  the  possession  of 
the  property  to  the  shipper  or  his  consignee.  And  on  doing  that,  it 
is  of  course  entitled  to  its  freight.  And  its  agreement  to  return  the 
bags  without  further  charge,  or  to  carry  them  free  both  ways  when- 
ever its  customer  should  deliver  them  empty  for  that  purpose,  could 
not  have  the  effect  of  destroying  this  right.  The  contract  would  be 
construed  according  to  the  intention  of  the  parties.  See  Angell  on 
Carriers,  §  399,  note  3,  and  cases  cited.  And  here  it  would  be 
very  obvious  that  neither  of  the  parties  contemplated  any  relin- 
quishment by  the  company  of  its  right  to  freight  on  delivering  the 
grain.  The  transaction  for  that  purpose  would  be  distinct.  Here 
the  defendant's  evidence  showed  that  the  plaintiff  was  a  "customer." 
The  company  claims  that  he  had  complied  with  the  custom  on  his 
part,  so  as  to  make  it  applicable  to  him.  But  if  he  had  done  so,  as 
that  constitutes  a  sufficient  consideration  to  prevent  the  carrying  of 
his  bags  from  being  gratuitous,  the  company  is  liable. 

By  the  Court.    The  judgment  is  affirmed,  with  costs. 


WHO    ARE   COMMON    CARRIERS.  309 

GRAY  v.    MISSOURI   RIVER  PACKET   CO.,  Appellant. 

64  Mo.  47.     1876. 

Norton,  Judge.  This  was  an  action  in  which  defendant  is  sought 
to  be  charged  as  a  common  carrier  for  transporting  a  jack,  the  prop- 
erty of  plaintiff,  in  so  careless  a  manner  as  to  occasion  his  death. 
The  defendant  by  way  of  defence  denied  negligence  as  charged,  and 
set  up  in  his  answer  as  a  further  defence  that  the  shipment  of  the 
jack  was  to  be  made  gratuitously  and  without  compensation,  and  not 
for  hire 

The  following  instruction  asked  by  defendant  was  refused  by  the 
Court :  "  If  the  jury  believe  from  the  evidence  that  the  jack  in  con- 
troversy was  to  be  transported  from  Berlin  on  the  south  side  of  the 
Missouri  River  to  Grider's  landing  on  the  north  side  of  said  river  by 
said  defendants,  without  hire  or  reward  from  plaintiff  and  solely 
and  gratuitously  to  accommodate  plaintiff,  then  the  defendant  is  not 
liable  in  this  action  unless  the  jury  should  further  find  that  the 
defendant  was  guilty  of  gross  negligence,  which  the  Court  defines  to 
be  that  omission  of  care  which  even  the  most  inattentive  and  thought- 
less never  fail  to  take  of  their  own  concerns."  The  instruction 
asserted  a  correct  principle  of  law  as  applicable  to  mere  manda- 
taries. It  was  nevertheless  rightfully  refused  by  the  Court,  because 
under  the  view  we  take  of  the  case,  as  disclosed  in  the  record,  there 
was  no  evidence  on  which  to  base  it.  It  appears  from  the  evidence 
that  plaintiff  applied  to  one  Rider,  captain  of  the  Steamboat "  Alice," 
which  was  being  used  by  defendants  in  their  business  as  carriers,  to 
ship  his  horse  and  jack,  and  that  he  agreed  to  transport  them  for 
hiin.  He  asked  Rider  what  would  be  the  charge,  who  said  in  reply 
that  he  never  took  anything  for  less  than  a  dollar,  and  directed 
plaintiff  to  bring  on  his  stock.  Rider  testifies  as  follows:  "I 
promised  Gray  to  take  his  stock;  he  came  and  asked  me  what  I 
would  charge.  I  said  '  not  much,  if  anything.'  I  did  not  intend 
to  charge  him  anything.  I  took  him  over  purely  to  accommodate 
Gray." 

The  secret  intention  of  Rider,  unexpressed  and  locked  up  in  his 
breast,  not  to  charge  Gray  anything  for  the  transportation  of  his 
stock,  does  not  tend  to  establish  an  agreement  for  its  gratuitous 
transportation,  especially  when  connected  with  what  he  did  express, 
that  he  would  "charge  him  not  much,  if  anything."  We  apprehend 
that  if  Gray  had  been  sued  for  the  transportation  of  his  stock,  it 
would  have  been  no  reply  to  the  action  for  him  to  have  set  up  as  a 
defence  that  Rider  said  when  he  was  applied  to  for  the  price  that 
he  would  not  charge  him  much,  if  anything. 

After  an  injury  results  to  property  intrusted  to  a  common  carrier 


310  CARRIERS   OF   GOODS. 

for  transportation,  who  upon  receiving  it  for  that  purpose  declined 
to  fix  the  price  or  charge  for  the  transportation,  he  cannot  be  allowed 
to  come  in  and  defeat  a  recovery  by  saying  that  at  the  time  of  its 
reception  he  had  a  secret  intention,  unexpressed  to  the  shipper  or 
consignor,  and  not  agreed  to  by  him,  not  to  charge  anything,  and 
that  the  transportation  was  gratuitous  and  not  for  hire.  The  instruc- 
tion copied  as  well  as  the  first  instruction  asked  by  defendant  upon 
a  kindred  subject  were  therefore  properly  refused.  The  seventh 
instruction  given  on  behalf  of  plaintiff  in  so  far  as  it  contained  the. 
word  ;'  gratuitously  "  was  erroneous,  but  as  under  the  views  above 
expressed  no  injury  could  result  therefrom  to  defendant  it  is  no 
cause  for  disturbing  the  judgment. 

It  is  also  objected  that  the  court  misdirected  the  jury  by  its  third 
instruction,  in  which  they  were  told  that  if  they  found  for  plaintiff 
they  would  assess  his  damages  at  the  actual  value  of  the  jack  at  the 
time  he  was  shipped  with  the  six  per  cent  interest  from  that  time. 
It  is  a  general  rule  that  when  goods  are  delivered  by  a  common 
carrier  according  to  contract,  the  measure  of  damages  is  the  value 
of  the  goods  with  interest  from  the  day  they  should  have  been 
delivered,  less  the  freight  if  unpaid.  Sedg.  on  Dam.  424;  King  v. 
Shepherd,  3  Sto.  349;  Cushing  v.  Wells.  Fargo  &  Co.,  98  Mass.  550; 
Woodward  v.  Illinois  Central  R.  R.  Co.,  1  Bissel,  503;  Corby  v. 
Davidson,  13  Minn.  92;  Mote  v.  Chicago  &  N.  W.  R.  R.  Co.,  27 
Iowa,  22. 

In  the  case  of  Atkinson  y.  Steamboat  Castle  Garden,  28  Mo.  124, 
.Judge  Scott  remarks  "that  the  allowance  of  interest  in  these  cases 
depends  on  circumstances,  and  will  be  given  or  withheld  in  all  other 
cases  of  unliquidated  damages."  When  a  loss  occurs  without  neg- 
ligence in  cases  of  this  class,  interest  might  be  withheld.  In  the 
case  at  bar  the  negligence  as  shown  by  the  proof  was  of  the  grossest 
character,  and  the  manner  in  which  the  jack  was  thrown  down  and 
dragged  on  to  the  boat  might  well  have  subjected  the  parties  engaged 
in  it  to  a  prosecution  under  the  statute  for  cruelty  to  animals.  In 
consequence  of  it  plaintiff  had  an  animal  with  broken  limbs  thrown 
on  his  hands  to  be  cared  for,  till  he  died  from  the  injuries,  one  week 
after  they  were  inflicted.  We  think  the  circumstances  justified  the 
allowance  of  interest. 

While  the  instruction  as  to  the  measure  of  damages  is  silent  in 
regard  to  the  duty  of  the  jury  to  deduct  from  the  value  of  the  animals 
and  interest  the  freight,  the  silence  of  the  court  may  be  justified  by 
the  silence  of  the  witnesses  in  regard  to  what  it  was  worth. 

The  defendant  agreed  to  ship  the  stock  without  the  price  being 
fixed  or  agreed  upon,  and  the  promise  to  pay  what  was  reasonably 
worth  arose  by  implication  of  law,  and  in  the  absence  of  proof, 
showing  what  it  was  worth,  the  court  committed  no  error  in  not 

alluding  to  it. 

Judgment  affirmed. 


WHO    ARE    COMMON    CARRIERS.  311 

HALE   v.  THE  NEW  JERSEY   STEAM  NAVIGATION   CO. 

15  Conn.  539.     1843. 

Williams,  Ch.  J.  The  suit  was  brought  for  two  carriages  shipped 
on  board  the  "Lexington,"  against  the  defendants,  as  common 
carriers,  to  be  transported  in  said  boat,  for  hire,  from  New  York  to 
Boston  or  Providence.  The  boat  and  goods  were  destroyed  by  fire, 
in  the  Sound;  and  a  verdict  being  given  for  the  plaintiff,  the 
defendants  excepted  to  the  charge,  and  claimed :  — 

1.  That  they  were  not  common  carriers  or  subject  to  the  rules 
that  govern  common  carriers.  It  was  long  since  settled,  that  any 
man,  undertaking  for  hire  to  carry  the  goods  of  all  persons  indif- 
ferently, from  place  to  place,  is  a  common  carrier.  Gisbourn  v. 
Hurst,  1  Salk.  249  [300].  Common  carriers,  says  Judge  Kent,  consist 
of  two  distinct  classes  of  men,  viz.,  inland  carriers  by  land  or  water, 
and  carriers  by  sea;  and  in  the  aggregate  body  are  included  the 
owners  of  stage-coaches,  who  carry  goods,  as  well  as  passengers  for 
hire,  —  wagoners,  teamsters,  cartmen,  the  masters  and  owners  of 
ships,  vessels  and  all  water-craft,  including  steam  vessels  and  steam 
towboats  belonging  to  internal  as  well  as  coasting  and  foreign  navi- 
gation, lightermen  and  ferrymen.  2  Kent's  Com.  598  (2nd  ed.). 
And  there  is  no  difference  between  a  land  and  a  water  carrier,  3  Es"p. 
Ca.  127;  10  Johns.  It.  7;  Story  on  Bailments,  319,  323. 


LIVERPOOL   STEAM  CO.   v.  PHC3NIX  INS.   CO.1 
129  U.  S.  397.     1889. 

Gray,  J.  (at  page  437).   .  .  .  The  contention  that  the  appellant  is 
not  a  common  carrier  may  also  be  shortly  disposed  of. 

By  the  settled  law,  in  the  absence  of  some  valid  agreement  to  the 
contrary,  the  owner  of  a  general  ship,  carrying  goods  for  hire, 
whether  employed  in  internal,  in  coasting,  or  in  foreign  comnn 
is  a  common  carrier,  with  the  liability  of  an  insurer  against  all 
losses,  except  only  such  two  irresistible  causes  as  the  act  of  God  and 
public  enemies.  Molloy,  bk.  2,  c.  2,  sec.  2;  Bac.  Ab.  Carrier.  A  : 
Barclay  v.  Cucullay  Gana,  3  Doug.  389;  2  Kent  Com.  598,  599;  Story 
on  Bailments,  sec.  501;  The  Niagara,  21  How.  7,  23;  The  Lady 
Pike,  21  Wall.  1,  14. 

1   For  the  remainder  of  the  case,  see  page  197. 


312  CARRIERS    OF   GOODS. 

In  the  present  ease  the  Circuit  Court  has  found  as  facts:  "The 
*  Montana '  was  an  ocean  steamer,  built  of  iron,  and  performed  regu- 
lar service  as  a  common  carrier  of  merchandise  and  passengers 
between  the  ports  of  Liverpool,  England,  and  New  York,  in  the  line 
commonly  known  as  the  Guion  Line.  By  her,  and  by  other  ships 
in  that  line,  the  respondent  was  such  common  carrier.  On  March 
2,  1880,  the  '  Montana '  left  the  port  of  New  York,  on  one  of  her  regu- 
lar voyages,  bound  for  Liverpool,  England,  with  a  full  cargo,  con- 
sisting of  about  twenty-four  hundred  tons  of  merchandise,  and  with 
passengers."  The  bills  of  lading,  annexed  to  the  answer  and  to 
the  findings  of  fact,  show  that  the  four  shipments  in  question 
amounted  to  less  than  one  hundred  and  thirty  tons,  or  hardly  more 
than  one  twentieth  part  of  the  whole  cargo.  It  is  clear,  therefore, 
upon  this  record,  that  the  appellant  is  a  common  carrier,  and  is 
liable  as  such,  unless  exempted  by  some  clause  in  the  bills  of 
lading.  .  .  . 


McARTHUB  &  HUBLBERT   v.    SEARS. 
21  Wend.  (N.  Y.  Sup.  Ct.)  190.     1839. 

COWEST,   J.  ......... 

.The  defendant  was  a  common  carrier;  and  it  is  not  denied  as 
a  general  rule,  that,  to  protect  himself  from  responsibility  for  the 
loss,  he  was  bound  to  prove  that  it  arose  from  the  act  of  God,  or 
the  enemies  of  the  country.  To  the  latter,  the  proof  offered 
makes  no  pretensions ;  and  it  was  thrown  out  in  argument  that  the 
former  part  of  the  rule  has  no  application  to  carriers  navigating 
the  dangerous  waters  of  Lake  Erie.  No  such  local  exception  is 
known  to  the  law  of  England  or  Scotland,  whatever  the  general 
dangers  of  navigation.  2  Kent's  Com.  597,  607,  608,  3  ed.  Nor 
can  it  be  indulged  with  safety  either  in  principle  or  practice.  No 
such  exception  has  been  made  by  any  case  in  this  State;  nor  am 
I  aware  that  it  has  ever  been  contended  for,  though  there  have 
been  several  closely  litigated  suits,  for  losses  by  carriers  upon  our 
Great  Lakes.  I  do  not  find  that  it  has  been  recognized  by  any  case 
in  the  neighboring  States;  and  distinctions  in  favor  of  carriers  by 
water  generally,  which  have  been  countenanced  in  one  case,  Ay  mar 
v.  Astor,  6  Cowen,  266,  by  a  dictum  of  the  late  Chief  Justice  of  this 
State,  and  by  two  or  three  cases  in  Pennsylvania,  have  been  treated 
as  unfounded  anomalies,  to  be  disapproved  as  contrary  to  decisions 
in  neighboring  States,  and  even  in  our  own.  Story  on  Bailm.  323, 
§  497;  2  Kent's  Com.  607,  608,  3  ed.;  Crosby  v.  Fitch,  12  Conn.  B, 
419.  In  Elliott  v.  Bozell,  10  Johns.  B.  1,  the  rule  was  applied  to 
the  navigation  of  the  river  St.  Lawrence  in  scows,  late  in  the  season, 
between   Ogdensburgh   and   Montreal,   which   was    known    by   the 


WHO    ARE    COMMON    CARRIERS.  313 

shippers  to  be  very  dangerous:  see  also  Kemp  v.  Coughtry,  11 
Johns.  R.  107;  Colt  v.  M'Mechen,  6  Johns.  R.  160;  Harrington  v. 
Lyles,  2  Nott.  &  M.  88,  89,  and  the  cases  there  cited.  Williams 
v.  Grant,  1  Conn.  R.  487,  and  several  cases  hereafter  cited.  Bell  r. 
Heed,  4  Binn.  127,  was  like  the  one  at  bar,  a  case  of  navigation 
on  Lake  Erie,  and  proceeded  throughout  on  the  assumption  that 
defendants  must,  in  order  to  excuse  the  loss,  prove  the  utmost  care 
in  themselves  and  convince  the  jury  that  the  loss  arose  from  the  act 
of  God. 


HALL  v.    RENFRO. 
3  Mete.  (Ky.)  51.     1860. 

Duvall,  J.  .  .  .  The  testimony  shows  conclusively  that  the 
defendant  was,  at  the  time  the  alleged  loss  occurred,  the  keeper  of 
a  public  ferry,  or  that  he  held  himself  out  to  the  world  as  such. 
Upon  this  point  there  is  no  contradiction  or  even  contrariety  in  the 
proof. 

Did  he  thereby  subject  himself  to  the  obligations  and  liabilities  of 
a  common  carrier?     The  authorities  are  conclusive  of  this  question. 

In  the  case  of  Robertson  &  Co.  v.  Kennedy,  2  Dana,  430,  a 
common  carrier  is  defined  to  be,  "  one  who  undertakes,  for  hire  or 
reward,  to  transport  the  goods  of  all  such  as  choose  to  employ  him 
from  place  to  place;"  that  draymen,  cartmen,  etc.,  who  undertake 
to  carry  goods  for  hire  as  a  common  employment,  from  one  part  of  a 
town  to  another,  come  within  the  definition;  and  that  the  mode  of 
transportation  is  immaterial.  Public  ferrymen,  or  those  who  hold 
themselves  out  as  such,  are  undoubtedly  common  carriers.  'The 
owner  of  a  private  ferry  may  so  use  it  (although  on  a  road  not  opened 
by  public  authority,  or  repaired  by  public  labor)  as  to  subject  him- 
self to  the  liabilities  of  a  common  carrier ;  and  he  does  do  so  if  he 
notoriously  undertakes  for  hire,  to  convey  across  the  river,  all  pri- 
sons indifferently,  with  their  carriages  and  goods."  Angell  on  the 
Law  of  Carriers,  sec.  82. 


THE   NEAFFIE. 

1  Abbott  (U.  S.  C.  C.)i  405.     1870. 

Woods,  C.  J.  The  business  of  "The  Neaffie,"  as  the  evidence 
shows,  is  to  tow  flats  and  other  water-craft  from  one  point  to  another 
in  and  about  the  harbor  of  the  city  of  New  Orleans.  The  hire  for 
her  services  varies  according  to  the  bargain  made  at  the  time  the 
service  is  rendered. 


314  CARKIEKS    OF    GOODS. 

A  common  carrier  is  often  defined  to  be:  "One  who  undertakes 
for  hire  to  transport  the  goods  of  such  as  choose  to  employ  him  from 
point  to  point."  This  definition  is  very  broad,  and  in  its  applica- 
tion to  facts  is  subject  to  certain  limitations.  A  better  and  more 
precise  definition  is,  "One  who  offers  to  carry  goods  for  any  person 
between  certain  termini  or  on  a  certain  route,  and  who  is  bound  to 
carry  for  all  who  tender  him  goods  and  the  price  of  carriage."  Was 
"The  Xeatlie  "  a  common  carrier  under  either  of  these  definitions? 

Chief  Justice    Marshall,  in  Boyce   v.  Anderson,  2  Pet.    150,  says. 
"The   law  applicable   to   common    carriers    is    one  of   great  rigor. 
Though  to  the  extent  to  which  it  has  been  carried,  and  in  cases  to 
which  it  has  been  applied,  we  admit  its  necessity  and  its  policy, 
we  do  not  think  it  ought  to  be  carried  further  or  applied  to  new 
cases."      So  unless  the  case  of  steam-tugs  towing  boats  and  their 
cargoes  can  be   brought  strictly   within   the   definition  of  common 
carriers,   I    am    not  disposed   to    apply  to  them  the  great  rigor  of 
the  law  applicable  to  common  carriers.     Can    it   be  said   that  the 
tug-boats    plying    in    the    harbor   of   New    Orleans    undertake    to 
transport   the  goods   found  on  the  water-craft  which  they  take  in 
tow?     It  appears  to  me  that  it  is  the  boat  in  which  the  goods  are 
put  that  undertakes  to  transport  them.     The  tug  only  furnishes  the 
motive-power.      It   is   like  the  case  of  the  owner  of  a  wagon  laden 
with  merchandise  hiring  another  to  hitch  his  horses  to  the  wagon  to 
draw  it  from  one  point  to  another,  the  owner  of  the  wagon  riding  in 
it,  and  having  charge  of  the  goods.     In   such  a  case,  could  it  be 
claimed  with  any  show  of  reason  that  the  owner  of  the  team  was  a 
common  carrier?     The  reason  of  the  law  which  imposes  upon  the 
common  carrier  such   rigorous  responsibility  fails   in   such  a  case. 
The  tug-boats  plying  in    New   Orleans   harbor  do  not  receive  the 
property  into  their  custody,  nor  do  they  exercise  any  control  over 
it  other  than  such  as  results  from  the  towing  of  the  boat  in  which 
it  is  laden.     They  neither  employ  the  master  and  hands  of  the  boat 
towed,  nor  do  they  exercise  any  authority  over  them  beyond  that  of 
occasionally  requiring  their  aid  in  governing  the  flotilla.     The  boat, 
goods,  and  other  property  remain  in  charge  and  care  of  the  master 
and  hands  of  the  boat  towed.      In  case  of  loss  by  fire  or  robbery, 
without  any  actual  default  on  the  part  of  the  master  or  crew  of  the 
tow-boat,  it  can  be  hardly  contended  they  would  be  answerable,  and 
vet  carriers  would  be  answerable  for  such  loss. 

That  tow-boats  are  not  common  carriers  has  been  held  in  the  fol- 
lowing eases:  Caton  v.  Rumney,  13  Wend.  387;  Alexander  v.  Greene, 
3  Hill,  9;  Wells  v.  Steam  Navigation  Co. ,  2  Comst.  204;  Pennsyl- 
vania, D.  &  M.  Steam  Nav.  Co.  v.  Dandridge,  8  Gill  &  J.  248; 
Leonard  v.  Hendrickson,  18  Penn.  St.  40.  In  Vanderslice  r.  The 
Superior,  13  Law  Rep.  399,  Mr.  Justice  Kane  held  a  steam  tow- 
boat  liable  as  a  common  carrier;  but  when  the  case  came  before  the 
Circuit  Court,  Mr.  Justice  Grier  said  he  could  not  assent  to  the  doc* 


WHO    ARE    COMMON    CABBIEE8.  oig 

trine.     I  am   aware  that  a  contrary  doctrine  had  been  applied  bv 
the  Supreme  Court  of  Louisiana  to  steam-tugs  towin  the 

city  of   New  Orleans    and  the    mouth    of    the    Mississippi     ]; 
These  tow-"boats  are  distinguishable  from  those  plying  in  the  har- 
bor of  New  Orleans;  but  if  it  were  otherwise,  I  think  the 
of  authority  and  reason  is  with  those  who  hold  tow-boats  not  v 
eoinmon  carriers.1     .     .     . 


COUP  v.    WABASH,  etc.  RY.    CO. 

5G  Mich.  111.     1885. 

Campbell,  J.  Plaintiff,  who  is  a  circus  proprietor,  sued  defend- 
ant as  a  carrier  for  injuries  to  cars  and  equipments,  and  to  persons 
and  animals  caused  by  a  collision  of  two  trains  made  up  of  his  cir- 
cus cars,  while  in  transit  through  Illinois.  The  court  below  held 
defendant  to  the  common-law  liability  of  a  common  carrier,  and  held 
there  was  no  avoiding  liability  by  reason  of  a  special  contract  un< 
which  the  transportation  was  directed.  The  principal  questions 
raised  on  the  trial  arose  out  of  discussions  concerning  the  nature 
defendant's  employment,  and  questions  of  damage.  Some  other 
points  also  appeared.  In  the  view  which  we  take  of  the  case,  the 
former  become  more  important,  and  wijl  be  first  considered. 

Plaintiff  had  a  large  circus  property,  including  horses,  wild  ani- 
mals,   and   various    paraphernalia,    with   tents   and   appliances    i 
exhibition.   .  .   . 

The  defendant  company  has  an  organized  connection,  under  the 
same  name,  with  railways  running  between  Detroit  and  St.  Louis, 
through  Indiana  and  Illinois.     On  the  25th  of  July,  1882,  a  written 
contract  was  made  at  St.  Louis  by  defendant's  proper  agent  with 
plaintiff  to  the  following  effect.     Defendant  was  to  furnish  men  and 
motive-power  to  transport  the  circus  by  train  of  one  or  more  divi- 
sions, consisting  of  twelve  flat,  six  stock,  one  elephant,  one         \    je, 
and  three  passenger  coaches,    being  in  all  twenty-three  cars  from 
Cairo  to  Detroit  with  privilege  of  stopping  for  exhibition  at  three 
places  named,  fixing  the  time  of  starting  from  each  place  of  exhibi- 
tion,   leaving  Cairo  August  19th,   Delphi.    Augusl    21st,  imbia 
City,  August  22d,  exhibiting  at  Detroit  August  23d,  and  then  t>> 
turned  over  to  the  Great   Western  Transfer   Line   boats.     Plaintiff 
was  to  furnish  his  own  cars,  and  two  from  anothe: 
in  good  condition  and  running  order.     It  was  agreed  that  "fort! 
use  of  the  said  machinery,  motive-power,  and  men,  and  the  privileg< 
above  enumerated,  plaintiff  should  pay  $400  for  the  run  t"  Delphi, 
$175  to  Columbia  City,  and  $225  to  Detroit,  each  sum  to  be  paid 
before  leaving  each  point  of  departure." 

It  was  further  expressly  stipulated   that   the  agreement  was  not 

1  Ace.  :  Varble  v.  Bigley,  14  Bush  (77  Ky.),  098  ;  29  Am.  R.  436  (187'.»). 


316  CARRIERS    OF    GOODS. 

made  with  defendant  as  a  carrier,  but  merely  "as  a  hire  of  said 
machinery,  motive-power,  and  right  of  way,  and  the  men  to  move 
and  work  the  same ;  the  same  to  be  operated  under  the  management, 
direction,  orders,  and  control  of  said  party  of  the  second  part  (plain- 
tiff) or  his  agent,  as  in  his  possession,  and  by  means  of  said  em- 
ployees as  his  agents,  but  to  run  according  to  the  rules,  regulations, 
and  time-tables  of  the  said  party  of  the  first  part." 

The  contract  further  provides  that  defendant  should  not  be  respon- 
sible for  damage  by  want  of  care  in  the  running  of  the  cars  or  other, 
wise,  and  for  stipulated  damages  in  case  of  any  liability.  It  also 
provided  for  transporting  free  on  its  passenger  trains  two  advertis- 
ing cars  and  advertising  material. 

The  plaintiff's  cars  were  made  up  in  two  trains  at  Cairo,  and 
divided  to  suit  instructions.  The  testimony  tended  to  prove  that 
two  cars  were  added  to  the  forward  train  by  order  of  plaintiff's 
agent,  but  in  the  view  we  take  the  question  who  did  it  is  not  impor- 
tant. The  forward  train  was  for  some  cause  on  which  there  was 
room  for  argument  brought  to  a  stand-still,  and  run  into  by  the 
other  train  and  considerable  damage  done  by  the  collision. 

Defendant  insisted  that  plaintiff  made  out  no  cause  for  recovery, 
and  that  the  contract  exempted  them.  Plaintiff  claimed,  and  the 
court  below  held  the  exemption  incompetent. 

Unless  this  undertaking  was  one  entered  into  by  the  defendant  as 
a  common  carrier,  there  is  very  little  room  for  controversy.  The 
price  was  shown  to  be  only  ten  per  cent  of  the  rates  charged  for 
carriage,  and  the  whole  arrangement  was  peculiar.  If  it  was  not  a 
contract  of  common  carriage,  we  need  not  consider  how  far  in  that 
character  contracts  of  exemption  from  liabilit}^  may  extend.  In  our 
view  it  was  in  no  sense  a  common  carrier's  contract,  if  it  involved 
any  principle  of  the  law  of  carriers  at  all. 

The  business  of  common  carriage,  while  it  prevents  any  right  to 
refuse  the  carriage  of  property  such  as  is  generally  carried,  implies, 
especially  on  railroads,  that  the  business  will  be  done  on  trains  made 
up  by  the  carrier  and  running  on  their  own  time.  It  is  never  the 
duty  of  the  carrier,  as  such,  to  make  up  special  trains  on  demand,  or 
to  drive  such  trains  made  up  entirely  by  other  persons  or  by  their 
cars.  It  is  not  important  now  to  consider  how  far,  except  as  to 
owners  of  goods  in  the  cars  forwarded,  the  reception  of  cars,  loaded 
or  unloaded,  involves  the  responsibility  of  carriers  as  to  the  owners 
of  the  cars  as  such.  The  duty  to  receive  cars  of  other  persons,  when 
existing,  is  usually  fixed  by  the  railroad  laws,  and  not  by  the  com- 
mon law.  But  it  is  not  incumbent  upon  companies  in  their  duty  as 
common  carriers  to  move  such  cars  except  in  their  own  routine. 
They  are  not  obliged  to  accept  and  run  them  at  all  times  and  seasons, 
and  not  in  the  ordinary  course  of  business. 

The  contract  before  us  involves  very  few  things  ordinarily  under- 
taken by  carriers.     The  trains  were  to  be  made  up  entirely  of  cars 


WHO    ARE  .COMMON    CARRIERS.  317 

which  belonged  to  plaintiff,  and  which  the  defendant  neither  loa 
nor  prepared,  and  into  the  arrangement  of  which,  and  the  stowing 
and  placing  of  their  contents,  defendant  had  no  power  to  meddle. 
The  cars  contained  horses  which  were  entirely  under  control  of 
plaintiff,  and  which,  under  any  circumstances,  may  involve  special 
risks.  They  contained  an  elephant,  which  might  very  easily  involve 
difficulty,  especially  in  case  of  accident.  They  contained  wild  ani- 
mals which  defendant's  men  could  not  handle,  and  which  might  also 
become  troublesome  and  dangerous.  It  has  always  been  held  that  it 
is  not  incumbent  on  carriers  to  assume  the  burden  and  risks  of  such 
carriage. 

The  trains  were  not  to  be  run  at  the  option  of  the  defendant,  but 
had  short  routes  and  special  stoppages,  and  were  to  be  run  on  some 
part  of  the  road  chiefly  during  the  night.  They  were  to  wait  over 
for  exhibitions,  and  the  times  were  fixed  with  reference  to  these 
exhibitions,  and  not  to  suit  the  defendant's  convenience.  There  was 
also  a  divided  authority,  so  that  while  defendant's  men  were  to 
attend  to  the  moving  of  the  trains,  they  had  nothing  to  do  with 
loading  and  unloading  cars,  and  had  no  right  of  access  or  regulation 
in  the  cars  themselves. 

It  cannot  be  claimed  on  any  legal  principle  that  plaintiff  could,  as 
a  matter  of  right,  call  upon  defendant  to  move  his  trains  under  such 
circumstances  and  on  such  conditions,  and  if  he  could  not,  then  he 
could  only  do  so  on  such  terms  as  defendant  saw  fit  to  accept.  It 
was  perfectly  legal  and  proper,  for  the  greatly  reduced  price,  and 
with  the  risks  and  trouble  arising  out  of  moving  peculiar  cars  and 
peculiar  contents  on  special  excursions  and  stoppages,  to  stipulate 
for  exemption  from  responsibility  for  consequences  which  might 
follow  from  carelessness  of  their  servants  while  in  this  special 
employment.  How  far,  in  the  absence  of  contract,  they  would  be 
liable  in  such  a  mixed  employment,  where  plaintiff's  men  as  well  as 
their  own  had  duties  to  perform  connected  with  the  movement  and 
arrangement  of  the  business,  we  need  not  consider. 

It  is  a  misnomer  to  speak  of  such  an  arrangement  as  an  agreement 
for  carriage  at  all.  It  is  substantially  similar  to  the  business  of 
towing  vessels,  which  has  never  been  treated  as  carriage.  It  is, 
although  on  a  larger  scale,  analogous  to  the  business  of  furnishing 
horses  and  drivers  to  private  carriages.  Whatever  may  be  the  lia- 
bility to  third  persons  who  are  injured  by  carriages  or  trains,  the 
carriage-owner  cannot  hold  the  persons  he  employs  to  draw  his 
vehicles  as  carriers.  We  had  before  us  a  case  somewhat  resembling 
this  in  more  or  less  of  its  features  in  Mann  v.  White  River  Log  & 
Booming  Co.,  46  Mich.  38,  where  it  was  sought  to  make  a  carrier's 
liability  attach  to  log-driving,  which  we  held  was  not  permissible. 
A.11  of  these  special  undertakings  have  peculiar  features  of  their 
own,  but  they  cannot  be  brought  within  the  range  of  common 
carriage. 


318  CARRIERS    OF   GOODS. 

It  is  therefore  needless  to  discuss  the  other  questions  in  the  case, 
which  involve  several  rulings  open  to  criticism.  We  think  the 
defendant  was  not  liable  in  the  action,  and  it  should  have  been 
taken  from  the  jury,  and  a  verdict  ordered  of  no  cause  of  action. 

The  judgment  must  be  reversed  and  a  new  trial  granted. 


BUCKLAND  v.   ADAMS   EXPRESS   CO. 
97  Mass.  1-21.     18G7. 

Contract  to  recover  the  value  of  a  case  of  pistols.  In  the  Superior 
Court  judgment  was  entered  for  the  plaintiffs  on  agreed  facts;  and 
the  defendants  appealed  to  this  court. 

Bigelow,  C.  J.  We  are  unable  to  see  any  valid  reason  for  the 
suggestion  that  the  defendants  are  not  to  be  regarded  as  common 
carriers.  The  name  or  style  under  which  they  assume  to  carry  on 
their  business  is  wholly  immaterial.  The  real  nature  of  their  occu- 
pation and  of  the  legal  duties  and  obligations  which  it  imposes  on 
them  is  to  be  ascertained  from  a  consideration  of  the  kind  of  service 
which  they  hold  themselves  out  to  the  public  as  ready  to  render  to 
those  who  may  have  occasion  to  employ  them.  Upon  this  point 
there  is  no  room  for  doubt.  They  exercise  the  employment  of 
receiving,  carrying,  and  delivering  goods,  wares,  and  merchandise 
for  hire  on  behalf  of  all  persons  who  may  see  tit  to  require  their 
services.  In  this  capacity  they  take  property  from  the  custody  of 
the  owner,  assume  entire  possession  and  control  of  it,  transport  it 
from  place  to  place,  and  deliver  it  at  a  point  of  destination  to  some 
consignee  or  agent  there  authorized  to  receive  it.  The  statement 
embraces  all  the  elements  essential  to  constitute  the  relation  of  com- 
mon carriers  on  the  part  of  the  defendants  towards  the  persons  who 
employ  them.  Dwight  v.  Brewster,  .1  Pick.  50,  53  [304]  ;  Lowell 
Wire  Fence  Co.  v.  Sargent,  8  Allen,  189;  2  Etedfield  on  Railways, 
1-1  (i. 

But  it  is  urged  in  behalf  of  the  defendants  that  they  ought  not  to 
be  held  to  the  strict  liability  of  common  carriers,  for  the  reason  that 
thr  contract  of  carriage  is  essentially  modified  by  the  peculiar  mode 
in  which  the  defendants  undertake  the  performance  of  the  service. 
I  he  main  ground  on  which  this  argument  rests  is,  that  persons  exer- 
cising the  employment  of  express  carriers  or  messengers  over  rail- 
roads and  by  steamboats  cannot,  from  the  very  nature  of  the  case. 
exercise  any  care  or  control  over  the  means  of  transportation  which 
they  are  obliged  to  adopt;  that  the  carriages  and  boats  in  which  the 
merchandise  intrusted  to  them  is  placed,  and  the  agents  or  servants 
by  whom  they  are  managed,  are  not  selected  by  them  nor  subject  to 
their  direction  or  supervision;  and  that  the  rules  of  common  law, 
regulating  the  duties  and  liabilities  of  carriers,  having  been  adapted 


WHO    ARE    COMMON    OABRIEES.  ;;pj 

to  a  different  mode  of  conducting  business,  by  which  the  carrier 

enabled  to  select  his  own  servants  and  vehicles  and  to 
personal  care  and  oversight  of  them,  arc  wholly  inapplicable  to  a 
contract  of  carriage  by  which  it  is  understood  between  the  par 
that  the  service  is  to  be  performed,  in  part,  at  least,,by  m<  u 
agencies  over  which  the  carrier  can  exercise  do  managemenl  or  con- 
trol whatever.  P>nt  this  argument,  though  specious,  is  unsound. 
Its  fallacy  consists  in  the  assumption  that  at  common  law,  in 
the  absence  of  any  express  stipulation,  the  contract  with  an  owner 
or  consignor  of  goods  delivered  to  a  carrier  for  transportation  ne 
sarily  implies  that  they  are  to  be  carried  by  the  party  with  whom 
the  contract  is  made,  or  by  servants  or  agents  under  his  imme- 
diate direction  and  control.  But  such  is  not  the  undertaking  of 
the  carrier.  The  essence  of  the  contract  is  that  the  goods  are  to 
be  carried  to  their  destination  unless  the  fulfilment  of  this  under- 
taking is  prevented  by  the  act  of  (rod  or  the  public  enemy.  This, 
indeed,  is  the  whole  contract,  whether  the  goods  are  carried  by  land 
or  water,  by  the  carrier  himself  or  by  agents  employed  by  him.  The 
contract  does  not  imply  a  personal  trust,  which  can  be  executed  only 
by  the  contracting  party  himself  or  under  his  supervision  by  agents 
and  means  of  transportation  directly  and  absolutely  within  his  con- 
trol. Long  before  the  discovery  of  steam-power,  a  carrier  who 
undertook  to  convey  merchandise  from  one  point  to  another  was 
authorized  to  perform  the  service  through  agents  exercising  an  inde- 
pendent employment,  which  they  carried  on  by  the  use  of  their  own 
vehicles  and  under  the  exclusive  care  of  their  own  servants.  It  cer- 
tainly never  was  supposed  that  a  person  who  agreed  to  carry  goods 
from  one  place  to  another  by  means  of  wagons  or  stages  could  escape 
liability  for  the  safe  carriage  of  the  property  over  any  part  of  the 
designated  route  by  showing  that  a  loss  happened  at  a  time  when 
the  goods  were  placed  by  him  in  vehicles  which  he  did  not  own.  or 
which  were  under  the  charge  of  agents  whom  he  did  not  select  or 
control.  The  truth  is  that  the  particular  mode  or  agency  by  which 
the  service  is  to  be  performed  does  not  enter  into  the  contract  of 
carriage  with  the  owner  or  consignor.  The  liability  of  the  carrier 
at  common  law  continues  during  the  transportation  over  the  entire 
route  or  distance  over  which  he  has  agreed  to  carry  the  propi 
intrusted  to  him.  And  there  is  no  good  reason  for  making  any  dis- 
tinction in  the  nature  and  extent  of  this  liability  attaching  to  car- 
riers, as  between  those  who  undertake  to  transport  property  by  the 
use  of  the  modern  methods  of  conveyance,  and  those  who  performed 
:;  like  service  in  the  modes  formerly  in  use.  IT  a  person  a-sumes  to 
do  the  business  of  a  common  carrier,  lie  can,  if  he  sees  fit,  confine  it 
within  such  limits  that  it  may  be  done  under  his  personal  care 
supervision  or  by  agents  whom  he  can  select  and  control.  But  it  he 
undertakes  to  extend  it  further,  he  must  either  restrict  his  liability 
by  a  special  contract  or  bear  the  responsibility  which  the  law  affixes 


320  CARRIERS    OF   GOODS. 

to  the  species  of  contract  into  which  he  voluntarily  enters.  There 
is  certainly  no  hardship  in  this,  because  he  is  bound  to  take  no 
greater  risk  than  that  which  is  imposed  by  law  on  those  whom  he 
employs  as  his  agents  to  fulfil  the  contracts  into  which  he  has 
entered. 

It  is  not  denied  that  in  the  present  case  the  goods  were  lost  or 
destroyed  while  they  were  being  carried  over  a  portion  of  the  route 
embraced  in  the  contract  with  the  plaintiffs,  and  before  they  had 
reached  the  point  to  which  the  defendants  had  agreed  to  carry  them. 
It  is  not  a  case  where  the  agreement  between  the  parties  was  that 
the  merchandise  was  to  be  delivered  over  by  the  defendants  to  other 
carriers  at  an  intermediate  point,  thence  to  be  transported  over  an 
independent  route  to  the  point  of  destination  without  further  agency 
on  the  part  of  the  defendants.  The  stipulation  was  that  the  defend- 
ants should  carry  the  property  from  the  place  where  they  received  it 
to  the  point  where  it  was  to  be  delivered  into  the  hands  of  the  con- 
signee. The  loss  happened  before  the  defendants  had  fulfilled  their 
promise. 

Judgment  for  plaintiff.1 


KOBERTS   v.    TURNER. 
12  Johns.  (N.  Y.  Sup.  Ct.)  231.     1814. 

This  was  an  action  on  the  case,  against  the  defendant,  as  a 
common  carrier. 

The  defendant  resided  at  Utica,  and  pursued  the  business  of  for- 
warding merchandise  and  produce  from  Utica  to  Schenectady  and 
Albany.  The  ordinary  course  of  this  business  is,  for  the  forwarder 
to  receive  the  merchandise  or  produce  at  his  store,  and  send  it  by 
the  boatman,  who  transports  goods  on  the  Mohawk  River,  or  by 
wagon  to  Schenectady  or  Albany,  for  which  he  is  paid  at  a  certain 
rate  per  barrel,  etc. ;  and  his  compensation  consists  in  the  difference 
between  the  sum  which  he  is  obliged  to  pay  for  transportation,  and 
that  which  he  receives  from  the  owner  of  the  goods. 

The  defendant  received  from  the  plaintiff,  who  resided  in  Caze- 
novia,  in  Madison  County,  by  Aldrich,  his  agent,  twelve  barrels  of 
pot  ashes,  to  be  forwarded  to  Albany,  to  Trotter;  the  ashes  were 
put  on  board  a  boat,  to  be  carried  down  the  Mohawk  to  Schenectady, 
and  whilst  proceeding  down  the  river,  the  boat  ran  against  a  bridge 
and  sunk,  and  the  ashes  were  thereby  lost. 

The  defendant's  price  for  forwarding  goods  to  Schenectady  was 

1  Defendant's  attorney  relied  in  argument  on  Roberts  v.  Turner,  which  follows. 


WHO    ARE    COMMON    CARRIERS.  321 

twelve  shillings  per  barrel,  and  the  price  which  he  had  agreed  to 
for  the  transporting  the  goods  in  question  to  that  phut-  wa& 
shillings;  the  defendant  had  no  interest  in  the  freight  of  the  g< 
and  was  not  concerned  as  an  owner  in  the  boats  employed  in 
carriage  of  merchandise. 

The  judge  being  of  the  opinion  that  the  testimony  did  not  make 
out  the  defendant  to  be  a  common  carrier,  nonsuited  the  plaintiff* 
and  a  motion  was  made  to  set  aside  the  nonsuit. 

Spencer,  J.  On  the  fullest  reflection,  I  perceive  no  grounds  for 
changing  the  opinion  expressed  at  the  circuit.  The  defendant  is  in 
no  sense  a  common  carrier,  either  from  the  nature  of  his  busin 
or  any  community  of  interest  with  the  carrier.  Aldrich,  who.  as 
the  agent  of  the  plaintiff,  delivered  the  ashes  in  question  to  the 
defendant,  states  the  defendant  to  be  a  forwarder  of  merchandise 
and  produce  from  Utica  to  Schenectady  and  Albany:  and  that  he 
delivered  the  ashes,  with  instructions  from  the  plaintiff  to  send  them 
to  Colonel  Trotter. 

The  case  of  a  carrier  stands  upon  peculiar  grounds.  He  is  held 
responsible  as  an  insurer  of  the  goods,  .to  prevent  combinations, 
chicanery,  and  fraud.  To  extend  this  rigorous  law  to  persons  stand- 
ing in  the  defendant's  situation,  it  seems  to  me,  would  be  unjust 
and  unreasonable.  The  plaintiff  knew,  or  might  have  known  (for 
his  agent  knew),  that  the  defendant  had  no  interest  in  the  freight 
of  the  goods,  owned  no  part  of  the  boats  employed  in  the  carriage  of 
goods,  and  that  his  only  business  in  relation  to  the  carriage  of  goods 
consisted  in  forwarding  them.  That  a  person  thus  circumstanced 
should  be  deemed  an  insurer  of  goods  forwarded  by  him,  an  insurer 
too,  without  reward,  would,  in  my  judgment,  be  not  only  without 
a  precedent,  but  against  all  legal  principles.  Lord  Kenyon,  in  treat- 
ing of  the  liability  of  a  carrier  (5  T.  R.  394),  makes  this  criterion 
to  determine  his  character;  whether,  at  the  time  when  the  accident 
happened,  the  goods  were  in  the  custody  of  the  defendants  as  com- 
mon carriers.  In  Garside  v.  The  Proprietors  of  the  Trent  and 
Mersey  Navigation  (4  T.  R.  581),  the  defendants,  who  were  common 
carriers,  undertook  to  carry  goods  from  Stoneport  to  Manchester, 
and  thence  to  be  forwarded  to  Stockport,  and  were  put  into  the 
defendants'  warehouse,  and  burnt  up  before  an  opportunity  arrived 
to  forward  them.  Lord  Kenyon  held,  the  defendants' character  of 
carriers  ceased  when  the  goods  were  put  into  the  warehouse.  This 
case  is  an  authority  for  saying  that  the  responsibilities  of  a  common 
carrier  and  forwarder  of  goods  rest  on  very  different  principles. 

In  the  present  case,  the  defendant  performed  his  whole  undertak- 
ing; he  gave  the  ashes  in  charge  to  an  experienced  and  faithful 
boatman. 


322  CARRIERS    OF    GOODS. 

TRANSPORTATION   CO.    v.    BLOCH  BROTHERS. 
86  Tenn.  392.     1888. 

Caldwell,  J.  This  action  was  brought  in  the  Circuit  Court  of 
Davidson  County,  by  Bloch  Bros.,  against  the  Merchants'  Dispatch 
Transportation  Co.,  as  a  common  carrier,  to  recover  the  value  of  a 
certain  case  of  merchandise.  Verdict  and  judgment  were  for  the 
plaintiffs,  and  the  defendant  has  appealed  in  error.   .  .   . 

The  contention  of  the  defendant  in  the  court  below  was,  that  these 
stipulations  in  the  bill  of  lading  relieved  it  from  liability  for  the 
loss  of  plaintiffs'  goods,  and  the  charge  of  the  Trial  Judge  with 
respect  thereto  is  now  assailed  as  erroneous.   .   .   . 

This  instruction  properly  treats  the  defendant  as  a  common  car- 
rier. The  duties  which  it  undertakes,  and  which  it  holds  itself  out 
to  the  public  as  willing  to  undertake  and  perform,  give  it  that  char- 
acter. In  very  many  cases  it  has  been  expressly  adjudged  to  be  a 
common  carrier,  and  in  others  such  has  been  assumed  to  be  its  char- 
acter without  a  discussion  of  the  question.  We  cite  a  few  of  these 
cases:  Merchants'  Dispatch  Transportation  Co.  v.  Comforth,  3  Colo. 
280  (25  Am.  R.  757);  45  Iowa,  470;  47  Iowa,  229;  id.  247;  id.  262; 
80  111.  473;  89  111.  43;  id.  152. 

The  text-writers  say  that  despatch  companies  are  common  carriers, 
and  class  them  with  express  companies  because  of  the  many  points 
of  similarity  in  their  business,  and  the  fact  that  they  alike  generally 
use  the  vehicles  of  others  in  the  transportation  of  freight.  Lawson 
on  Contracts  of  Carriers,  sec.  233;  Hutchinson  on  Carriers,  sec.  72. 


c.    Baggage  of  Passengers. 

ORANGE   COUNTY  BANK  v.   BROWN. 

9  Wend.  (N.  Y.  Sup.  Ct.)  85.     1832. 

This  was  an  action  on  the  case. 

The  suit  was  brought  against  the  defendants  as  the  owners  of  a- 
steamboat  called  the  "Constellation,"  for  the  loss  of  a  trunk  belong 
ing  to  a  passenger  on  board  the  boat,  who  was  the  agent  of  the 
plaintiffs  and  intrusted  with  the  carriage  of  $11,250  from  the  city 
of  New  York  to  the  banking  house  of  the  plaintiffs,  in  the  village 
of  Goshen.  The  declaration  contained  a  count  reciting  that  the 
defendants,  on  the  15th  of  November,  1827,  were  the  owners  or  pro- 


WHO    ARE    COMMON    CARRIERS.  323 

prietors  of  a  steamboat  called   the  "Constellation,"   navigate 
the  Hudson  River,  between  the  cities  of  New  York  and  Albany,  for 
the  carriage,  conveyance,  and  transportation  of  passengers  and  their 
baggage  and  effects,  for  hire  and  reward,  commonly  called  pass 
money;  touching  upon  the  passage  from  New  York  to  Albany  at 
village  of  Newburgh,  for  the  purpose  of  landing  passengers  and  their 
baggage  or  effects;  that  on  the  said  loth  day  of  November,  in  the 
year,   etc.,  one  William  Phillips,  as  the  agent  of  the  plaintiffs,  at 
the  special  instance  and  request  of  the  defendants,  delivered  to  I ; . 
G.  Cruttenden,  then  being  master  of  the  "Constellation,"  the  trunk 
or  baggage  of  him  the  said  William  Phillips,  containing  divers  goods 
and  chattels  of  them  the  plaintiffs,  —  to  wit,  bank  notes  amounting  in 
the  aggregate  to  the  sum  of  $11,250,  — to  be  safely  and  securely  car- 
ried and  conveyed  in  the  said  vessel  from  the„city  of  New  York  to 
the  village  of  Newburgh,  for  hire  and  reward  then  and  there  paid  to 
Cruttenden  as  such  master  of  the  boat  and  agent  of  defendants,  in 
that  behalf.     It  is  then  averred  that  although  the  vessel  on  the  same 
day  arrived  at  Newb'urgh,  yet  that  the  defendants  and  their  agent, 
not  regarding  their  duty,  did  not  deliver  the  said  trunk  or  baggage 
containing  the  said  bank  notes   to  the  said  Phillips,  but  so  negli- 
gently, carelessly,  and  improperly  conducting  the  carriage  and  con- 
veyance  thereof  that  for  want  of  due  care  in  the  defendants  and 
their   agents,    the  trunk  containing  the  bank  notes  aforesaid   was 
wholly  lost  to  the  plaintiffs,  to  wit,  at,   etc.     The  declaration  con- 
tained various  other  counts.     The  defendants  pleaded  the  general 
issue. 

On  the  trial  of  the  cause,  William  Phillips  was  sworn  as  a  witness 
on  the  part  of  the  plaintiffs,  and  testified  that  in  November,  18L'7.  he 
went  on  board  the  "Constellation"  at  the  city  of  New  York,  with 
the  intention  of  proceeding  to  Newburgh,  that  on  the  wharf  near  the 
boat  he  met  Cruttenden,  the  master  of  the  boat,  and  told  him  that 
he  had  a  trunk  of  importance  which  he  wanted  to  put  into  the  office. 
Cruttenden  answered,  "as  soon  as  we  get  under  weigh;"  to  which 
he  replied  that  he  wanted  it  in  immediately,  as  he  wished  to  go 
ashore.  Cruttenden  then  told  him  to  go  to  the  young  man  or  mate. 
He  accordingly  went  to  the  office  and  spoke  to  a  young  man  who 
appeared  to  be  doing  business  there,  and  told  him  he  had  a  trunk  of 
importance  which  he  wished  to  put  into  the  office.  The  young  man 
made  the  same  answer  as  the  master:  "as  soon  as  we  get  under 
weigh."  The  witness  said  he  wished  to  go  ashore,  and  was  then 
told,  "Come  round  to  the  door;  you  may  put  it  there,"  pointing  to  a 
place  behind  the  door.  The  witness  deposited  the  trunk  in  the  jilace 
pointed  out,  and  went  on  shore,  and  was  absent  eight  or  ten  minutes. 
While  on  shore  he  bought  some  oranges,  which  lie  held  in  a  band- 
kerchief  until  the  boat  got  under  weigh,  when  lie  went  to  the  oflice 
to  put  the  oranges  into  the  trunk,  and  found  that  it  was  gone.  He 
immediately  apprised  the  master  and  the  clerk  of  the  fact;  search 


324  CAKKIEKS    OF    GOODS. 

was  made,  but  the  trunk  could  not  be  found.  He  testified  that  there 
were  in  his  trunk,  when  he  went  on  board,  seven  sealed  packages  of 
bank  notes,  received  by  him  from  the  first  teller  of  the  Bank  of 
America,  and  which  he  had  been  requested  by  the  president  of  the 
Bank  of  Orange  County  to  carry  to  that  bank  from  the  Bank  of 
America.  When  he  received  the  packages,  the  president  of  the 
Bank  of  Orange  County  told  him  that  it  was  his  practice  when  he 
had  charge  of  packages  of  money  to  carry  to  Goshen,  to  deliver  them 
to  the  captain  of  the  steamboat  immediately  upon  going  on  board, 
and  advised  him  to  follow  the  same  course,  which  he,  the  witness, 
considered  as  a  direction  to  him,  and  acted  accordingly.  On  his 
cross-examination,  he  said  he  did  not  inform  the  clerk  that  his  trunk 
contained  bank  bills,  nor  did  he  tell  Cruttenden,  the  master  of  the 
boat,  that  it  contained  anything  more  than  his  own  property;  nor 
did  he  tell  him  that  he  was  going  to  Newburgh.  It  was  satisfac- 
torily proved  that  the  packages  contained  $11,250. 

The  plaintiffs  having  rested,  the  defendants^  counsel  moved  for  a 
nonsuit  on  various  grounds.  The  presiding  judge  ruled  that  the 
liability  of  the  defendants  rested  on  the  general  law  respecting  car- 
riers ;  that  it  admitted  of  some  doubt  whether  the  risk  in  this  case 
commenced  until  the  commencement  of  the  voyage ;  that  it  was  mat- 
ter of  doubt  whether  the  defendants,  in  the  case  of  mere  baggage, 
were  insurers  for  more  than  the  property  of  the  passenger ;  in  most 
cases  it  would  be  a  risk  without  compensation,  which  was  not  in  the 
spirit  of  the  law;  that  when  a  carrier  is  to  be  made  liable  for  bank 
bills,  not  made  up  in  a  package  pointing  to  its  contents,  common 
justice  required  that  he  should  be  informed  of  the  nature  of  his 
charge,  so  that  he  might  take  the  necessary  precautions  for  the 
safety  of  the  bills  and  for  his  own  protection;  that  in  his  opinion 
the  information  of  Phillips  to  the  master  of  the  boat  of  the  value 
and  contents  of  the  trunk,  was  not,  under  all  the  circumstances  of 
the  case,  sufficient  to  entitle  the  plaintiff  to  recover,  and  on  that 
ground  he  directed  a  nonsuit.  A  nonsuit  was  accordingly  entered, 
which  the  plaintiffs  now  move  to  set  aside. 

Nelson,  J.  This  case  is  peculiar  in  many  of  its  features,  and 
must  be  determined  by  a  recurrence  to  some  of  the  general  and  fun- 
damental principles  which  govern  actions  of  this  kind.  The  rule  of 
the  common  law  in  relation  to  common  carriers  has  been  frequently 
pronounced  a  rigorous  one,  and  its  vindication  by  Lord  Holt  affords 
abundant  evidence,  if  any  were  wanting,  of  the  truth  of  the  obser- 
vation. He  says,  in  Lane  v.  Coulton,  1  Vin.  Abr.  219,  though  one 
may  think  it  a  hard  case  that  a  poor  carrier  that  is  robbed  on  the 
road,  without  any  manner  of  default  in  him,  should  be  answerable 
for  all  the  goods  he  takes,  yet  the  inconveniency  would  be  far  more 
intolerable  if  it  were  not  so,  for  it  would  be  in  his  power  to  combine 
with  robbers,  or  to  pretend  a  robbery  or  some  other  accident,  with- 
out a  possibility  of  a  remedy  to  the  party,  and  the  law  will  not 


WHO    ARE    COMMON    CARRIERS. 

expose  him  to  so  great  a  temptation.  This  reason,  which  I  believe 
is  the  only  one  that  has  ever  been  given  for  the  origin  of  the  rule 
and  which  probably  had  much  foundation  in  fact  in  the  early  and 
rude  age  in  which  it  must  have  been  established,  it  is  obvious,  at 
this  day,  is  nearly  as  applicable  to  every  person  intrusted  with  tin- 
property  of  another,  as  it  is  to  the  common  carrier.  In  proportion, 
however,  to  the  rigor  of  the  liability,  was  exacted  the  compensation 
for  it  and  the  means  of  enforcing  payment,  which  affor  ort  of 

equivalent  for  the  harshness  of  the  rule.  Accordingly  we  find  it 
frequently  laid  down  in  actions  of  this  kind,  as  a  fundamental 
proposition,  that  the  common  carrier  is  liable  in  respect  to  his 
reward,  and  that  the  compensation  should  be  in  proportion  to  the 
risk.  So  strictly  was  this  rule  adhered  to  that  it  was  repeatedly 
decided  by  Lord  Holt  that  the  hackney  coachman  was  not  liable  for 
the  travelling  trunk  of  the  passenger  which  was  lost,  unless  a  dis- 
tinct price  had  been  paid  for  the  trunk  as  well  as  the  person;  and 
where  it  was  the  custom  of  the  stagecoach  for  passengers  to  pay  for 
baggage  above  a  certain  weight,  the  coachman  was  responsible  only 
for  the  loss  of  goods  beyond  such  weight.  1  Vin.  Abr.  220,  and 
cases  there  cited.  So  in  the  analogous  case  of  the  innkeeper,  if  a 
guest  stops  at  an  inn,  and  departs  for  a  few  days,  leaving  his  goods, 
if  they  are  stolen  during  his  absence,  the  landlord  is  not  liable  as 
innkeeper,  for  at  the  time  of  the  loss  the  owner  was  not  his  guest, 
and  he  had  no  benefit  from  the  keeping  of  the  goods.  Cro.  Jac. 
188;  1  Vin.  Abr.  225.  It  has  since  been  determined  that  the  stage 
coachman  is  responsible  for  the  baggage  of  the  passenger,  though  no 
distinct  price  was  paid  for  it,  upon  the  ground,  however,  still  con- 
sistent with  the  principle  of  the  above  cases;  to  wit,  that  the  reward 
for  carrying  the  same  was  included  in  the  fare  for  carrying  the 
passenger.     1  Wheaton's  Selwyn,  301,  n.  1. 

Now,  upon  the  ground  that  the  defendants  in  this  case  have 
received  no  compensation  or  reward  from  the  plaintiffs  or  any  other 
person  for  the  transportation  or  risk  of  the  money  in  question,  and 
that  they  were  deprived  of  such  reward  by  the  unfair  dealing  of  the 
agent  of  the  plaintiffs  with  the  defendants,  I  am  of  opinion  the 
plaintiffs  cannot  recover,  and  that  they  were  properly  nonsuited 
upon  the  trial.  As  a  general  rule  where  there  has  been  no  qualified 
acceptance  of  goods  by  special  agreement,  or  where  an  agreement 
cannot  be  inferred  from  notice,  the  carrier  is  bound  to  make  inquiry 
as  to  the  value  of  the  box  or  article  received,  and  the  owner  must 
answer  truly  at  his  peril;  and  if  such  inquiries  are  not  made,  and  it 
is  received  at  such  price  for  transportation  as  is  asked  with  reference 
to  its  bulk,  weight,  or  external  appearance,  the  carrier  is  responsible 
for  the  loss,  whatever  may  be  its  value.  If  he  has  given  general 
notice  that  he  will  not  be  liable  over  a  certain  amount,  unless  tin- 
value  is  made  known  to  him  at  the  time  of  delivery  and  a  premium 
for  insurance  paid,  such  notice,  if  brought  home  to  the  knowli 


326  CARRIERS   OF    GOODS. 

of  the  owner  (and  courts  and  juries  are  liberal  in  inferring  such 
knowledge  from  the  publication  of  the  notice),  is  as  effectual  in 
qualifying  the  acceptance  of  the  goods  as  a  special  agreement,  and 
the  owner,  at  his  peril,  must  disclose  the  value,  and  pay  the  premium. 
The  carrier  in  such  case  is  not  bound  to  make  the  inquiry,  and  if 
the  owner  omits  to  make  known  the  value,  and  does  not  therefore 
pay  the  premium  at  the  time  of  delivery,  it  is  considered  as  dealing 
unfairly  with  the  carrier,  and  he  is  liable  only  to  the  amount  men- 
tioned in  his  notice,  or  not  at  all,  according  to  the  terms  of  his 
notice.  1  Wheaton's  Selw.  305,  306,  308,  and  notes;  6  Com.  L. 
R.  333;  4  Burr.  2298;  5  Com.  L.  R.  476;  8  Pick.  182;  11  Com.  L. 
R.  243. 

In  this  case  no  notice  has  been  given  by  the  defendants  limiting 
their  responsibility,  and  they  are  no  doubt  liable  to  the  full  value  of 
the  baggage  of  the  passenger  lost,  or  of  the  goods  lost,  which  they 
had  received  without  any  special  agreement,  qualifying  the  risk  for 
transportation.  The  defendants  cannot  succeed  upon  this  ground. 
But  in  the  absence  of  notice,  if  any  means  are  used  to  conceal  the 
value  of  the  article,  and  thereby  the  owner  avoids  paying  a  reason- 
able compensation  for  the  risk,  this  unfairness  and  its  consequence 
to  the  defendants,  upon  the  principles  of  common  justice  as  well  as 
those  peculiar  to  this  action,  will  exempt  them  from  the  respon- 
sibility; for  such  a  result  is  alike  due  to  the  defendants,  who  have 
received  no  reward  for  the  risk,  and  to  the  party  who  has  been  the 
cause  of  it  by  means  of  disingenuous  and  unfair  dealing.  Thus, 
where  the  plaintiff  delivered  to  the  carrier  a  box,  telling  him  there 
was  a  book  and  tobacco  in  it,  when  it  contained  one  hundred  pounds, 
and  it  was  lost,  he  should  not  recover.  It  is  true  that  in  such  a  case 
a  party  did  recover,  though  Rolle,  C.  J.,  considered  it  a  cheat;  but 
it  is  clear  that  at  this  day  he  could  not  recover.     4  Burr.  2301. 

So  where  a  box,  in  which  there  was  a  large  sum  of  money,  was 
brought  to  a  carrier,  who  inquired  its  contents,  and  was  answered  it 
was  filled  with  silk,  upon  which  it  was  taken  and  lost,  it  was  held 
the  owner  could  not  recover.  Ibid.  So  where  a  bag  sealed  was 
delivered  to  a  carrier,  and  was  said  to  contain  two  hundred  pounds, 
and  a  receipt  was  given  for  the  same,  when,  in  fact,  it  contained 
four  hundred  pounds,  and  it  was  lost,  the  carrier  was  held  answer- 
able only  for  the  two  hundred  pounds,  as  the  reward  extended  no 
farther.  4  Burr.  2301;  Selw.  305  (n.)  These  cases  all  proceed  upon 
the  ground  that  the  carrier  is  deprived  of  his  reward  for  the  extra 
value  of  the  article,  and  consequent  extra  risk  incurred,  by  means 
of  the  unfair  if  not  fraudulent  conduct  of  the  owner,  and  therefore 
the  rigor  of  the  common-law  rule  is  not  applied  to  him,  and  he  is 
only  held  responsible  for  the  loss  in  case  of  gross  negligence.  If 
the  defendants  are  to  be  made  responsible  to  the  plaintiffs  through 
the  medium  and  acts  of  their  agent,  who  was  employed  to  carry  the 
money  from  i\Tew  York  to  the  bank,  the  plaintiffs  also  must  be  held 


WHO    ARE    COMMON    CABBIEES. 

responsible  to  the  defendant  for  his  conduct;  the  obligation  must  be 
reciprocal.     Instead  of  committing  the  several  packages  of  n. 
the  captain,  which  of  themselves  generally  indi  eir  value,  and 

in  this  case  would  have  done  so,  as  the  figures  (by  which  I  under- 
stand the  quantity  of  money  in  each  package)  could  be  seen  upon 
them,  and  thereby  enable  the  captain  to  exact  a  reasonable  compen- 
sation for  the  risk,  and  apprise  him  of  the  necessity  of  g]  care 
and  caution  in  the  safe  conveyance  of  the  money,  which  he  naturally 
would  bestow  in  proportion  to  the  value,  the  agent  of  the  plainl 
2)ut  them  into  his  trunk,  and  committed  it  to  the  captain  as  his  I 
gage,  affording  no  other  indication  of  the  value  of  its  contents  than 
that  it  was  a  trunk  of  importance.  This  was  enough  to  attract  the 
attention  of  the  felon  who  might  be  standing  by  to  its  contents,  but 
certainly  was  not  calculated  to  afford  information  to  the  captain  of 
the  extraordinary  character  and  value  of  those  contents.  The  cap- 
tain might  understand  he  had  a  costly  wardrobe  and  other  neces- 
saries and  conveniences  for  travelling  of  great  value,  but  not  that 
the  trunk  contained  eleven  thousand  dollars  in  bank  bills,  which  the 
traveller  was  carrying  for  hire  or  friendship,  and  not  as  travelling 
expenses. 

It  may  be  difficult  to  define  with  technical  precision  what  may 
legitimately  be  included  in  the  term  baggage,  as  used  in  connection 
with  travelling  in  public  conveyances;  but  it  may  be  safely  asserted 
that  money,  except  what  may  be  carried  for  the  expenses  of  travel- 
ling, is  not  thus  included,  and  especially  a  sum  like  the  present, 
which  was  taken  for  the  mere  purpose  of  transportation.  We  have 
already  seen  that  formerly  so  strict  was  the  rule  that  the  carrier  was 
liable  only  in  respect  to  the  reward  adhered  to,  that  he  was  not  held 
liable  for  the  loss  of  the  baggage  of  the  passenger  unless  a  distinct 
price  was  paid  for  it.  The  law  is  now  very  properly  altered, 
reasonable  amount  of  baggage,  by  custom  or  the  courtesy  of  the  car- 
rier, is  considered  as  included  in  the  fare  for -the  person;  but  courts 
ought  not  to  permit  this  gratuity  or  custom  to  be  abused,  and  under 
pretence  of  baggage  to  include  articles  not  within  the  sense  or  mean- 
ing of  the  term,  or  within  the  object  or  intent  of  the  indulgence  of 
the  carrier,  and  thereby  defraud  him  of  his  just  compensation,  and 
subject  him  to  unknown  and  illimitable  hazards.  If  the  amount  of 
money  in  the  trunk  in  this  case  is  not  fairly  included  under  the 
term  baggage,  as  used  in  the  connection  we  here  find  it  (and  I  can- 
not think  it  is),  then  the  conduct  of  the  agent  was  a  virtual  conceal- 
ment of  that  sum;  his  representation  of  his  trunk  and  the  contents 
as  baggage  was  not  a  fair  one.  and  was  calculated  to  deceive  the 
captain;  and  it  would  be  a  violation  of  first  principles  to  permit  the 
plaintiffs  to  recover.  The  case  of  Miles  v.  Cattle  et  "/..  19  Com.  I.. 
It.  219,  in  some  respects  resembles  this  case.  Th  -  plaintiff 
going  to  L.,  and  took  a  seat  in  a,  public  conveyance.  lb-  had  v 
him  a  bag  labelled  "T.  Miles,  traveller,''  containing  clothes  worth 


328  CAKRIERS   OF    GOODS. 

about  fifteen  pounds.  Before  he  started,  G.  delivered  him  a  parcel 
containing  a  fifty-pound  bank  note,  addressed  to  an  attorney  in  L., 
which  the  plaintiff  was  desired  to  book  at  the  defendants'  office,  and 
to  be  forwarded  by  the  defendants  to  L.  The  plaintiff,  instead  of 
doing  so,  put  the  parcel  in  his  own  bag,  intending  to  convey  it  to  L. 
himself.  If  the  parcel  had  been  sent  by  the  defendants,  it  would 
have  cost  four  shillings  and  sixpence.  The  bag  and  contents  were 
lost.  The  verdict  was  found  for  the  fifteen  pounds,  with  leave  to 
apply  to  increase  it,  on  the  facts  in  the  case,  by  adding  the  fifty 
pounds.  The  court  denied  the  application,  principally  upon  the 
ground  that  the  plaintiff  had  no  interest  in  the  fifty  pounds.  But  it 
was  conceded  by  the  court  that  the  owner  could  not  recover  on  the 
facts.  Tindale,  J.,  says,  in  violation  of  his  trust  the  plaintiff 
thought  proper  not  to  deliver  the  parcel  to  the  defendants,  but  to 
deposit  it  in  his  own  bag;  thereby  depriving  the  owner  of  any 
remedy  he  might  have  had  against  the  defendants,  and  the  defend- 
ants of  the  sum  they  would  otherwise  have  earned  for  the  carriage  of 
the  parcel.  In  this  case  the  president  of  the  bank  directed  Phillips 
to  commit  the  packages  directly  to  the  captain,  and  had  he  followed 
such  directions,  the  captain  would  have  been  enabled  to  charge  a 
reward  for  the  carriage  of  the  same,  and  the  captain,  or  the  defend- 
ants, would  have  been  responsible  for  its  safety.  His  omission  to 
follow  the  directions  was  a  violation  of  his  trust,  for  which  the 
defendants  are  not  accountable. 

It  was  decided  in  Sewall  v.  Allen  et  al.,  in  the  Court  of  Errors, 
6  Wend.  336,  that  the  Dutchess  and  Orange  Steamboat  Company, 
and  the  members  thereof,  were  not  liable  for  the  loss  of  packages 
of  bank  bills  intrusted  to  the  captain  of  the  boat,  on  the  ground  that 
the  carriage  of  bank  bills  was  not  within  the  ordinary  business  of 
the  company;  and  so  far  as  the  usage  extended,  it  was  a  personal 
trust  committed  to  the  captain,  who  alone  received  the  compensa- 
tion, or,  in  other  words,  the  company  were  neither  by  their  charter 
or  usage  under  it,  common  carriers  of  bank  bills.  From  the  facts 
appearing  in  that  case,  I  presume  the  principle  here  decided  by  the 
highest  judicial  tribunal  in  the  State  would  be  equally  applicable  to 
this  company,  though  from  the  direction  the  cause  took  upon  the 
trial,  facts  sufficient  do  not  appear  to  raise  the  question.  If  so,  it 
seems  to  me  impossible  to  maintain  the  proposition  that  the  defend- 
ants would  be  holden  responsible  for  the  loss  of  an  article  in  the 
trunk  of  a  passenger,  which  in  no  sense  of  the  term  can  be  con- 
sidered a  part  of  the  baggage  of  the  passenger,  and  for  the  transpor- 
tation of  which  no  compensation  is  received  by  the  company,  when, 
confessedly,  they  would  not  be  accountable  for  the  same  article,  if" 
it  had  been  committed  directly  to  the  care  of  the  captain,  and  a 
reasonable  reward  paid  him  for  transportation.  It  is  said  the 
difference  between  the  cases  consists  in  this,  that  in  the  one  case  it 
is  a  part  of  the  baggage  of  the  passenger,  the  carrying  of  which  is 


WHO   ARE    COMMON    CARRIERS.  329 

within  the  ordinary  business  of  the  company,  and  for  which  they 
receive  the  reward,  and  in  the  other  it  is  a  private  transaction 
between  the  owner  and  the  captain;  the  answer  I  think  is,  that  put- 
ting the  article  in  the  trunk  does  not  make  it  baggage.  If  it  is 
included  within  that  term,  it  is  as  much  baggage  when  distinctly 
committed  to  the  care  of  the  captain  as  when  in  the  trunk;  the 
place  in  which  it  is  cannot,  in  this  instance,  at  least,  vary  the  char- 
acter of  the  article  or  the  transaction;  the  object  is  the  transporta- 
tion of  the  money,  without  reference  to  a  connection  with  the  person 
of  the  passenger. 

Having  come  to  the  conclusion  upon  what  I  view  as  the  merits 
and  principle  of  the  case,  that  the  plaintiffs  cannot  recover,  it  is 
unimportant  to  examine  any  other  question  discussed  upon  the 
argument. 

Motion  for  a  new  trial  denied. 


RAILROAD   COMPANY  v.    FRALOFF. 

100  U.  S.  24.     1879. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  against  the  New 
York  Central  and  Hudson  River  Railroad  Company,  in  an  action  by 
Olga  de  Maluta  Fraloff  to  recover  the  value  of  certain  articles  of 
wearing  apparel  alleged  to  have  been  taken  from  her  trunk  while 
she  was  a  passenger  upon  the  cars  of  the  company,  and  while  the 
trunk  was  in  its  charge  for  transportation  as  part  of  her  baggage. 

There  was  evidence  before  the  jury  tending  to  establish  the  fol- 
lowing facts: — 

The  defendant  in  error,  a  subject  of  the  Czar  of  Russia,  possess- 
ing large  wealth,  and  enjoying  high  social  position  among  her  own 
people,  after  travelling  in  Europe,  Asia,  and  Africa,  spending  some 
time  in  London  and  Paris,  visited  America  in  the  year  1869,  for  the 
double  purpose  of  benefiting  her  health  and  seeing  this  country. 
She  brought  with  her  to  the  United  States  six  trunks  of  ordinary 
travel-worn  appearance,  containing  a  large  quantity  of  wearing 
apparel,  including  many  elegant,  costly  dresses,  and  also  rare  and 
valuable  laces,  which  she  had  been  accustomed  to  wear  upon  different 
dresses  when  on  visits,  or  frequenting  theatres,  ot  attending  dim. 
balls,  and  receptions.  A  portion  of  the  laces  was  made  by  her 
ancestors  upon  their  estates  in  Russia.  After  remaining  some  weeks 
in  the  city  of  New  York,  she  started  upon  a  journey  westward,  going 


330  CARRIERS    OF    GOODS. 

first  to  Albany,  and  taking  with  her,  among  other  things,  two  of  the 
trunks  brought  to  this  country.  Her  ultimate  purpose  was  to  visit  a 
warmer  climate,  and,  upon  reaching  Chicago,  to  determine  whether 
to  visit  California,  New  Orleans,  Havana,  and  probably  Rio  Janeiro. 
After  passing  a  day  or  so  at  Albany,  she  took  passage  on  the  cars  of 
the  New  York  Central  and  Hudson  River  Railroad  Company  for 
Niagara  Falls,  delivering  to  the  authorized  agents  of  the  company 
for  transportation  as  her  baggage  the  two  trunks  above  described, 
which  contained  the  larger  portion  of  the  dress-laces  brought  with 
her  from  Europe.  Upon  arriving  at  Niagara  Falls  she  ascertained 
that  one  of  the  trunks,  during  transportation  from  Albany  to  the 
Falls,  had  been  materially  injured,  its  locks  broken,  its  contents 
disturbed,  and  more  than  two  hundred  yards  of  dress-lace  abstracted 
from  the  trunk,  in  which  it  had  been  carefully  placed  before  she  left 
the  city  of  New  York.  The  company  declined  to  pay  the  sum 
demanded  as  the  value  of  the  missing  laces;  and,  having  denied  all 
liability  therefor,  this  action  was  instituted  to  recover  the  damages 
which  the  defendant  in  error  claimed  to  have  sustained  by  reason  of 
the  loss  of  her  property. 

Upon  the  first  trial  of  the  case,  in  1873,  the  jury,  being  unable 
to  agree,  was  discharged.  A  second  trial  took  place  in  the  year 
1875.  Upon  the  conclusion  of  the  evidence  in  chief  at  the  last  trial, 
the  company  moved  a  dismissal  of  the  action,  and,  at  the  same  time, 
submitted  numerous  instructions  which  it  asked  to  be  then  given  to 
the  jury,  among  which  was  one  peremptorily  directing  a  verdict  in 
its  favor.  That  motion  was  overruled,  and  the  court  declined  to 
instruct  the  jury  as  requested.  Subsequently,  upon  the  conclusion 
of  the  evidence  upon  both  sides,  the  motion  for  a  peremptory  instruc- 
tion in  behalf  of  the  company  was  renewed,  and  again  overruled. 
The  court  thereupon  gave  its  charge,  to  which  the  company  filed 
numerous  exceptions,  and  also  submitted  written  requests,  forty- 
two  in  number,  for  instructions  to  the  jury.  The  court  refused  to 
instruct  the  jury  as  asked,  or  otherwise  than  as  shown  in  its  own 
charge.  To  the  action  of  the  court  in  the  several  respects  indicated 
the  company  excepted  in  due  form.  The  jury  returned  a  verdict 
against  the  company  for  the  sum  of  $  10,000,  although  the  evidence, 
in  some  of  its  aspects,  placed  the  value  of  the  missing  laces  very  far 
in  excess  of  that  amount. 

It  would  extend  this  opinion  to  an  improper  length,  and  could 
serve  no  useful  purpose,  were  we  to  enter  upon  a  discussion  of  the 
various  exceptions,  unusual  in  their  number,  to  the  action  of  the 
court  in  the  admission  and  exclusion  of  evidence,  as  well  as  in  refus- 
ing to  charge  the  jury  as  requested  by  the  company.  Certain  con- 
trolling propositions  are  presented  for  our  consideration,  and  upon 
their  determination  the  substantial  rights  of  parties  seem  to  depend. 
If,  in  respect  of  these  propositions,  no  error  was  committed,  the 
judgment  should  be  affirmed   without  any  reference  to  points  of  a 


WHO   ARE    COMMON'    CARRIERS.  331 

minor  and  merely  technical  nature,  which  do  not  involve  the  merits 
of  the  case,  or  the  just  rights  of  the  parties. 

In  behalf  of  the  company  it  is  earnestly  claimed  that  the  court 
erred  in  not  giving  a  peremptory  instruction  for  a  verdict  in  its 
behalf.  This  position,  however,  is  wholly  untenable.  Had  I 
been  no  serious  controversy  about  the  facts,  and  had  the  law  upon 
the  undisputed  evidence  precluded  any  recovery  whatever  against 
the  company,  such  an  instruction  would  have  been  proper.  1  Wall. 
369;  11  How.  372;  19  id.  269;  22  Wall.  121.  The  courl  -.aid  not 
have  given  such  an  instruction  in  this  case  without  usurping  the 
functions  of  the  jury.  This  will,  however,  more  clearly  appear 
from  what  is  said  in  the  course  of  this  opinion. 

The  main  contention  of  the  company,  upon  the  trial  below,  was 
that  good  faith  required  the  defendant  in  error,  when  delivering  her 
trunks  for  transportation,  to  inform  its  agents  of  the  peculiar  char- 
acter and  extraordinary  value  of  the  laces  in  question ;  and  that  her 
failure  in  that  respect,  whether  intentional  or  not,  was,  in  itself,  a 
fraud  upon  the  carrier,  which  should  prevent  any  recovery  in  this 
action. 

The    Circuit  Court   refused,  and,  in   our  opinion,    rightly,    to  so 
instruct  the  jury.     We  are  not  referred  to  any  legislative  enactment 
restricting  or  limiting  the  responsibility  of  passenger  carriers  by 
land  for  articles  carried  as  baggage.     Nor  is  it  pretended  that  the 
plaintiff  in  error  had,  at  the  date  of  these  transactions,  established 
or  promulgated  any  regulation  as  to  the  quantity  or  the  value  of 
baggage  which  passengers  upon  its  cars  might  carry,  without  extra 
compensation,    under   the    general   contract    to   carry   the    person. 
Further,  it  is  not  claimed  that  any  inquiry  was  made  of  the  defend- 
ant in  error,  either  when  the  trunks  were  taken  into  the  custody  of 
the  carrier,  or  at  any  time  prior  to  the  alleged  loss,  as  to  the  value 
of  their  contents.     It  is  undoubtedly  competent  for  carriers  of  pas- 
sengers, by  specific  regulations,  distinctly  brought  to  the  knowledge 
of  the  passenger,  which  are  reasonable  in  their  character  and  not 
inconsistent  with  any  statute  or  their  duties  to  the  public,  to  protect 
themselves  against  liability,   as  insurers,   for  baggage  exceeding  a 
fixed  amount  in  value,   except  upon  additional   compensation,   pro- 
portioned to  the  risk.     And  in  order  that  such  regulations  may  be 
practically  effective,  and  the  carrier  advised  of  the  full  extent  of  its 
responsibility,  and,  consequently,  of  the  degree  of  precaution  neces- 
sary upon  its  part,  it  may  rightfully  require,  as  a  condition  precedent 
to  any  contract  for  the  transportation  of  baggage,  information  from 
the  passenger  as  to  its  value;  and  if  the  value  thus  disclosed  < 
that  which  the  passenger  may  reasonably  demand  to  be  transported 
as  baggage  without  extra  compensation,  the  carrier,  at  its  option, 
can  make  such  additional  charge  as  the  risk  fairly  justifies.      I 
also  undoubtedly  true  that  the  carrier  may  be  discharged  from  lia- 
bility for  the  full  value  of  the  passenger's  baggage,  if  the  latter,  by 


332  CAEKIERS   OF   GOODS. 

false  statements,  or  by  any  device  or  artifice,  puts  off  inquiry  as  to 
such  value,  whereby  is  imposed  upon  the  carrier  responsibility 
beyond  what  it  was  bound  to  assume  in  consideration  of  the  ordinary 
fare  charged  for  the  transportation  of  the  person.  But  in  the 
absence  of  legislation  limiting  the  responsibility  of  carriers  for  the 
baggage  of  passengers ;  in  the  absence  of  reasonable  regulations  upon 
the  subject'  by  the  carrier,  of  which  the  passenger  has  knowledge; 
in  the  absence  of  inquiry  of  the  passenger  as  to  the  value  of  the 
articles  carried,  under  the  name  of  baggage,  for  his  personal  use  and 
convenience  when  travelling;  and  in  the  absence  of  conduct  upon 
the  part  of  the  passenger  misleading  the  carrier  as  to  the  value  of  his 
baggage,  —  the  court  cannot,  as  matter  of  law,  declare,  as  it  was  in 
effect  requested  in  this  case  to  do,  that  the  mere  failure  of  the  pas- 
senger, unasked,  to  disclose  the  value  of  his  baggage,  is  a  fraud 
upon  the- carrier,  which  defeats  all  rights  of  recovery.  The  instruc- 
tions asked  by  the  company  virtually  assumed  that  the  general  law 
governing  the  rights,  duties,  and  responsibilities  of  passenger  car- 
riers, prescribed  a  definite,  fixed  limit  of  value,  beyond  which  the 
carrier  was  not  liable  for  baggage,  except  under  a  special  contract  or 
upon  previous  notice  as  to  value.  We  are  not,  however,  referred  to 
any  adjudged  case,  or  to  any  elementary  treatise  which  sustains  that 
proposition,  without  qualification.  In  the  very  nature  of  things,  no 
such  rule  could  be  established  by  the  courts  in  virtue  of  any  inherent 
power  they  possess.  The  quantity  or  kind  or  value  of  the  baggage 
which  a  passenger  may  carry  under  the  contract  for  the  transporta- 
tion of  his  person  depends  upon  a  variety  of  circumstances  which  do 
not  exist  in  every  case.  "That  which  one  traveller,"  says  Erie, 
C.  J.,  in  Philpot  v.  Northwestern  Railway  Co.,  19  C.  B.  n.  s.  321, 
"  would  consider  indispensable,  would  be  deemed  superfluous  and 
unnecessary  by  another.  But  the  general  habits  and  wants  of  man- 
kind will  be  taken  in  the  mind  of  the  carrier  when  he  receives  a 
passenger  for  conveyance."  Some  of  the  cases  seem  to  announce  the 
broad  doctrine  that,  by  general  law,  in  the  absence  of  legislation, 
or  special  regulations  by  the  carrier,  of  the  character  indicated, 
a  passenger  may  take,  without  extra  compensation,  such  articles 
adapted  to  personal  use  as  his  necessities,  comfort,  convenience,  or 
even  gratification  may  suggest;  and  that  whatever  may  be  the  quan- 
tity or  value  of  such  articles,  the  carrier  is  responsible  for  all  damage 
or  loss  to  them,  from  whatever  source,  unless  from  the  act  of  God  or 
the  public  enemy.  But  that,  in  our  judgment,  is  not  an  accurate 
statement  of  the  law.  Whether  articles  of  wearing  apparel,  in  any 
particular  case,  constitute  baggage,  as  that  term  is  understood  in  the 
law,  for  which  the  carrier  is  responsible  as  insurer,  depends  upon 
the  inquiry  whether  they  are  such  in  quantity  and  value  as  passen- 
gers under  like  circumstances  ordinarily  or  usually  carry  for  per- 
sonal use  when  travelling.  "The  implied  undertaking,"  says  Mr. 
Angell,  "of  the  proprietors  of  stagecoaches,  railroads,   and  steam- 


WHO    ARE    COMMON    CARRIERS.  333 

boats  to  carry  in  safety  the  baggage  of  passengers  is  not  unlimited, 
and  cannot  be  extended  beyond  ordinary  baggage,  or  such  baggage 
as   the   traveller   usually   carries  with  him    for  his   personal    • 
venience."     Angell,  Carriers,  sec.  115.      In    Hannibal    Railroad   v. 

Swift,  12  Wall.  272  [342],  this  court,  speaking  through  Mr.  Justice 
Field,  said  that  the  contract  to  carry  the  person  "only  implies  an 
undertaking  to  transport  such  a  limited  quantity  of  articles  as  are 
ordinarily  taken  by  travellers  for  their  personal  use  and  convenience, 
such  quantity  depending,  of  course,  upon  the  station  of  the  party, 
the  object  and  length  of  his  journey,  and  many  other  considera- 
tions." To  the  same  effect  is  a  decision  of  the  Queen's  Bench  in 
Macrow  v.  Great  Western  Railway  Co.,  Law  Rep.  6  Q.  B.  121, 
where  Chief  Justice  Cockburn  announced  the  true  rule  to  be  "that 
whatever  the  passenger  takes  with  him  for  his  personal  use  or  con- 
venience, according  to  the  habits  or  wants  of  the  particular  class  to 
which  he  belongs,  either  with  reference  to  the  immediate  necessities 
or  to  the  ultimate  purpose  of  the  journey,  must  be  considered  as 
personal  luggage."  2  Parsons,  Contr.,  199.  To  the  extent,  there- 
fore, that  the  articles  carried  by  the  passenger  for  his  personal  use 
exceed  in  quantity  and  value  such  as  are  ordinarily  or  usually 
carried  by  passengers  of  like  station  and  pursuing  like  journeys, 
they  are  not  baggage  for  which  the  carrier  by  general  law  is  respon- 
sible as  insurer.  In  cases  of  abuse  by  the  passenger  of  the  privilege 
which  the  law  gives  him,  the  carrier  secures  such  exemption  from 
responsibility,  not,  however,  because  the  passenger,  uninquired  of, 
failed  to  disclose  the  chara6ter  and  value  of  the  articles  carried,  but 
because  the  articles  themselves,  in  excess  of  the  amount  usually  or 
ordinarily  carried,  under  like  circumstances,  would  not  constitute 
baggage  within  the  true  meaning  of  the  law.  The  laces  in  question 
confessedly  constituted  a  part  of  the  wearing  apparel  of  the  defend- 
ant in  error.  They  were  adapted  to  and  exclusively  designed  for 
personal  use,  according  to  her  convenience,  comfort,  or  tastes,  during 
the  extended  journey  upon  which  she  had  entered.  They  were  Dot 
merchandise,  nor  is  there  any  evidence  that  they  were  intended  for 
sale  or  for  purposes  of  business.  Whether  they  were  such  articles  in 
quantity  and  value  as  passengers  of  like  station  and  under  like  cir- 
cumstances ordinarily  or  usually  carry  for  their  personal  use.  and  to 
subserve  their  convenience,  gratification,  or  comfort  while  travel- 
ling, was  not  a  pure  question  of  law  for  the  sole  or  final  determina- 
tion of  the  court,  but  a  question  of  fact  for  the  jury,  under  pr< 
guidance  from  the  court  as  to  the  law  governing  such  cases.  It  was 
for  the  jury  to  say  to  what  extent,  if  any.  the  1  ;e  of  defendant 

in  error  exceeded  in-  quantity  and  value  that  which  was  usually 
carried  without  extra  compensation,  and  to  disallow  any  claim  for 
such  excess. 

Upon  examining  the  carefully  guarded  instructions  given  to  the 
jury,  we  are  unable  to  see  that  the  court  below  omitted  anything 


334  CARRIERS    OF    GOODS. 

essential  to  a  clear  comprehension  of  the  issues,  or  announced  any 
principle  or  doctrine  not  in  harmony  with  settled  law.      After  sub- 
mitting to  the  jury  the   disputed  question  as   to  whether  the  laces 
were,  in  fact,  in  the  trunk  of  the  defendant  in  error,  when  delivered 
to  the  company  at  Albany  for  transportation  to  Niagara  Falls,  the 
court   charged   the    jury,    in    substance,    that   every   traveller   was 
entitled  to  provide  for  the  exigencies  of  his  journey  in  the  way  of 
baggage,  was  not  limited  to  articles  which  were  absolutely  essential, 
but  could  carry  such  as  were  usually  carried  by  persons  travelling, 
for  their  comfort,  convenience,  and  gratification  upon  such  journeys; 
that  the  liability  of  carriers  could  not  be  maintained  to  the  extent 
of  making  them  responsible  for  such  unusual  articles  as  the  excep- 
tional fancies,  habits,  or  idiosyncrasies  of  some  particular  individual 
may  prompt  him  to  carry;  that  their  responsibility  as  insurers  was 
limited   to    such   articles    as    it   was    customary   or   reasonable   for 
travellers  of  the  same  class,  in  general,  to  take  for  such  journeys 
as  the  one  which  was  the  subject  of  inquiry,  and  did  not  extend  to 
those  which  the  caprice  of  a  particular  traveller  might  lead  that 
traveller  to  take;  that  if  the  company  delivered  to  the  defendant  in 
error,  aside   from   the  laces   in  question,    baggage  which  had  been 
carried,  and   which   was    sufficient  for  her  as  reasonable   baggage, 
within  the  rules  laid  down,  she  was  not  entitled  to  recover;  that  if 
she  carried  the   laces  in  question  for  the  purpose  of  having  them 
safely  kept  and  stored  by  the  railroad  companies  and  hotel-keepers, 
and  not  for  the  purpose  of  using  them,  as  occasion  might  require, 
for  her  gratification,  comfort,    or  convenience,  the  company  was  not 
liable;  that  if  any  portion  of  the  missing  articles  were  reasonable 
and  proper  for  her  to  carry,  and  all  was  not,  they  should  allow  her 
the  value  of  that  portion. 

Looking  at  the  whole  scope  and  bearing  of  the  charge,  and  inter- 
preting what  was  said,  as  it  must  necessarily  have  been  understood 
both  by  the  court  and  jury,  we  do  not  perceive  that  any  error  was 
committed  to  the  prejudice  of  the  company,  or  of  which  it  can  com- 
plain. No  error  of  law  appearing  upon  the  record,  this  court  cannot 
reverse  the  judgment  because,  upon  examination  of  the  evidence,  we 
may  be  of  the  opinion  that  the  jury  should  have  returned  a  verdict 
for  a  less  amount.  If  the  jury  acted  upon  a  gross  mistake  of  facts, 
or  were  governed  by  some  improper  influence  or  bias,  the  remedy 
therefore  rested  with  the  court  below,  under  its  general  power  to  set 
aside  the  verdict.  But  that  court  finding  that  the  verdict  was  abun- 
dantly sustained  by  the  evidence,  and  that  there  was  no  ground  to 
suppose  that  the  jury  had  not  performed  their  duty  impartially  and 
justly,  refused  to  disturb  the  verdict,  and  overruled  a  motion  for  a 
new  trial.  Whether  its  action,  in  that  particular,  was  erroneous  or 
not,  our  power  is  restricted  by  the  Constitution  to  the  determination 
of  the  questions  of  law  arising  upon  the  record.  Our  authority  does 
not  extend  to  a  re-examination  of  facts  which  have  been  tried  by  the 


WHO   ARE   COMMON    CARRIERS. 

jury  under  instructions  correctly  defining  the  legal  rights  of  pari 
Parsons  v.  Bedford,  3  Pet.  440;  21  How.  167;   Insurance  Company 
v.  Folsom,  18  Wall.  249. 

It  is,  perhaps,  proper  to  refer  to  one  other  point  suggested  in  tin- 
elaborate  brief  of  counsel  for  the  company.  Our  attention  i 
to  section  4281  of  the  Revised  Statutes,  which  declares  that  "if  any 
shipper  of  platina,  gold,  gold-dust,  coins,  jewelry,  .  .  .  tiin! 
.  .  .  silk  in  a  manufactured  or  unmanufactured  form,  whether 
wrought  up  or  not  wrought  up  with  any  other  material,  furs  or 
laces,  or  any  of  them,  contained  in  any  parcel,  package,  or  bundle, 
shall  lade  the  same  as  freight  or  baggage  on  any  vessel,  without,  at 
the  time  of  such  lading,  giving  to  the  master,  clerk,  agent,  or  owner 
of  such  vessel  receiving  the  same,  a  written  notice  of  the  true  char- 
acter and  value  thereof,  and  having  the  same  entered  on  the  bill  of 
lading  therefor,  the  master  and  owner  of  such  vessels  shall  not  he 
liable  as  carriers  thereof  in  any  form  or  manner;  nor  shall  any 
such  master  or  owner  be  liable  for  any  of  such  goods  beyond  the 
value  and  according  to  the  character  thereof,  so  notified  and 
entered." 

It  is  sufficient  to  say  that  the  section  has  no  application  whatever 
to  this  case.  It  has  reference  alone  to  the  liability  of  carriers  by 
water  who  transport  goods  and  merchandise  of  the  kind  designated. 
It  has  no  reference  to  carriers  by  land,  and  does  not  assume  to 
declare  or  restrict  their  liability  for  the  baggage  of  passengers. 

Judgment  affirmed. 

Mr.  Justice  Field,  with  whom  concurred  Mr.  Justice  Miller 
and  Mr.  Justice  Strong,  dissenting. 

I  dissent  from  the  judgment  of  the  court  in  this  case,  t  do  not 
think  that  two  hundred  and  seventy-five  yards  of  lace,  claimed  by 
the  owner  to  be  worth  $75,000,  and  found  by  the  jury  to  be  of  the 
value  of  $10,000,  can,  as  a  matter  of  law,  be  properly  considered  as 
baggage  of  a  passenger  for  the  loss  of  which  the  railroad  company, 
in  the  absence  of  any  special  agreement,  should  be  held  liable. 


KANSAS   CITY,    etc.    R.    CO.    v.    MORRISON. 

34  Kan.  502.     1886, 

Osr  March  2,  1884,  William  Morrison  filed  his  petition  against  the 
Kansas  City,  Fort  Scott  &  Gulf  Railroad  Company,  in  the  District 
Court  of  Labette  County,  to  recover  $495.12,  with  interest  thereon 
from  February  8,  1884,  the  alleged  value  of  certain  wearing  apparel 
and  tools.  The  petition  also  averred  that  the  railroad  company 
was  a  corporation  operating  a  railroad  from  Fort  Scott  to   Parsons, 


336  CARRIERS   OF    GOODS. 

and  was  a  carrier  of  passengers  between  those  points  on  February  8, 
1884,  and  subsequent  thereto;  that  the  plaintiff  on  said  date  was  a 
watchmaker  and  jeweller,  and  that  the  articles  described  in  the  peti- 
tion constituted  the  tools  necessarily  used  by  him  in  carrying  on  his 
occupation ;  that  on  said  February  8,  the  plaintiff  was  a  passenger 
on  the  railroad  from  Fort  Scott  to  Parsons,  and  at  the  same  time 
delivered  his  trunk  to  the  company  to  be  carried  as  baggage  between 
said  points;  that  plaintiff  arrived  in  Parsons  on  said  day,  and  at 
once  and  on  several  occasious  thereafter  demanded  of  the  company 
a  delivery  of  his  baggage,  which  was  refused  until  February  23; 
that  the  trunk  was  delivered  on  that  day,  but  that  the  wearing 
apparel  and  tools  described  in  the  petition  were  missing  from  it; 
and  that  such  loss  was  caused  by  the  negligence  of  the  company. 

Horton,  C.  J.  .  .  .  The  evidence  on  the  part  of  the  railroad 
company  established  that  the  trunk  reached  Parsons  on  February  9, 
1884;  that  it  was  apparently  in  good  order  when  it  arrived;  that  on 
February  15,  the  depot  was  burglarized,  and  the  trunk  broken  open 
and  robbed. 

The  jury  found  that  the  plaintiff  demanded  his  trunk  on  February 
9,  1884,  and  again  demanded  it  on  February  11;  and  these  findings 
are  supported  by  the  evidence  because  the  demand  made  by  the 
porter  of  the  Belmont,  on  the  11th,  was  the  same  as  if  plaintiff 
had  made  the  demand,  as  the  porter  was  acting  for  him  and  in  his 
interest.  Therefore  we  may  omit  from  this  case  all  discussion  of 
the  liability  of  the  defendant  below  as  warehouseman  or  bailee  for 
hire.  If  plaintiff  demanded  his  baggage,  as  testified  to,  and  the 
company,  having  the  trunk  at  its  depot  at  Parsons,  refused  to 
deliver  it,  the  company  is  responsible  to  the  owner  for  its  contents, 
although  the  trunk  was  subsequently  broken  open  and  robbed  with- 
out its  fault.  The  liability  of  the  railroad  company  was  co-exten- 
sive with  its  custody  of  the  trunk,  and  continued  until  it  was  safely 
delivered  into  the  hands  of  its  owner,  if  the  owner  called  for  and 
demanded  the  trunk  within  a  reasonable  time  after  it  reached 
Parsons.  All  of  this  was  done  by  the  owner.  A.  T.  &  S.  F.  Eld. 
Co.  v.  Brewer,  20  Kas.  670;  C.  P.  I.  &  Pac.  Eld.  Co.  v.  Conklin, 
32  id.  55;  Thompson  on  Carriers,  pp.  530-532. 

We  think,  therefore,  that  there  is  only  one  principal  question  pre- 
sented by  the  record  for  our  determination;  that  is,  whether  the 
tools  of  plaintiff  below  are  proper  baggage  for  a  watchmaker  and 
jeweller.  The  general  rule  is,  that  the  implied  obligation  of  a  com- 
mon carrier  to  carry  the  baggage  of  a  passenger  does  not  extend 
beyond  ordinary  baggage;  and  it  may  be  said  generally  that  by  bag- 
gage we  are  to  understand  such  articles  of  personal  convenience  or 
necessity  as  are  usually  carried  by  passengers  for  their  personal  use, 
and  not  merchandise  or  other  valuables,  although  carried  in  the 
trunks  of  passengers,  which  are  not,  however,  designed  for  any  such 
use,  but  for  other  purposes,  such  as  a  sale  and  the  like.     Story  on 


WHO   ARE    COMMON   CARRIERS.  337 

Bailments,  499;  Hutchinson  on  Carriers,  §  079.  The  decision 
the  subject  of  passengers'  baggage  turn  upon  the  question :  What 
articles  may  baggage  consist  of?  This  is  a  mixed  question  of  law 
and  fact,  to  be  determined  by  the  jury  under  proper  instructions 
from  the  court.  In  Macrow  v.  Railway  Co.,  2  L.  II.  6  Q.  B.  (ill'. 
the  question  coming  before  the  court  as  to  what  was  properly 
included  by  the  term  baggage,  the  true  rule  was  said  by  Cockburn, 
C.  J.,  to  be:  — 

"  That  whatever  the  passenger  takes  with  him  for  his  personal 
use  or  convenience,  according  to  the  habits  or  wants  of  the  particu- 
lar class  to  which  he  belongs,  either  with  reference  to  the  immediate 
necessities  or  to  the  ultimate  purpose  of  the  journey,  must  be  con- 
sidered as  personal  luggage.  This  would  include,  not  only  all 
articles  of  apparel,  whether  for  use  or  ornament,  but  also  the  gun 
case  or  fishing  apparatus  of  the  sportsman,  the  easel  of  the  artist  on 
a  sketching  tour,  or  the  books  of  the  student,  and  other  articles  of 
an  analogous  character,  the  use  of  which  is  personal  to  the  traveller, 
and  the  taking  of  which  has  arisen  from  the  fact  of  his  journeying. 
.  .  .  But  merchandise,  or  furniture,  or  household  goods,  would  not 
come  within  the  description  of  ordinary  luggage,  unless  accepted  as 
such  by  the  carrier." 

It  is  also  held  by  the  authorities  that  a  reasonable  quantity  of  his 
tools  is  proper  baggage  for  a  mechanic.  Davis  v.  Railroad  Co.,  10 
How.  Pr.  330;  Porter  v.  Hilderbrand,  14  Pa.  St.  129.  The  case  of 
Davis  v.  Railroad  Co.,  supra,  and  Porter  v.  Hilderbrand,  supra,  are 
cited  by  Thompson  in  his  work  on  Carriers,  and  also  by  Hutchinson 
in  his  book  on  the  same  subject;  and  are  also  referred  to  in 
other  text-books  without  criticism  or  other  unfavorable  comment. 
Thompson  on  Carriers,  513;  Hutchinson  on  Carriers,  §  083. 

These  cases  are  quite  similar  to  the  one  at  bar,  excepting  that  the 
tools  in  controversy  are  more  valuable.  In  Davis  v.  Railroad  Co., 
the  contents  of  the  trunk  consisted  of  ordinary  wearing  apparel,  a 
gun,  and  a  set  of  harness-maker's  tools,  worth  ten  dolku-s.  The 
plaintiff  was  a  harness-maker  by  trade,  and  it  was  proved  that  it  is 
usual  for  those  of  that  trade,  in  going  from  place  to  place,  to  take 
their  tools  with  them  in  their  trunks.  In  Porter  v.  Hilderbrand, 
the  plaintiff  was  a  carpenter,  and  his  trunk  contained  $45  of  cloth- 
ing and  $55  of  carpenters'  tools.  He  was  moving  from  Pennsylvania 
to  the  State  of  Ohio,  and  he  delivered  his  trunk  to  the  owners  of  a 
stage  to  carry  it  from  Pittsburgh  to  Wooster,  Ohio.  In  that  case, 
the  court  speaking  through  Bell,  J.,  said:  — 

"Another  question  disclosed  by  the  record  is,  whether  a  recover} 
can  be  had  for  the  value  of  the  carpenters'  tools,  which  the  jury 
have  found  were  a  reasonable  part  of  the  plaintiff's  baggage.  .  .  . 
The  right  to  carry  tools  as  baggage  is  unquestionably  open  to  abi 
but  in  the  language  of  the  court  in  McGill  v.  Rowand,  •">  Barr.  151, 
the  correction  is  to  be  found  in  the  intelligence  and  integrity  of  the 


338  CARRIERS    OF   GOODS. 

jury  called  to  determine  under  the  circumstances  of  each  case.  It 
is,  it  is  said,  a  common  thing  for  journeymen  mechanics  to  carry  in 
their  trunks,  with  clothing,  a  small  and  select  portion  of  their  tools. 
To  this  practice  I  see  no  such  objection  as  ought  to  put  this  kind  of 
property  out  of  the  protection  afforded  to  the  necessaries  a  traveller 
is  compelled  by  legitimate  considerations  to  transport  with  his  per- 
son. Upon  this  score,  the  judgment  rendered  below  is,  I  think, 
unobjectionable." 

The  evidence  shows  that  plaintiff  below  was  a  watchmaker  and 
jeweller;  that  he  went  to  Parsons  to  work  at  watchmaking;  that  the 
tools  in  his  trunk  were  intended  for  repairing  watches  and  were 
necessary  for  his  work;  and  that  they  were  the  tools  usually  carried 
by  a  person  of  his  trade  or  occupation.  The  plaintiff  is  therefore, 
strictly  speaking,  a  mechanic,  and  a  reasonable  quantity  of  his  tools 
is  proper  baggage.  The  term  "  baggage  "  was  fairly  defined  to  the 
jury  in  the  instructions  of  the  court,  and  we  do  not  think  any  of  the 
instructions  were  misleading  or  prejudicial,  although  as  a  whole 
they  were  unnecessarily  prolix.  What  was  a  reasonable  quantity  of 
tools  for  plaintiff  below  to  carry,  was  a  question  for  the  jury. 

The  judgment  of  the  District  Court  must  be  affirmed.1 


GREAT  NORTHERN   RAILWAY,    Appellant,    v. 

SHEPHERD. 

8  Exch.  30.     1852. 

Parke,  B.  In  this  case,  there  being  no  special  contract,  the 
defendants  were  bound  to  carry  the  plaintiff  and  his  luggage,  which 
term,  according  to  the  true  modern  doctrine  on  the  subject,  com- 
prises clothing  and  such  articles  as  a  traveller  usually  carries  with 
him  for  his  personal  convenience ;  perhaps  even  a  small  present,  or 
a  book  for  the  journey,  might  be  included  in  the  term;  but  certainly 
not  merchandise  or  materials  bought  for  the  purpose  of  being  manu- 
factured and  sold  at  a  profit.     Angeil  on  Carriers,  sec.  115;  Story  on 

1  In  the  case  at  bar,  we  are  of  opinion  that  the  feather-bed  was  not  a  part  of  the 
personal  baggage  of  the  plaintiff,  and  that  the  defendants  are  not  liable  for  it  under 
their  contract.  The  case  finds  that  it  was  not  intended  for  personal  use  during  the 
voyage.  It  was  an  article  of  furniture,  and  it  is  difficult  to  see  how  it  can  any  more 
properly  be  called  personal  baggage  than  any  other  article  of  household  furniture. 
The  presiding  judge  correctly  ruled  that,  upon  the  facts  proved,  this  was  a  question  of 
law.  Morton,  J.,  in  Connolly  v.  Warren,  106  Mass.  146.  Ace.  :  Macrow  v.  Great 
Western  R.  Co.,  L.  R.  6  Q.  B.  612.  Contra :  Onimit  v.  Henshaw,  35  Vt.  604,  622. 
The  manuscript  books  of  a  student  may  be  baggage :  Hopkins  v.  Westcott,  6  Blatch. 
64;  or  the  "price  book"  of  a  travelling  salesman:  Gleason  v.  Transportation  Co., 
32  Wis.  85. 


WHO    ARE    COMMON    CARRIERS. 

Bailments,  526,  5th  ed.  note.  In  this  case,  nine-tenths  of  the  art: 
were  of  the  latter  description.  Now,  if  the  plaintiff  hud  can 
these  articles  exposed,  or  had  packed  them  in  the  shape  of  mer- 
chandise, so  that  the  company  might  have  known  what  they  w< 
and  they  had  chosen  to  treat  them  as  personal  luggage,  and  carry 
them  without  demanding  any  extra  remuneration,  they  would  have 
been  responsible  for  the  loss.  So  also  upon  any  limit  in  point  of 
weight  if  the  company  chose  to  allow  a  passenger  to  carry  more, 
they  would  be  liable.  The  judge  states,  that  there  was  no  evidence 
as  to  whether  defendants  carried  passengers  by  this  excursion  train 
upon  the  terms  contained  in  the  6th  section  of  the  7  &  8  Vict.  c.  85 
unless  the  court  shall  be  of  opinion  that  the  fact  that  the  charg< 
each  passenger  was  less  than  a  penny  a  mile  was  of  itself  sufficient 
proof  that  they  carried  upon  those  terms.  That,  however,  it  is  not 
necessary  to  decide;  because,  assuming  that  they  did  not  carry  on 
those  terms,  the  defendants  only  agreed  for  the  stipulated  fare  to 
carry  passengers  and  everything  which  constituted  personal  luggage, 
and  were  not  bound  to  carry  merchandise  or  articles  wholly  uncon- 
nected with  luggage.  If,  indeed,  they  had  notice,  or  might  have 
suspected  from  the  mode  in  which  the  parcels  were  packed  that 
they  did  not  contain  personal  luggage,  then  they  ought  to  have 
objected  to  carry  them;  but  the  case  finds  that  they  had  no  notice 
of  what  the  packages  contained.  Whether  this  was  done  for  any 
fraudulent  purpose,  it  is  not  necessary  to  inquire;  because,  even  if 
there  was  no  fraudulent  intent,  the  plaintiff  has  so  conducted  him- 
self that  the  company  were  not  aware  that  he  was  not  carrying  lug- 
gage, and  therefore  the  loss  must  be  borne  by  him.  It  was  con- 
tended that,  after  the  accident  happened,  a  new  special  contract  was 
entered  into,  by  which  the  company  undertook  to  take  care  of  the 
plaintiff's  luggage.  But  this  argument  fails.  If,  indeed,  an  aid- 
dent  had  happened  to  a  perfect  stranger,  and  the  company  had 
agreed  without  compensation  to  forward  his  luggage,  they  would, 
according  to  Coggs  v.  Bernard,  be  responsible  for  its  loss.  But  in 
this  case  the  plaintiff  was  a  passenger,  and  the  intention  of  the  com- 
pany was  only  to  carry  into  effect  the  original  contract;  and  from 
that  alone  their  obligation  arises.  I  am  therefore  of  opinion  thai 
the  company  are  not  liable;  and  the  judgment  of  the  court  below 
must  be  reversed. 


KANSAS   CITY,   F.   S.   &   M.   R.   CO.   v.  McGAHEY. 

63  Ark.  344;  38  S.  W.  R.  659 ;  36  L.  R.  A.  781 ;  58  Am.  St.  R.  111.     1897. 

[For  this  case,  see  infra,  p.  636.] 


340 


CARRIERS    OF    GOODS. 


MICHIGAN   CENTRAL  R.  CO.  v.    CARROW. 
73  111.  348.     1874. 

Scott,  J.  .  .  .  By  common  custom  the  personal  luggage  of  the 
traveller  is  carried  without  extra  charge.  Passenger  carriers  do  not 
assume  to  carry  anything  as  baggage  except  such  things  as  may  be 
necessary  to  the  convenience  and  comfort  of  the  traveller,  and  per- 
haps sufficient  money  to  defray  the  expenses  of  the  journey.  This 
fact  is  well  known  to  all  persons  who  seek  passage  in  railway  car- 
riages. With  a  great  majority  of  travellers  the  amount  of  baggage 
carried  is  of  no  considerable  value.  The  companies  have  no 
arrangements  for  the  carrying  and  safe  keeping  of  costly  articles. 
The  contract  is  simply  for  passage  and  the  usual  personal  baggage 
not  exceeding  in  weight  the  amount  prescribed  by  the  regulations 
of  the  company. 

If  this  implied  contract  with  the  carrier  of  passengers  is  to  be 
varied,  modified,  or  enlarged,  it  must  be  by  direct  notice  of  the 
contents  of  the  package  offered  as  baggage  which,  in  effect,  would 
amount  to  a  special  contract.  The  company  may  rely  upon  the 
representation  that  whatever  is  offered  as  baggage  is  that,  and  noth- 
ing else.  The  law  seems  to  be  settled  that  it  need  not  inquire  as  to 
its  contents.  If  the  passenger  has  merchandise  checked  as  baggage 
without  such  notice,  the  company  cannot  be  held  liable  as  a  com- 
mon carrier.  Cahill  v.  L.  &  N.  W.  Ry.  Co.,  10  C.  B.  n.  s.  154; 
Chicago  &  Cincinnati  Air  Line  R.  R.  Co.  v.  Marcus,  supra ;  Collins 
v.  Boston  &  Maine  R.  R.  Co.,  10  Cush.  506;  Great  Northern  Rail- 
road Co.  v.  Shepherd,  8  W.  H.  &  G.  30  [338];  Batsou  v.  Donovan, 
4  B.  &  A.  21. 

Upon  the  doctrine  of  these  cases,  it  is  very  clear  appellant  was 
not  a  common  carrier  of  the  goods  destroyed.  Appellee  gave  the 
agents  of  the  company  no  notice  whatever  his  trunk  contained  valu- 
able merchandise.  No  one  knew  better  than  appellee  the  company 
did  not  carry  merchandise  as  baggage,  free  of  charge,  and  without 
notice  of  the  contents  of  the  trunk  there  is  neither  reason  nor 
authority  for  holding  the  company  liable  as  an  insurer  against  loss. 
In  Cahill  v.  L.  &  N.  W.  Ry.  Co.,  supra,  Willis,  J.,  very  aptly  re- 
marks that "  where  a  passenger  takes  a  ticket  at  the  ordinary  charge, 
he  must,  according  to  common  sense  and  common  experience,  be 
taken  to  contract  with  the  railway  company  for  the  carriage  of  him- 
self and  his  personal  luggage  only,  and  that  he  can  no  more  extend 
the  contract  to  the  conveyance  of  a  single  package  of  merchandise 
than  of  his  entire  worldly  possessions."  So  we  say  in  this  case,  it 
was  not  in  the  power  of  appellee  to  extend  the  liability  of  the  com- 
pany on  account  of  his  own  convenience.     There  was  no  undertak* 


WHO   ARE    COMMON    CARRIERS.  341 

ing  to  carry  merchandise,  and  lie  Lad  no  right  to  impose  bis  goods 
subtilely  upon  the  company,  and  then  seek  to  make  the  obligation 
chat  of  a  common  carrier.  If  he  desired  to  have  his  merchandise  or 
wares  go  upon  the  train  with  him,  it  was  but  just  to  the  carrier  he 
should  disclose  its  nature  and  value,  and  if  the  company  then  chose 
to  treat  it  as  baggage,  the  liability  of  a  common  carrier  would  attach, 
but  not  otherwise. 

The  case  of  the  Great  Northern  Railway  Co.  y.  Shepherd,  supra. 
is  a  case  where  the  passenger  had  a  quantity  of  ivory  handles  in  his 
baggage.  No  notice  was  given,  and  it  was  not  so  packed  as  to  indi- 
cate to  the  carrier  it  contained  merchandise.  It  was  decided  the 
carrier  of  passengers  for  hire  is,  at  common  law,  only  bound  to  carry 
their  personal  luggage.  Therefore,  if  a  passenger  has  merchandise 
among  his  luggage,  or  so  packed  the  carrier  has  no  notice  it  is  mer- 
chandise, he  is  not  responsible  for  its  loss. 

The  case  of  Cahill  v.  L.  &  N.  W.  Ry.  Co.,  supra,  in  some  of  its 
features  is  like  the  case  at  bar.  The  plaintiff  was  a  commercial 
traveller.  He  had  checked,  as  baggage,  a  box  covered  with  a  black 
leather  case,  which  had  painted  across  the  top,  on  each  end,  the  word 
"  Glass  "  in  large  white  letters,  and  also  the  name  of  his  employer 
in  like  legible  letters.  It  contained  valuable  merchandise.  No 
information  was  given  by  the  plaintiff  to  the  company's  servants, 
nor  was  any  inquiry  made  by  them  as  to  the  contents  of  the  box. 
It  was  held,  in  an  action  against  the  company  for  the  loss  of  the 
box,  that,  inasmuch  as  it  contained  merchandise  only  and  no  per- 
sonal luggage,  there  was  no  contract  to  carry  it,  and  consequently  it 
was  not  liable  for  the  loss. 

The  case  was  reargued  in  the  Exchequer  Chamber,  before  a  full 
bench.  13  J.  Scott,  818.  Cockburn,  C.  J.,  agreed  with  the  jui 
of  the  Court  of  Common  Pleas,  if  the  company  chose  to  take  as 
ordinary  baggage  that  which  it  knew  to  be  merchandise,  it  is  not 
competent,  in  the  event  of  loss,  to  claim  exemption  from  liability 
on  the  ground  the  article  consists  of  merchandise.  "  But,"  he  adds. 
"  on  the  contrary,  if  a  passenger  who  knows  or  ought  to  know  that  he 
is  only  entitled  to  have  his  ordinary  personal  luggage  carried  frei 
charge,  choose  to  carry  with  him  merchandise  for  which  the  com- 
pany is  entitled  to  charge,  he  cannot  claim  to  be  compensated  in 
respect  to  any  loss  or  injury,  by  the  company  to  whom  he  has 
abstained  from  giving  notice  of  the  contents." 

The  fact  the  box  was  marked  "Glass"  was  not  a  circumstance,  in 
the  opinion  of  the  court,  that  would  charge  the  company  with  notice 
it  contained  merchandise.  It  could  regard  it  as  an  indication  it  was 
to  be  handled  with  more  than  ordinary  care.  This  case  is  a  much 
stronger  one  than  the  present  plaintiff's  case.  There  was  very  much 
more  to  put  the  company  on  inquiry.  It  was  ruled,  however,  it 
was  not  the  duty  of  the  company  to  impure  as  to  the  contents  oi 
the   luggage,  but   it  was  the  duty  of  the  plaintiff  himself  to  give 


342  CAKRIEKS   OF   GOODS. 

notice,  and  his  failure  to  do  so  was  sufficient  to  bar  a  recovery.  To 
the  same  effect  is  the  case  of  The  Belfast  &  Ballymena  R.  R.  Co.  v. 
Keys,  9  House  of  Lords  Cases,  556.  The  case  of  Dunlap  v.  The 
International  Steamboat  Co.,  98  Mass.  371,  is  in  entire  conformity 
with  the  views  expressed  in  the  English  cases.  .   .   .* 


HANNIBAL   RAILROAD  v.    SWIFT. 

12  Wall.  (U.  S.)  262.     1870. 

Field,  J.  ...  A  considerable  portion  of  the  property,  it  is  true, 
was  not  personal  baggage,  which  the  company  was  obliged  to  trans- 
port under  the  contract  to  carry  the  person ;  nor  does  it  appear  that 
it  was  offered  to  the  company  as  such.  It  embraced  buffalo  robes, 
hair  mattresses,  pillows,  writing-desks,  tables,  statuary,  and  pic- 
tures, in  relation  to  which  there  could  be  no  concealment,  and  it  is 
not  pretended  that  any  was  attempted.  Where  a  railroad  company 
receives  for  transportation,  in  cars  which  accompany  its  passenger 
trains,  property  of  this  character,  in  relation  to  which  no  fraud  or 
concealment  is  practised  or  attempted  upon  its  employees,  it  must 
be  considered  to  assume,  with  reference  to  it,  the  liability  of  com- 
mon carriers  of  merchandise.  It  may  refuse  to  receive  on  the  pas- 
senger train  property  other  than  the  baggage  of  the  passenger,  for  a 
contract  to  carry  the  person  only  implies  an  undertaking  to  transport 
such  a  limited  quantity  of  articles  as  are  ordinarily  taken  by  travel- 
lers for  their  personal  use  and  convenience;  such  quantity  depend- 
ing, of  course,  upon  the  station  of  the  party,  the  object  and  length 
of  the  journey,  and  many  other  considerations.  But  if  property 
offered  with  the  passenger  is  not  represented  to  be  baggage,  and  it 
is  not  so  packed  as  to  assume  that  appearance,  and  it  is  received  for 
transportation  on  the  passenger  train,  there  is  no  reason  why  the 
carrier  shall  not  be  held  equally  responsible  for  its  safe  conveyance 
as  if  it  were  placed  on  the  freight  train,  as  undoubtedly  he  can  make 
the  same  charge  for  its  carriage.2 


1  Ace:  Humphreys  v.  Perry,  148  U.  S.  627. 

2  But  in  Blumantle  v.  Fitchburg  R.  Co.,  127  Mass.  322,  a  package  was  received 
appearing  to  be  merchandise,  and  the  court  say:  In  the  case  at  bar,  the  plaintiff  offered 
and  delivered  the  bundles  as  his  personal  baggage,  and  requested  that  they  might  be 
checked  as  such ;  and  the  baggage-master  gave  him  checks  for  them  accordingly,  as  he 
was  bound  to  do  for  personal  baggage  of  passengers,  by  the  St.  of  1874,  c.  372,  §  136. 
There  was  no  evidence  that  either  the  plaintiff  or  the  baggage-master  agreed  or  intended 
that  they  should  be  carried  as  freight,  or  that  the  baggage-master  had  any  authority  to 
receive  freight  on  a  passenger  train,  or  to  bind  the  corporation  to  carry  merchandise  as 
personal  baggage.     The  case  cannot  be  distinguished  in  principle  from  the  previous  de- 


WHO    ARE    COMMON    CARKIERS  343 

HENDERSON   v.   LOUIS  VILLI-:,  etc.  R.  CO. 
123  U.  S.  61.     1887. 

This  was  an  action  against  a  railroad  company.  Judgment  foi 
defendant.     Plaintiff  sued  out  this  writ  of  error. 

Justice  Gray.  This  was  an  action  against  a  railroad  corporation 
by  a  passenger  to  recover  for  the  loss  of  a  handbag  and  its  contents. 

The  plaintiff,  a  married  woman,  suing  by  authority  of  her  hus- 
band, alleged  in  the  original  petition  that  on  October  25,  L883,  the 
defendant,  being  a  common  carrier  of  goods  and  persons  for  hire, 
received  her  into  one  of  its  ears  as  a  passenger  from  her  summer 
residence  at  Pass  Christian,  in  the  State  of  Mississippi,  to  her  winter 
residence  in  New  Orleans,  having  in  her  hand,  and  in  her  immediate 
custody,  possession,  and  control,  a  leather  bag  of  a  kind  usuallv  car- 
ried by  women  of  her  condition  and  station  in  society,  containing 
$5800  in  bank  bills,  and  jewelry  worth  $4075;  that  while  the  plain- 
tiff, holding  the  bag  in  her  hand,  was  attempting  to  close  an  open 
window  next  her  seat,  through  which  the  cold  wind  was  blowing 
upon  her,  the  bag  and  its  contents,  by  some  cause  unknown  to  her, 
accidentally  fell  from  her  hand  through  the  open  window  upon  the 
railroad;  that  she  immediately  told  the  conductor  of  the  train  that 
the  bag  contained  property  of  hers  of  great  value,  and  requested  him 
to  stop  the  train,  and  to  allow  her  to  leave  the  car  and  retake  the 
bag  and  its  contents;  but  he  refused  to  do  so,  although  nothing  hin- 
dered or  prevented  him,  and,  against  her  protestations,  caused  the 
train  to  proceed  at  great  speed  for  three  miles  to  Kay  St.  Louis, 
where  he  stopped  the  train,  and  she  despatched  a  trusty  person  to 
the  place  where  the  baghad  fallen;  but  before  he  arrived  there,  the 
bag,  with  its  contents,  was  stolen  and  carried  away  by  some  person 
or  persons  to  the  plaintiff  unknown,  "and  was  wholly  lost  to  the 
plaintiff  by  the  gross  negligence  of  the  defendant  as  aforesaid.'' 

•  ••••••••••a 

The  mere  statement  of  the  case  is  sufficient  to  demonstrate  the 
correctness  of  the  judgment  below. 

The  facts  alleged  in  the  original  petition  constitute  no  breach  or 
neglect  of  duty  on  the  part  of  the  defendant  towards  the  plaintiff. 
She  did  not  intrust  her  bag  to  the  exclusive  custody  and  care  of  the 
defendant's  servants,  but  kept  it  in  her  own  immediate  possession, 

cisions  of  this  court,  already  cited.  Evidence  tending  to  show  that  the  baggage-ra 
knew  or  supposed  the  bundles  to  contain  merchandise,  or  that  other  passengers  bad 
similar  bundles,  would  not  warrant  the  jury  in  finding  that  the  defendant  agreed  to 
transport  the  plaintiff's  merchandise,  or  became  liable  therefor  as  a  common  carrier. 
The  instructions  under  which  the  case  was  submitted  to  the  jury  won-  therefore 
erroneous. 


344  CARKIEKS    OF    GOODS. 

without  informing  the  defendant  of  the  value  of  its  contents,  until 
after  it  had  dropped  from  her  hand  through  the  open  window.  Even 
if  no  negligence  is  to  be  imputed  to  her  in  attempting  to  shut  the 
window  with  the  bag  in  her  hand,  yet  her  dropping  the  bag  was  not 
the  act  of  the  defendants  or  its  servants,  nor  anything  that  they 
were  bound  to  foresee  or  guard  against;  and  after  it  had  happened 
she  had  no  legal  right,  for  the  purpose  of  relieving  her  from  the 
consequences  of  an  accident  for  which  they  were  not  responsible,  to 
require  them  to  stop  the  train,  short  of  a  usual  station,  to  the  delay 
and  inconvenience  of  other  passengers,  and  the  possible  risk  of  col- 
lision with  other  trains. 

Judgment  affirmed. 


FIRST   NATIONAL   BANK  v.    MARIETTA,    etc.  R.  CO. 

20  Ohio  St.  259.     1870. 

SCOTT,    J.  .  .  .  . 

Upon  well-settled  principles  the  defendant  became  bound,  in 
consideration  of  the  fare  paid  by  McElroy,  to  use  the  highest 
degree  of  diligence  and  care  in  transporting  him  to  his  place  of 
destination.  And  this  contract  for  the  carriage  of  his  person 
necessarily  included  the  wearing  apparel  which  accompanied  his 
person,  such  reasonable  sum  of  money  as  might  be  in  good  faith 
carried  with  him  for  the  expenses  of  the  journey,  together  with  all 
such  articles,  to  a  reasonable  extent,  at  least,  as  are  ordinarily 
carried  or  worn  upon  the  person  for  purposes  of  personal  use,  con- 
venience, or  ornament;  and  we  agree  with  counsel  for  plaintiff  that 
the  contract  also  included  the  carriage  of  "his  baggage  delivered  to 
the  defendant  as  such  to  be  carried,  to  the  extent  of  an  ordinary  and 
reasonable  wardrobe  for  one  in  his  station  in  life,  together  with  such 
articles  as  are  usually  found  in  the  paraphernalia  of  a  traveller." 

But  the  notes  for  the  loss  of  which  this  action  is  brought  can 
neither  be  regarded  as  a  part  of  the  passenger's  baggage,  nor  as" 
money  intended  to  defray  the  expenses  of  the  journey.  The  statements 
of  the  petition  show  that  the  notes  were  simply  being  transmitted, 
for  business  purposes,  from  Greenfield  to  Cincinnati,  and  were  not 
intended  to  be  used  by  the  passenger  for  defraying  the  expenses  of 
his  journey  or  otherwise.  The  trip  may  have  been  undertaken  on 
account  of  the  money,  but  the  money  was  not  carried  on  account  of 
the  trip.  Nor  was  the  defendant  intrusted  with  the  custody  of  these 
notes,  or  specially  charged  with  any  care  or  oversight  in  respect  to 
them.  They  remained  in  the  exclusive  custody  and  control  of 
McElroy.  And  as  they  were  clearly  not  included  in  the  contract 
for  the  transportation  of  the  passenger  and  his  baggage,  and  were 


WHO    ARE   COMMON    CARRIERS. 

not  subjected  to  the  custody  of  the  carrier,  it  is  difficult  to  see  I 
he  can  be  held  liable  for  a  want  of  care  over  them. 

We  do  not  call  in  question  the  right  of  a  passenger  to  carry  about 
his  person,  for  the  mere  purpose  of  transportation,  large  sum 
money,  or  small  parcels  of  great  value,  without  communicating  the 
fact  to  the  carrier,  or  paying  anything  for  their  transportation.  Bi  I 
he  can  only  do  so  at  his  own  risk,  in  so  far  as  the  acts  of  third  per- 
sons, or  even  ordinary  negligence  on  the  part  of  the  carrier  or  his 
servants  is  concerned.  For  this  secret  method  of  transportation 
would  be  fraud  upon  the  carrier,  if  he  could  thereby  be  subjected  to 
an  unlimited  liability  for  the  value  of  parcels  never  delivered  to 
him  for  transportation,  and  of  which  he  has  no  knowledge,  and  h;is 
therefore  no  opportunity  to  demand  compensation  for  the  risk 
incurred.  No  one  could  reasonably  suppose  that  a  liability  which 
might  extend  indefinitely  in  amount  would  be  gratuitously  assumed, 
even  though  the  danger  to  be  apprehended  should  arise  from  the 
inadvertent  negligence  of  the  carrier  himself.1 


LEWIS  v.   NEW  YORK   SLEEPING  CAR   CO. 

143  Mass.  267.     1887. 

Two  actions,  each  with  a  count  in  contract  and  a  count  in  tort,  to 
recover  for  the  loss  of  the  plaintiff's  property  alleged  to  have  been 
stolen  while  the  plaintiff  was  riding  as  a  passenger  in  the  defendant's 
car,  through  the  negligence  of  the  defendant's  servant.   .   .   . 

The  jury  returned  a  verdict  for  the  plaintiff  in  each  case;  and  the 
defendant  alleged  exceptions. 

Morton,  C.  J.  The  use  of  sleeping-cars  upon  railroads  is  modern. 
and  there  are  few  adjudicated  cases  as  to  the  extent  of  the  duties 
and  liabilities  of  the  owners  of  such  cars.  They  must  be  ascertained 
by  applying  to  the  new  condition  of  things  the  comprehensive  and 
elastic  principles  of  the  common  law.  When  a  person  buys  the  right 
to  the  use  of  a  berth  in  a  sleeping-car,  it  is  entirely  clear  that  the 
ticket  which  he  receives  is  not  intended  to.  and  does  not,  express  nil 
the  terms  of  the  contract  into  which  he  enters.  Such  ticket,  like 
the  ordinary  railroad  ticket,  is  little  more  than  a  symbol  intended  to 
show  to  the  agents  in  charge  of  the  car  that  the  possessor  has  entered 
into  a  contract  with  the  company  owning  tin'  ear.  by  which  h< 
entitled  to  passage  in  the  car  named  on  the  ticket. 

Ordinarily,  the  only  communication  between  the  parties  is  that 
the  passenger  buys,  and  the  agent  of  the  car  company  sells,  a  ticket 

1  Ace.  :  Weeks  v.  N.  Y.,  N.  H.,  &  H.  R.  R.  Co.,  72  X.  V.  50. 


346  CARRIERS    OF   GOODS. 

between  two  points ;  but  the  contract  thereby  entered  into  is  implied 
from  the  nature  and  usages  of  the  employment  of  the  company. 

A  sleeping-car  company  holds  itself  out  to  the  world  as  furnishing 
safe  and  comfortable  cars,  and,  when  it  sells  a  ticket,  it  impliedly 
stipulates  to  do  so.  It  invites  passengers  to  pay  for,  and  make  use 
of,  the  cars  for  sleeping,  all  parties  knowing  that,  during  the  greater 
part  of  the  night,  the  passenger  will  be  asleep,  powerless  to  protect 
himself  or  to  guard  his  property.  He  cannot,  like  the  guest  of  an 
inn,  by  locking  the  door,  guard  against  danger.  He  has  no  right  to 
take  any  such  steps  to  protect  himself  in  a  sleeping-car,  but,  by  the 
necessity  of  the  case,  is  dependent  upon  the  owners  and  officers  of 
the  car  to  guard  him  and  the  property  he  has  with  him  from  danger 
from  thieves  or  otherwise. 

The  law  raises  the  duty  on  the  part  of  the  car  company  to  afford 
him  this  protection.  While  it  is  not  liable  as  a  common  carrier  or 
as  an  innholder,  yet  it  is  its  duty  to  use  reasonable  care  to  guard  the 
passengers  from  theft,  and  if,  through  want  of  such  care,  the  per- 
sonal effects  of  a  passenger  such  as  he  might  reasonably  carry  with 
him  are  stolen,  the  company  is  liable  for  it.  Such  a  rule  is  required 
by  public  policy,  and  by  the  true  interests  of  both  the  passenger 
and  the  company;  and  the  decided  weight  of  authority  supports  it. 
Woodruff  Sleeping  &  Parlor  Coach  Co.  v.  Diehl,  84  Ind.  474; 
Pullman  Car  Co.  v.  Gardner,  3  Penny.  78;  Pullman  Palace  Car  Co. 
v.  Gaylord,  23  Am.  Law  Reg.  n.  s.  788. 

The  notice  by  which  the  defendant  company  sought  to  avoid  its 
liability  was  not  known  to  the  plaintiff,  and  cannot  avail  the 
defendant. 

The  defendant  contends  that  there  was  no  evidence  of  negligence 
on  its  part.  The  fact  that  two  larcenies  were  committed  in  the 
manner  described  in  the  testimony  is  itself  some  evidence  of  the 
want  of  proper  watchfulness  by  the  porter  of  the  car;  add  to  this 
the  testimony  that  the  porter  was  found  asleep  in  the  early  morn- 
ing, that  he  was  required  to  be  on  duty  for  thirty-six  hours  con- 
tinuously, which  included  two  nights,  and  a  case  is  presented  which 
must  be  submitted  to  the  jury. 

We  have  considered  all  the  questions  which  have  been  argued  in 
the  two  cases  before  us,  and  are  of  opinion  that  the  rulings  at  the 
trial  were  correct. 

Exceptions  overruled.1 

1  Contra:  Pullman  P.  C.  Co.  v.  Lowe,  28  Nebr.  239. 


WHO   AKE    COMMON    CARRIERS. 

CLARK   v.    BURNS. 
118  Mass.  275.     1875. 

Contract,  for  the  value  of  a  watch,  against  the  owners  of  a  steam- 
ship as  common  carriers,  with  counts  in  tort  for  negligence,  and  also 
counts  charging  them  as  innkeepers.  The  case  was  submitted  to  tin- 
Superior  Court  on  an  agreed  statement  of  facts  in  substance  as 
follows :  — 

The  defendants  are  the  owners  of  the  Cunard  line  of  steamers, 
called,  which  run  between  Boston  and  Liverpool,  and  New  Fork  and 
Liverpool,  and  are  common  carriers  of  passengers  and  freight  betv, 
those  places.  On  November  28,  1871,  the  plaintiff  left  Liverpool  on 
board  the  steamship  "Calabria,"  one  of  the  Cunard  line,  for  New 
York,  as  a  first-class  passenger.  The  plaintiff  paid  for  his  ticket, 
by  which  he  became  entitled  to  the  usual  accommodation  on  board 
the  ship  for  sleeping  and  lodging,  and  to  be  supplied  with  proper 
food.  He  took  with  him  and  wore  on  his  person  in  the  daytime  the 
watch  referred  to  in  the  declaration.  He  occupied  a  state-room  with 
two  berths,  one  of  which  was  occupied  by  another  passenger,  placed 
there  by  the  defendants,  and  it  is  admitted  that  the  watch  was  not 
taken  by  him.  The  state-room  had  a  lock,  but  no  key  or  other 
fastening.  When  the  plaintiff  went  to  bed  on  Sunday  evening, 
December  3,  at  nine  o'clock,  he  put  his  watch  in  the  pocket  made 
for  it  in  his  waistcoat,  which  he  hung  by  the  arm-holes  on  a  hook  in 
his  state-room,  intended  for  clothes  to  be  hung  on.  He  did  not 
fasten  his  state-room  door,  having  no  means  to  do  so.  The  lamp  in 
the  state-room  was  so  placed  that  the  steward  had  to  come  into  the 
state-room  and  go  to  the  farther  end  thereof  to  light  it  and  to  put 
the  light  out,- and  was  in  the  habit  of  doing  so  at  the  time  appointed, 
by  the  rules  and  regulations  of  the  ship,  for  lighting  the  lamps  and 
putting  out  the  lights.  Passengers  are  not  allowed  to  light  or  put 
out  the  lamps.  The  lamps  are  put  out  at  ten  o'clock,  p.m.  Winn 
the  plaintiff  first  arose  to  dress  himself  at  the  usual  hour  on  Monday 
morning,  his  watch  was  missing.  He  notified  the  captain  imme- 
diately of  his  loss,  and  the  purser  made  a  thorough  search  of  the 
state-room,  and  then  a  careful  examination  of  the  plaint  ill's  trunk 
and  the  trunk  of  the  gentleman  who  occupied  the  other  berth  in  the 
state-room,  but  without  success. 

The  plaintiff  had  the  usual  accommodations   given  to  first-cl 
passengers  on  board  the  defendants'  steamers,  and  it  is  the  usual 
custom  of  the  defendants  not  to  permit  the  locking  of  state- r, 
doors,  nor  to  permit  passengers  to  control  the  lamps  in  their  state- 
rooms or  the  windows  thereof,  but  to  give  the  stewards  access  at  all 
times  to  the  state-rooms  in  order  that  passengers  may  not,  by  bhe 


348  CARRIERS   OF   GOODS. 

use  of  matches,  or  by  imprudently  opening  their  windows,  incur  the 
risk  to  themselves,  their  fellow-passengers,  and  the  ship  and  cargo, 
of  fire,  and  of  the  entrance  of  water  through  the  windows,  and  also 
that  they  may  be  accessible  in  case  of  accident  or  danger,  or  of  their 
own  helplessness  from  sickness  or  other  causes. 

When  the  plaintiff  reached  Boston  he  called  on  the  defendants' 
agent,  Mr.  Alexander,  of  whom  he  purchased  his  ticket,  and  re- 
quested of  him  payment  for  the  loss  sustained  by  him,  and  at  the 
same  time  complained  that  the  state-rooms  were  not  allowed  to  be 
locked,  to  which  Alexander  replied,  giving  as  a  reason  for  the  rule, 
that  the  state-rooms  must  be  accessible  for  the  safety  of  the  ship, 
cargo,  and  passengers.  The  plaintiff  had  crossed  the  ocean  three 
times  before  in  boats  of  the  Cunard  line  and  had  never  had  a  key  or 
fastening  to  his  state-room,  and  understood  that  it  was  against  the 
rule  or  custom  of  these  ships.  The  watch  was  worth  one  hundred 
and  twenty-five  dollars.     The  pleadings  may  be  referred  to. 

If  upon  the  foregoing  facts  the  plaintiff  was  entitled  to  recover, 
judgment  was  to  be  rendered  for  $125,  and  interest  from  date  of  the 
writ,  with  costs;  otherwise  judgment  for  the  defendants,  with  costs. 

Upon  the  facts  agreed,  Brigham,  C.  J.,  ruled  that  the  plaintiff 
could  not  maintain  this  action,  and  ordered  judgment  for  the 
defendants;  and  the  plaintiff  alleged  exceptions. 

Gray,  C.  J.  The  liabilities  of  common  carriers  and  innkeepers, 
though  similar,  are  distinct.  No  one  is  subject  to  both  liabilities  at 
the  same  time,  and  with  regard  to  the  same  property.  The  liability 
of  an  innkeeper  extends  only  to  goods  put  in  his  charge  as  keeper  of 
a  public-house,  and  does  not  attach  to  a  carrier  who  has  no  house  and 
is  engaged  only  in  the  business  of  transportation.  The  defendants, 
as  owners  of  steamboats  carrying  passengers  and  goods  for  hire,  were 
not  innkeepers.  They  would  be  subject  to  the  liability  of  common 
carriers  for  the  baggage  of  passengers  in  their  custody,  and  might 
perhaps  be  so  liable  for  a  watch  of  the  passenger  locked  up  in  his 
trunk  with  other  baggage.  But  a  watch,  worn  by  a  passenger  on 
his  person  by  day,  and  kept  by  him  within  reach  for  use  at  night, 
whether  retained  upon  his  person,  or  placed  under  his  pillow,  or  in 
a  pocket  of  his  clothing  hanging  near  him,  is  not  so  intrusted  to 
their  custody  and  control  as  to  make  them  liable  for  it  as  common 
carriers.  Steamboat  Crystal  Palace  v.  Vanderpool,  16  B.  Mon.  302; 
Tower  v.  Utica  Railroad,  7  Hill,  47;  Abbott  v.  Bradstreet,  55  Maine. 
530;  Pullman  Palace  Car  Co.  v.  Smith,  7  Chicago  Leg.  News,  237  [179]. 

Whether  the  defendants'  regulations  as  to  keeping  the  doors  of 
the  state-rooms  unlocked,  the  want  of  precautions  against  theft,  and 
the  other  facts  agreed,  were  sufficient  to  show  negligence  on  the  part 
of  the  defendants,  was,  taking  the  most  favorable  vieAv  for  the 
plaintiff,  a  question  of  fact,  upon  which  the  decision  of  the  court 
below  was  conclusive.     Fox  v.  Adams  Express  Co.,  116  Mass.  292. 

Exceptions  overruled. 


DELIVERY    TO    CABRIEE.  349 


2.    DELIVERY  TO  CARRIER. 

GROSVENOR,    Respondent,    v.    NEW   YORK    CENT.    It.    CO. 

Appellant. 

39  N.  Y.  34.     1868. 

The  complaint  in  this  action  alleges  that,   in  April,  1861,  tin- 
plaintiff  delivered  to  the  defendant,  at  Clifton  Springs,  a  cutter,  to 
be  carried  by  it  to  Buffalo,  and  paid  the  defendant  therefor,  which 
the   defendant   agreed   to  do,   and    that  by  the   negligence   of   the 
defendant,  it  became  wholly  lost  to  the  plaintiff.     The  answer  denies 
these  allegations.     The   issue  was   tried   in   the   Superior   Court  of 
.Buffalo,  before  Justice  Clinton  and  a  jury,  when  the  following  facts 
were  proved:  That  the  plaintiff  called  upon  the  defendant's  depot 
agent  at  Clifton,  and  paid  him  the  freight  on  the  cutter,  and  the 
fare  of  his  servant  to  Buffalo,  and  told  him  that  he  would  send  them 
down  in  the   morning,  to  go  by  the  afternoon  train.     The  servant 
brought  the  cutter,  by  plaintiff's   direction,  to   have   it  shipped   to 
Buffalo,  and  arrived  at  the  depot  about  six  o'clock  in  the  morning, 
and  placed  it  on  the  platform  of  the  freight-house,  next  the  railroad 
track,  with  one  end  next  the  freight-house,  and  the  other  toward  the 
track,  and  went  back  after  the  thills;  that  he  returned  in  about  an 
hour  with  them  and  stopped  in  front  of  the  passenger  depot,  about 
six  rods  from  the  freight-house,  and  saw  the  defendant's  baggage- 
man, Hall,  who,  at  the  time,  was  sweeping  out  the  depot,  and  said 
to  him,  there  is  some  stuff  to  go  to  Buffalo.     He  asked  on  what 
train,   to  which   he  replied,    the    one   o'clock,    and   then   took  the 
thills  and  laid  them  with  the  cutter.     He  had  not  then  seen  the 
baggage-man  do  anything  with  the  freight,  and  did  not  ask   for  or 
take  any  receipt  for  the  property;  that  one,   Sutherland,   was  the 
defendant's  agent  there,  and  had  been  such  agent  for  three  years, 
and  was  alone  authorized  to  receive  and  deliver  freight,  and  resided 
in  the  depot.     The  defendant  proved   Hall  was  baggage-man,  and 
had  never  received  freight  or  given  receipts  therefor,  except  by  his 
especial  directions,  and  had  no  general  orders  on  that  subject.     That 
freight  is  always  received  and  delivered  at  the  east  end  of  the  freight- 
house.     That  there  is   a  platform  alongside  of   the   freight-house, 
next   the   track,   and   comes  within  a  few  inches    of  a  freight-car 
on  the  track,  which   is  used   for  receiving  and   delivering   freight 
from  and  to  the  cars,  when  it  is  taken  into  or  from  the  freight-house 
and  weighed;  and  that  it  is  received  from  and  delivered  at  the  i 
end  of  the  depot.     That  the  cutter  when  on  the  platform,  where  it 
was  left  by  plaintiff's  servant,  could  not  be  seen  from  the  passenger 
depot.     That  the  cutter,  placed  on  the  platform,  as  stated,  would 


350  CARRIERS    OF    GOODS. 

project  over  it  nine  inches.  That  two  or  three  hours  after  it  was 
left,  a  car  in  a  passing  train  caught  the  cutter  and  broke  it,  and  the 
first  knowledge  the  agent  had  of  its  being  there,  was  seeing  it  pass 
his  office  at  the  passenger  depot  on  this  car,  broken.  That  it  was 
the  invariable  custom  for  the  shipper  to  mark  property  and  its  des- 
tination, before  the  defendant  received  it,  when  he  weighed  it  and 
ascertained  the  freight;  and  that  the  plaintiff's  servant  did  mark  a 
box,  which  he  brought  with  the  cutter  in  the  afternoon,  before  ship- 
ment, and  said  he  wanted  it  to  go  to  Buffalo. 

At  the  close  of  the  plaintiff's  testimony,  and  at  the  close  of  the 
evidence,  the  defendant  made  a  motion  for  a  nonsuit,  upon  the 
ground,  that,  upon  the  undisputed  facts,  the  plaintiff  was  not  entitled 
to  recover,  which  motion  was  denied  by  the  court,  and  an  exception 
taken  to  the  decision  by  the  defendant. 

The  jury  found  a  verdict  for  the  plaintiff  for  $78.16,  for  which 
judgment  with  costs  was  entered.  The  defendant  appealed  to  the 
General  Term  of  that  court,  where  the  judgment  was  affirmed.  The 
defendant  thereupon  appealed  to  this  court. 

Miller,  J.  I  am  of  the  opinion  that  the  court  erred  in  refusing 
to  nonsuit  the  plaintiff  upon  the  trial.  To  render  a  party  liable  as 
a  common  carrier,  it  must  be  established  that  the  property  was 
actually  delivered  to  the  common  carrier  or  to  some  person  duly 
authorized  to  act  on  his  behalf.  The  responsibility  of  the  carrier 
does  not  commence  until  the  delivery  is  completed.  Angell  on  Car- 
riers, §  129;  Story  on  Bailments,  §  532.  It  is  not  enough  that  the 
property  is  delivered  upon  the  premises,  unless  the  delivery  is  accom- 
panied by  notice  to  the  proper  person.  Packard  v.  Getman,  6  Cow. 
757;  Trevor  v.  U.  &  S.  B.  B.  Co.,  7  Hill,  47;  Blanchard  v.  Isaacs, 
3  Barb.  388;  2  Kent  Com.  604;  1  Pars,  on  Con.  654.  The  liability 
of  the  carrier  attaches  only  from  the  time  of  the  acceptance  of  the 
goods  by  him.  Story  on  Bailments,  §  533;  6  Cow.  supra.  To  com- 
plete the  delivery  of  the  property  within  the  rules  laid  down  in 
the  authorities,  I  think  it  is  also  essential  that  the  property  should 
be  placed  in  such  a  position  that  it  may  be  taken  care  of  by  the 
agent  or  person  having  charge  of  the  business,  and  under  his  imme- 
diate control.  It  must  be  accepted  and  received  by  the  agent.  It 
appears  in  the  case  at  bar  that  the  cutter  of  the  plaintiff  was  placed 
upon  the  platform  of  the  defendant's  freight-house,  by  a  servant  of 
the  plaintiff,  the  freight  having  been  previously  paid,  to  be  trans- 
ported to  Buffalo.  At  the  time  when  it  was  thus  left,  a  baggage- 
man in  the  defendant's  employment,  who  was  then  engaged  in 
sweeping  out  the  depot,  was  notified  that  there  was  some  freight  to 
go  to  Buffalo  in  the  noon  train.  The  servant  of  the  plaintiff  testifies 
that  he  had  seen  this  person  receive  and  put  freight  on  the  cars,  and 
at  this  time  he  apparently  had  charge  of  the  depot,  although  the 
proof  on  the  part  of  the  defendant  shows  that  another  employee  was 
the  real  freight  agent,  and  the  person  with  whom  the  contract  was 


DELIVERY    TO    CAERiER.  35] 

made  for  the  carriage  of  the  property,  and  that  the  baggage-man  had 
no  authority  to  receive  it.  Upon  this  state  of  facts,  I  am  inclined 
to  think  that  the  plaintiff  had  established  sufficient  prima  feu 
submit  to  the  jury  the  question  whether  the  baggage-man  was  am 
ized  to  receive  the  property,  and  whether  the  notice  fco  him  wa 
itself  sufficient.  Persons  dealing  with  railroad  corporations, 
parties  engaged  in  the  transportation  of  freight,  have  a  right  to  con- 
sider that  those  usually  employed  in  the  business  of  receiving  and 
forwarding  it,  have  ample  authority  to  deal  with  them.  It  is 
enough  to  establish  a  delivery,  in  the  first  instance,  to  prove  that  a 
person  thus  acting  received  and  accepted  the  property  for  the  pur- 
pose of  transportation,  and  even  although  it  subsequently  appears 
that  another  employee  was  actually  the  agent  having  charge  of  this 
department  of  business,  yet  the  company  who  sanction  the  perform- 
ance of  this  duty  by  other  persons  in  their  employment,  and  thus 
hold  out  to  the  world  that  they  are  authorized  agents,  are  not  at 
liberty  to  relieve  themselves  from  responsibility  by  repudiating 
their  acts.  So  far,  then,  as  this  branch  of  the  case  is  concerned,  it 
was  at  least  a  question  of  fact,  to  be  submitted  to  the  jury  under 
proper  instructions,  whether  the  baggage-man  of  the  defendanl 
whom  it  is  claimed  by  the  plaintiff  the  cutter  was  delivered,  was  the 
agent  of  the  defendant,  duly  authorized  to  receive  the  same,  and 
whether  notice  of  its  delivery  was  given  to  him  as  such  agent.  But 
whether  he  was  such  agent,  or  the  duty  of  receiving  freight  devolved 
upon  another  person,  the  defendant  could  not  be  held  liable  under 
any  circumstances,  without  an  actual  and  complete  delivery  of  the 
property  into  the  possession  of  the  corporation,  and  under  its  con- 
trol. This,  I  think,  was  not  done.  The  undisputed  testimony 
shows  that  the  cutter  was  placed  upon  the  platform,  and  that  within 
two  or  three  hours  afterward,  it  was  carried  away  and  broken  to 
pieces  by  a  passing  train  of  cars.  The  fact  that  it  was  thus  carried 
away  evinces  that  it  was  carelessly  exposed  by  the  plaintiff's  ser- 
vant; that  the  destruction  of  the  cutter  was  occasioned  by  his  negli- 
gence, and  that  the  delivery  was  not  as  perfect  and  complete  as  it 
should  have  been. 

The  accident  would  not  have  happened  had  the  cutter  been  placed 
beyond  the  reach  of  passing  trains.  It  was  not  enough  that  the 
agent  was  notified,  to  make  out  a  valid  acceptance  and  delivery. 
The  place  of  delivery  was  important,  and  it  was  equally  essential 
that  due  care  should  be  exercised.  Suppose  the  servant  bad  left 
the  cutter  on  the  track  of  the  railroad,  and  notified  the  agent,  would 
the  defendant  have  been  responsible?  Clearly  not,  for  the  apparent 
reason  that  there  was  no  delivery  upon  the  premises,  no  surrender  of 
the  property  into  the  possession  of  the  agent.  Until  it  was  actually 
delivered,  the  agent  was  under  no  obligation  to  take  charge  of  the 
property,  even  if  notified.  It  is  apparent  that  the  plain  iff  wa 
fault  in  not  delivering  the  property  to  the  defendant,  and  in  leaving 


352  CARRIERS    OF   GOODS. 

it  in  an  exposed  condition,  which  caused  its  destruction;  and,  hav- 
ing failed  to  establish  this  material  part  of  his  case,  should  have 
been  nonsuited.  As  a  new  trial  must  be  granted  for  the  error  stated, 
it  is  not  important  to  examine  the  other  questions  raised  and 
discussed. 

Judgment  reversed,  and  new  trial  granted,  with  costs  to  abide  the 
event. 


GREEN  v.    MILWAUKEE   &   ST.    PAUL  R.   CO. 

38  la.  100.     1874. 

Action  to  recover  the  value  of  a  trunk  and  contents  of  clothing 
alleged  to  have  been  lost  or  destroyed  while  in  possession  of  defend- 
ant as  a  carrier.  There  was  a  trial  to  a  jury,  and  a  verdict  rendered 
against  plaintiff  under  an  instruction  of  the  court  to  the  effect  that 
there  was  no  evidence  showing  that  the  trunk  was  delivered  to 
defendant  or  its  agents.  From  a  judgment  rendered  upon  this  ver- 
dict plaintiff  appeals. 

Beck,  C.  J.  The  evidence  discloses  the  fact  that  plaintiff,  desir- 
ing to  take  passage  by  an  early  morning  train  on  defendant's  road 
at  Boscobel,  in  the  State  of  Wisconsin,  for  Decorah,  sent  her  trunk 
the  evening  before  by  a  drayman  to  defendant's  depot.  It  was  left 
by  the  drayman  in  the  waiting-room,  and  as  there  were  no  employees 
of  defendant  about  the  premises,  no  notice  thereof  was  given  to  any 
one.  This  was  after  business  hours  in  the  evening.  It  was  shown 
that  plaintiff  had  quarterly,  for  three  years,  been  in  the  habit  of 
making  the  same  journey  she  was  about  to  take,  and  had  always 
sent  her  trunk  the  evening  before,  as  she  did  in  this  case,  and  that 
other  travellers  were  in  the  habit  of  doing  the  same  thing  when  they 
went  by  the  early  train.  The  drayman  testified  that  he  had  often 
left  baggage  at  the  depot  under  similar  circumstances,  but  that  his 
custom  was  to  notify  the  depot  agent  or  servant  of  defendant. 

Upon  this  evidence  the  court  directed  the  jury  that  there  was  no 
proof  of  the  delivery  of  the  trunk  to  defendant  or  its  servants. 

It  is  not  claimed  that  defendant  would  be  liable  without  a  delivery, 
either  actual  or  constructive,  of  the  property  to  its  agent  or  servant. 
That  a  delivery  may  be  made  at  the  proper  place  of  receiving  such 
baggage  under  the  express  assent  or  authority  of  the  carrier  without 
notice  to  its  employees  will  not,  Ave  presume,  be  disputed.  It  is 
equally  clear  upon  principle  that  this  assent  may  be  presumed  from 
the  course  of  business  or  custom  of  the  carrier.  Upon  evidence  of 
this  character  contracts  based  upon  business  transactions  are  con- 
stantly established.  The  citation  of  authority  is  not  required  to 
support  this  position.  See  Merriam  v.  Hartford  &  N.  H.  R.  R.  Co., 
20  Conn.  354. 


DELIVERY    TO    CARRIER.  353 

The  instruction  which   is   the  foundation  of  plaintiff's  obj 
directs  the  jury  that  there  was  no  evidence  of  a  delivery  of  the  trunk 
to  the  defendant.     In  this  we  think  there  is  error.     Their  \v;ts  evi- 
dence tending  to  show  a  course  of  business  on  the  part  of  defendant, 
a  custom,  to  receive  baggage  left  at  the  station-i  in   this 

case,  without  notice  to  plaintiff's  servants.  Upon  evidence  of  this 
character,  it  was  proper  that  the  facts  should  have  been  left  to  the 
determination  of  the  jury,  whether  there  had  been  a  deliver, 
the  property  within  the  rules  above  announced,  —  wh 
of  business,  a  custom,  had  been  established,  to  the  effect  that  a 
delivery  of  baggage  at  the  station-house  without  notice,  was  regarded 
by  the  defendant  as  a  delivery  to  its  servants,  and  whether  plum- 
tiff's  trunk  was  received  under  this  custom.  It  is  a  well-settled  rule 
that  the  courts  cannot  determine  upon  the  sufficiency  of  evidence  to 
authorize  a  verdict  where  there  is  a  conflict,  or  some  evidence  upon 
the  whole  case.  In  such  a  case  an  instruction  to  the  effect  that  there 
is  no  evidence,  and  directing  a  verdict  accordingly,  is  erroneous. 
Way  v.  Illinois  Cent.  R.  R.  Co.,  ,35  Iowa,  585. 

The  judgment  of   the  District  Court  is  reversed,   and  the  cause 
remanded. 

Reversed. 


MICHIGAN   SOUTHERN,    etc.  R.  CO.  v.    SHURTZ. 

7  Mich.  515.     1859. 

Martin,  C.  J.  The  principal  question  presented  by  this  case, 
is  whether  the  railroad  company  are  liable  as  common  carriers  for 
the  wheat  deposited  in  their  warehouse,  to  await  orders  for  trans- 
portation, and  a  determination  of  what  shall  be  its  destination.  'We 
think  they  are  not,  nor  should  they  be.  By  their  charter  the  com- 
pany have  no  right  to  charge  as  warehousemen  for  storage  of  goods 
awaiting  transportation;  but  this  disability  does  not  of  itself  create 
any  liability.  When  the  goods  are  delivered  to  be  transported  to  a 
specified  point,  the  liability  of  the  company  as  carriers  commences 
immediately;  but  if  they  are  deposited  to  await  orders, — if  the 
company  cannot  carry  them  because  ignorant  of  the  contemplated 
destination,  or  because  no  destination  has  been  concluded  upon  by 
the  owner,  —  it  would  be  gross  injustice  to  hold  them  subject  to  the 
extraordinary  liabilities  of  common  carriers,  while  thus  awaiting  the 
determination  of  their  owner.  While  the  wheat  was  lying  in  their 
warehouse  awaiting  the  determination  of  Shurtz  as  to  its  destination, 
the  company  cannot  be  regarded  as  anything  more  than  gratuitous 
bailees,  and  are  liable  only  as  such.  If  the  intention  of  Shurto 
cannot  be  clearly  seen  to  have  been  that  it  should  be  transported  to 


354  CARRIERS    OF    GOODS. 

any  particular  place,  how  can  they  be  seen  to  be  carriers  of  it?  Can 
the  company  be  carriers  of  a  thing  not  to  be  carried?  But  when 
Shurtz  had  determined  to  what  point  he  would  have  his  wheat  trans- 
ported, and  had  notified  the  company  of  such  determination,  then 
their  liability  as  carriers  commenced,  and  it  became  their  duty  to 
forward  it  without  delay.  This  is  the  obligation  of  their  charter, 
and  a  want  of  facilities  for  transportation  will  not  relieve  them 
from  that  liability. 


3.    DUTY  TO  SERVE  THE  PUBLIC. 
a.     Without  discrimination. 

CHICAGO   &  N.  W.  RY.  CO.  v.    PEOPLE. 

56  111.  365.     1870. 

Lawrence,  C.  J.  This  was  an  application  for  a  mandamus,  on 
the  relation  of  the  owners  of  the  Illinois  River  elevator,  a  grain 
warehouse  in  the  city  of  Chicago,  against  the  Chicago  and  North- 
western Railroad  Company.  The  relators  seek  by  the  writ  to  com- 
pel the  railway  company  to  deliver  to  said  elevator  whatever  grain 
in  bulk  may  be  consigned  to  it  upon  the  line  of  its  road.  There  was 
a  return  duly  made  to  the  alternative  writ,  a  demurrer  to  the  return, 
and  a  judgment  pro  forma  upon  the  demurrer,  directing  the  issuing 
of  a  peremptory  writ.  From  that  judgment  the  railway  company 
has  prosecuted  an  appeal. 

•  ••••••••••* 

Since  the  10th  of  August,  1866,  the  Chicago  and  Northwestern 
Company,  in  consequence  of  certain  arrangements  and  agreements 
on  and  before  that  day  entered  into  between  the  company  and  the 
owners  of  certain  elevators  known  as  the  "Galena,"  "Northwestern," 
"Munn  &  Scott,"  "Union,"  "City,"  "Munger  and  Armor,"  and 
"Wheeler,"  has  refused  to  deliver  grain  in  bulk  to  any  elevator 
except  those  above  named.  There  is  also  in  force  a  rule  of  the 
company,  adopted  in  1864,  forbidding  the  carriage  of  grain  in  bulk 
if  consigned  to  any  particular  elevator  in  Chicago,  thus  reserving  to 
itself  the  selection  of  the  warehouse  to  which  the  graiu  should  be 
delivered.  The  rule  also  provides  that  grain  in  bags  shall  be 
charged  an  additional  price  for  transportation.  This  rule  is  still  in 
force. 

■  ••••••••••a 

In  the  oral  argument  of  this  case  it  was  claimed,  by  counsel  for 
the  respondent,  that  a  railway  company  was  a  mere  private  corpora' 


DUTY    TO   SERVE   THE    PUBLIC.  355 

tion,  and  that  it  was  the  right  and  duty  of  its  directors  to  conduct 
its  business  merely  with  reference  to  the  pecuniary  interests  of  the 
stockholders.  The  printed  arguments  do  not  go  to  this  extent,  in 
terms,  but  they  are  colored  throughout  by  the  same  idea,  and  in  one 
of  them  we  find  counsel  applying  to  the  Supreme  Court  of  the  United 
States,  and  the  Supreme  Court  of  Pennsylvania,  language  of  severe, 
and  almost  contemptuous,  disparagement,  because  those  tribunals 
have  said  that  "a  common  carrier  is  in  the  exercise  of  a  sort  of 
public  office."  N.  J.  Steam  Nav.  Co.  v.  Merch.  Bank,  6  Hmv.  381; 
Sanford  v.  Railroad  Co.,  24  Penn.  380.  If  the  language  is  not 
critically  accurate,  perhaps  we  can  pardon  these  courts,  when  we 
find  that  substantially  the  same  language  was  used  by  Lord  Holt, 
in  Coggs  v.  Bernard,  2  Lord  Raymond,  909,  the  leading  case  in  all 
our  books  on  the  subject  of  bailments.  The  language  of  that  case 
is,  that  the  common  carrier  "exercises  a  public  employment." 

We  shall  engage  in  no  discussion  in  regard  to  names.  It  is 
immaterial  whether  or  not  these  corporations  can  be  properly  said 
to  be  in  the  exercise  of  "a  sort  of  public  office,"  or  whether  they 
are  to  be  styled  private  or  quasi-public  corporations.  Certain  it  is, 
that  they  owe  some  important  duties  to  the  public,  and  it  only  con- 
cerns us  now  to  ascertain  the  extent  of  these  duties  as  regards  the 
case  made  upon  this  record. 

It  is  admitted  by  respondent's  counsel  that  railway  companies 
are  common  carriers,  though  even  that  admission  is  somewhat  grudg- 
ingly made.  Regarded  merely  as  a  common  carrier  at  common  law. 
and  independently  of  any  obligations  imposed  by  the  acceptance  of 
its  charter,  it  would  owe  important  duties  to  the  public,  from  which 
it  could  not  release  itself,  except  with  the  consent  of  every  person 
who  might  call  upon  it  to  perform  them.  Among  these  duties,  as 
well  defined  and  settled  as  anything  in  the  law,  was  the  obligation 
to  receive  and  carry  goods  for  all  persons  alike,  without  injurious 
discrimination  as  to  terms,  and  to  deliver  them  in  safety  to  the  con- 
signee, unless  prevented  by  the  act  of  God  or  the  public  enemy. 
These  obligations  grew  out  of  the  relation  voluntarily  assumed  by 
the  carrier  toward  the  public,  and  the  requirements  of  public  policy, 
and  so  important  have  they  been  deemed  that  eminent  judges  have 
often  expressed  their  regret  that  common  carriers  have  ever  been 
permitted  to  vary  their  commondaw  liability,  even  by  a  special 
contract  with  the  owner  of  the  goods. 

Regarded,  then,  merely  as  a  common  carrier  at  common  law.  the 
respondent  should  not  be  permitted  to  say  it  will  deliver  ijoods  at 
the  warehouses  of  A.  and  B.,  but  will  not  deliver  at  the  warehouse 
of  C,  the  latter  presenting  equal  facilities  for  the  discharge  of 
freight,  and  being  accessible  on  respondent's  line. 

But  railway  companies  may  well  be  regarded  ;is  under  a  higher 
obligation,  if  that  were  possible,  than  that  imposed  by  the  common 
law,  to  discharge  their  duties  to  the  public  as  common  carriers  fairly 


356  CARRIERS   OF   GOODS. 

and  impartially.     As  has  been  said  by  other  courts,  the  State  has 
endowed  them  with  something  of  its   own  sovereignty,   in  giving 
them  the  right  of  eminent  domain.     By  virtue  of  this  power,  they 
take  the  lands  of  the  citizen  against  his  will  and  can,  if  need  be, 
demolish  his  house.     Is  it  supposed  these  great  powers  were  granted 
merely  for  the  private  gain  of  the  corporators?     On  the  contrary,  we 
all  know  the  companies  were  created  for  the  public  good. 

The  object  of  the  legislature  was  to  add  to  the  means  of  travel 
and  commerce.     If,  then,  a  common  carrier  at  common  law  came 
under  obligations  to  the  public  from  which  he  could  not  discharge 
himself  at  his  own  volition ,  still  less  should  a  railway  company  be 
permitted  to  do  so,  when  it  was  created  for  the  public  benefit  and 
has  received  from  the  public  such  extraordinary  privileges.      Rail- 
way charters  not  only  give  a  perpetual  existence  and  great  power, 
but  they  have  been   constantly  recognized   by  the   courts  of  this 
country  as  contracts  between  the  companies  and  the  State,  imposing 
reciprocal  obligations. 

The  courts  have  always  been,  and  we  trust  always  will  be,  ready 
to  protect  these  companies  in  their  chartered  rights,  but,  on  the 
other  hand,  we  should  be  equally  ready  to  insist  that  they  perform 
faithfully  to  the  public  those  duties  which  were  the  object  of  their 
chartered  powers. 

•         ••••••••• 

The  contract  in  question  is  peculiarly  objectionable  in  its  char- 
acter and  peculiarly  defiant  of  the  obligations  of  the  respondent  to 
the  public  as  a  common  carrier.     If  the  principle  implied  in  it  were 
conceded,  the  railway  companies  of  the  State  might  make  similar 
contracts  with  individuals  at  every  important  point  upon  their  lines, 
and  in  regard  to  other  articles  of  commerce  besides  grain,  and  thus 
subject  the  business  of  the  State  almost  wholly  to  their  control,  as 
a  means  of  their  own  emolument.     Instead  of  making  a  contract 
with  several  elevators,  as  in  the  present  case,  each  road  that  enters 
Chicago  might  contract  with  one  alone  and  thus  give  to  the  owner  of 
such   elevator  an  absolute  and  complete  monopoly  in  the  handling 
of  all  the  grain  that  might  be  transported  over  such  road.     So,  too, 
at  every  important  town  in  the  interior,  each  road  might  contract 
that  all  the  lumber  carried  by  it  should  be  consigned  to  a  particular 
yard.     How  injurious  to  the  public  would  be  the  Creation  of  such  a 
system  of  organized  monopolies   in  the  most  important  articles  of 
commerce,  claiming  existence  under  a  perpetual  charter   from  the 
State,  and,  by  the  sacredness  of  such  charter,  claiming  also  to  set 
the  legislative  will  itself  at  defiance,   it  is  hardly  worth  while  to 
speculate.     It  would  be  difficult  to  exaggerate  the  evil  of  which  such 
a  system  would  be  the  cause,  when  fully  developed  and  managed  by 
unscrupulous  hands. 

Can  it  be  seriously  doubted  whether  a  contract,  involving  such  a 
principle,  and  such  results,  is  in  conflict  with  the  duties  which  the 


DUTY    TO    SERVE    THE    PUBLIC.  357 

company  owes  to  the  public  as  a  common  carrier?  The  fact  that  a 
contract  has  been  made  is  really  of  no  moment,  because,  if  the  com- 
pany can  bind  the  public  by  a  contract  of  this  sort,  it  can  do  the 
same  thing  by  a  mere  regulation  of  its  own,  and  say  to  these  relators 
that  it  will  not  deliver  at  their  warehouse  the  grain  consigned  to 
them,  because  it  prefers  to  deliver  it  elsewhere.  The  contract,  if 
vicious  in  itself,  so  far  from  excusing  the  road,  only  shows  that  the 
policy  of  delivering  grain  exclusively,  at  its  chosen  warehouse 
a  deliberate  policy,  to  be  followed  for  a  term  of  years,  during  which 
these  contracts  run. 

The  principle  that  a  railroad  company  can  make  no  injurious  or 
arbitrary  discrimination  between  individuals  in  its  dealings  with  the 
public,  not  only  commends  itself  to  our  reason  and  sense  of  justice, 
but  is  sustained  by  adjudged  cases.  In  England,  a  contract  which 
admitted  to  the  door  of  a  station,  within  the  yard  of  a  railway  com- 
pany, a  certain  omnibus,  and  excluded  another  omnibus,  was  held 
void.     Harriot  v.  L.  &  S.  W.  R.  R.  Co.,  87  Eng.  Com.  Law,  498. 

In  Gaston  v.  Bristol  &  Exeter  Railroad  Company,  95  Eng.  Com. 
Law,  641,  it  was  held  that  a  contract  with  certain  ironmongers,  to 
carry  their  freight  for  a  less  price  than  that  charged  the  public,  was 
illegal,  no  good  reason  for  the  discrimination  being  shown. 

In  Crouch  v.  The  L.  &  X.  W.  R.  Co.,  78  Eng.  Com.  Law,  254.  it 
was  held,  a  railway  company  could  not  make  a  regulation  for  the 
conveyance  of  goods  which,  in  practice,  affected  one  individual  only. 

In  Sandford  v.  Railroad  Company,  24  Penn.  382,  the  court  held, 
that  the  power  given  in  the  charter  of  a  railway  company  to  regu- 
late the  transportation  of  the  road  did  not  give  the  right  to  grant 
exclusive  privileges  to  a  particular  express  company.  The  court 
say,  "If  the  company  possessed  this  power,  it  might  build  up  one 
set  of  men  and  destroy  others;  advance  one  kind  of  business  and 
break  down  another,  and  make  even  religion  and  politics  the  tests 
in  the  distribution  of  its  favors.  The  rights  of  the  people  are  not 
subject  to  any  such  corporate  control." 

We  refer  also  to  Rogers'  Locomotive  Works  v.  Erie  R.  R.  Co., 
5  Green,  380,  and  State  v.  Hartford  &  X.  H.  R.  Co.,  29  Conn.  538.. 

It  is  insisted  by  counsel  for  the  respondent  that,  even  if  the 
relators  have  just  cause  of  complaint,  they  cannot  resort  to  the  writ 
of  mandamus.  We  are  of  opinion,  however,  that  they  can  have  an 
adequate  remedy  in  no  other  way,  and  that  the  writ  will  therefore 
lie. 

The  judgment  of  the  court  below  awarding  a  peremptory  manda- 
mus must  be  reversed,  because  it  applies  to  the  Galena  division  of 
respondent's  road,  as  well  as  to  the  Wisconsin  and  Milwaukee 
divisions.  If  it  had  applied  only  to  the  latter,  we  should  have 
affirmed  the  judgment.  The  parties  have  stipulated  that,  in  case  of 
reversal,  the  case  shall  be  remanded,  with  leave  to  the  relators  to 


358  CARRIERS    OF    GOODS. 

traverse  the  return.  We  therefore  make  no  final  order,  but  remand 
the  case,  with  leave  to  both  parties  to  amend  their  pleadings,  if 
desired,  in  view  of  what  has  been  said  in  this  opinion. 

Judgment  reversed. 


AYEES   v.   CHICAGO   &  N.   W.    EY.   CO. ,  Appellant. 

71  Wis.  372.     1888. 

Appeal  from  the  Circuit  Court  for  Sauk  County. 

This  case  was  here  on  a  question  of  pleading  upon  a  former  appeal. 
58  Wis.  537.  The  amended  complaint  is  to  the  effect  that  the 
defendant,  being  a  common  carrier  engaged  in  the  transportation  of 
live-stock,  and  accustomed  to  furnish  cars  for  all  live-stock  offered, 
was  notified  by  the  plaintiffs,  on  or  about  October  13,  1882,  to  have 
four  such  cars  for  the  transportation  of  cattle,  hogs,  and  sheep  at  its 
station  La  Valle,  and  three  at  its  station  Eeedsburg,  ready  for  load- 
ing on  Tuesday  morning,  October  17,  1882,  for  transportation  to 
Chicago;  that  the  defendant  neglected  and  refused  to  provide  such 
cars  at  either  of  said  stations  for  four  days,  notwithstanding  it  was 
able  and  might  reasonably  have  done  so;  and  also  neglected  and 
refused  to  carry  said  stock  to  Chicago  with  reasonable  diligence,  so 
that  they  arrived  there  four  days  later  than  they  otherwise  would 
have  done;  whereby  the  plaintiffs  suffered  loss  and  damage,  by 
decrease  in  price  and  otherwise,  $1700. 

The  answer,  in  effect,  admitted  the  defendant's  incorporation  with 
the  privileges  alleged;  "that  it  was  at  times  engaged  in  the  trans- 
portation over  its  roads  of  live-stock  when  and  if  it  was  able  to  do 
so,  and  was  accustomed  to  furnish  suitable  cars  therefor  upon  reason- 
able notice  when  within  its  power  to  do  so;  and  to  receive,  transport, 
and  deliver  such  live-stock  with  reasonable  despatch,  but  only  upon 
special  contracts  at  the  time  entered  into  between  the  shipper  and 
this  defendant,  and  upon  such  terms  and  conditions  as  should  be 
agreed  upon  in  writing;  that  one  of  the  lines  of  this  defendant's 
railway  is  located  as  in  said  amended  complaint  stated."  The 
answer  also,  in  effect,  alleged  that  "within  a  reasonable  time,  and 
as  soon  as  it  reasonably  could,  and  as  soon  as  it  was  within  its 
power  to  do  so,"  after  the  application  of  the  plaintiffs  for  such  cars, 
the  defendant  "forwarded  four  suitable  and  empty  cars  to  La  Valle," 
and  "three  suitable  and  empty  cars  to  Eeedsburg,"  which  cars  were 
severally  forwarded  with  reasonable  despatch,  and  arrived  in  due 
course  and  as  soon  as  they  could  with  reasonable  despatch  be  for- 
warded over  its  line;  that  at  the  times  of  such  respective  shipments 
the  plaintiffs  entered  into  an  agreement  in  writing  with  the  defend- 
ant for  the  transportation  of  said  stock  at  special  rates,  and  in  con- 


DUTY   TO    SERVE    THE    PUBLIC. 


359 


sideration  thereof  it  was  agreed  that  the  defendant  should  not  be- 
liable  for  loss  from  the  delay  of  trains  not  caused  by  the  defendant's 
negligence. 

At  the  close  of  the  trial  the  jury  returned  a  special  verdict  to  the 
effect,  (1)  at  the  times  named  the  plaintiffs  were  copartners  :it  Reeds- 
burg,  engaged  in  buying  and  shipping  live-stock  to  the  Chicago 
market  for  sale;  (2)  that  at  the  times  stated  the  defendant  was  a 
common  carrier,  and  as  such  engaged  in  the  transportation  of  live- 
stock, and  accustomed  to  furnish  cars  for  and  transport  all  live-stock 
offered  for  that  purpose;  (3)  that  one  of  its  lines  ran  from  La  Valle 
and  Reedsburg  to  Chicago ;  (4)  that  October  13,  1882,  the  plaintiffs, 
being  fully  apprised  of  the  state  of  the  Chicago  market  for  live-stock 
and  prices,  proceeded  to  buy  therefor  seven  car-loads  of  cattle,  hogs, 
and  sheep,  four  to  be  loaded  at  La  Valle  and  three  at  Reedsburg: 
(5,  6,7,  8,  9,  10,  14)  that  the  plaintiffs  notified  the  defendant's 
agents  at  the  respective  stations,  October  13,  1882,  to  have  such 
cars  in  readiness  at  said  stations  respectively,  October  17,  1882,  and 
that  such  notices  were  reasonable,  and  such  agents  promised  to  order 
the  cars  and  have  them  in  readiness  at  the  time;  (11)  that  two  cars 
were  furnished  at  Reedsburg,  October  17,  1882,  and  one  October  19, 
1882;  (12)  that  the  four  were  furnished  at  La  Valle,  October  19, 
1882;  (13)  that  the  defendant  furnished  two  as  soon  as  it  reasonably 
could,  but  five  it  did  not;  (15)  that  the  plaintiffs  received  no  notice 
before  October  17,  1882,  that  the  cars  would  not  be  furnished  as 
ordered;  (16,  17,  18)  that  prior  to  that  time,  and  with  the  expecta- 
tion that  the  cars  would  be  on  hand  as  ordered,  the  plaintiffs  had 
bought  sufficient  stock  to  load  said  several  cars,  and  had  the  same 
at  said  respective  stations  on  the  morning  of  October  17,  1882;  (19) 
that  the  defendant,  being  able  to  furnish  such  cars,  disregarded  its 
duty  as  a  common  carrier  of  live-stock  in  not  having  the  same  on 
hand  when  ordered;  (20)  that  had  the  cars  been  so  furnished,  they 
would  have  arrived  at  Chicago  on  the  morning  of  October  IS,  1882; 
(21)  as  it  was,  two  arrived  thereon  Thursday,  October  19, 1882,  a.m., 
and  five  on  Friday,  October  20,  1882,  at  5.45  p.m.  ;  (22,  23,  24)  that 
the  market  value  of  hogs  in  Chicago,  on  Friday,  October  20,  was 
$7.36  per  hundred,  on  Saturday,  October  21,  was  $7.11,  and  on 
Monday,  October  23,  $6.81;  (25,26,  27)  that  the  loss  on  the  hogs, 
by  reason  of  depreciation  of  the  market,  was  $140.08;  that  the  total 
damages  of  the  plaintiffs  on  all  the  stock  were  $825.97,  made  up  of 
the  following  items,  to  wit:  Taking  care  of  and  feeding  stock,  $50; 
shrinkage  on  hogs,  cattle,  and  sheep,  $408.35;  depreciation  in  value 
on  hogs  and  sheep,  $172.58;  and  interest  on  the  above  sums  until 
the  rendition  of  the  verdict,  $195.04. 

The  defendant  thereupon  moved  for  judgment  in  its  favor  upon 
the  verdict  and  record,  which  was  denied.  Thereupon  the  defendant 
moved  to  set  aside  the  verdict,  and  for  a  new  trial,  upon  the  grounds 
that  the  verdict  is  against  the  weight  of  the  evidence,  and  lor  errors 


360    '  CARRIERS   OP    GOODS.. 

of  the  court  in  its  charge  to  the  jury  and  in  its  rulings  on  the  trial, 
and  because  the  damages  were  excessive  and  contrary  to  the  proofs, 
which  motion  was  denied.  Thereupon,  and  upon  the  motion  of  the 
plaintiffs,  judgment  was  ordered  in  their  favor  on  the  special  verdict 
for  $825.97  damages  and  costs.  From  the  judgment  entered  thereon 
accordingly  the  defendant  appeals. 

Cassoday,  J.     There  is  no  finding  of  any  agreement  on  the  part 
of  the  defendant  to  have  the  cars   in  readiness  at  the  stations  on 
Tuesday   morning,    October   17,    1882.     There   is    no  "testimony   to 
support  such  a  finding.     One  of  the   plaintiffs  testified,   in  effect, 
that  he  told  the  agent  that  he  would  want  the  cars  on  the  morning 
of  the  day  named ;  that  the  agent  took  down  the  order,  put  it  on  his 
book,   and  said,  "All  right,"  he  would  try  and  get  them,  but  that 
they  were  short  because  they  were  then  using  more  cars  for  other 
purposes;  that  nothing  more  was  said.     It  appears  in  the  case  that 
the  cars  were  in  fact  furnished.     It  also  appears  that,  as  the  ship- 
ments were  made,  special  written  contracts  therefor  were   entered 
into  between  the   parties,   whereby   it  was,  in  effect,  agreed  and 
understood  that  the  plaintiffs  should  load,  feed,  water,  and  take  care 
of  such  stock  at  their  own  expense  and  risk,  and  that  they  would 
assume  all  risk  of  injury  or  damage  that  the  animals  might  do  to 
themselves  or  each  other,  or  which  might  arise  by  delay  of  trains; 
that  the  defendants  should  not  be  liable  for  loss  by  jumping  from 
the  cars  or  delay  of  trains  not  caused  by  the  defendant's  negligence. 
The  court,  in  effect,  charged  the  jury  that  there  was  no  evidence  of 
any  negligence  on  the  part  of  the  defendant  causing  delay  in  any 
train  after  shipment,    and  hence  that  the  delay  of  the   two  cars 
admitted  to  have  been  furnished  in  time  was  not  before  them   for 
consideration.     This  relieves  the  case  from  all  liability  on  contract. 
It  also  narrows  the  case  to  the  defendant's  liability  for  the  delay  of 
two  clays  in  furnishing  the  five  cars  at  the  stations  named,  as  ordered 
by  the  plaintiffs,  and  in  the  absence  of  any  contract  to  do  so. 

In  Richardson  v.  C.  &  N.  W.  R.  Co.,  61  Wis.  601,  18  Am.  &  Eng. 
R.  Cas.  530,  it  was,  in  effect,  held  competent  for  a  railroad  company 
engaged  in  the  business  of  transporting  live-stock  to  exempt  itself 
by  express  contract  "  from  damage  caused  wholly  or  perhaps  in  part 
by  the  instincts,  habits,  propensities,  wants,  necessities,  vices,  or 
locomotion  of  such  animals."  And  it  was  then  said:  "Since  the 
action  is  not  based  upon  contract,  the  plaintiff  must  recover,  if  at, 
all,  by  reason  of  the  defendant's  liability  as  a  common  carrier  upon 
mere  notice  to  furnish  cars  and  a  readiness  to  ship  at  the  time 
notified.  Did  such  notice  and  readiness  to  ship  create  such  liability? 
We  have  seen  that  a  carrier  of  live-stock  may,  to  at  least  a  certain 
extent,  limit  its  liability.  Whether  the  defendant  was  accustomed 
to  so  limit  its  liability,  or  to  carry  all  live-stock  tendered  upon 
notice,  without  restriction,  does  not  appear  from  the  record.  If  it 
was  accustomed  to  so  limit,  and  the  limitation  was  legal,  it  should 


DUTY    TO    SERVE    THE    PUBLIC.  361 

at  least  have  been  so  alleged,  together  with  an  offer  to  comply  with 
the  customary  restriction.     If  it  was  accustomed  to  carry  all  li 
stock  offered  upon  notice  and  tender,  and  without  restriction,  then 
it  would  be  difficult  to  see  upon  what  ground  it  could  discrimina 
against  the  plaintiff  by  refusing  to  do  for  him  what  it  was  constantly 
in  the  habit  of  doing  for  others." 

In  that  case  there  was  a  failure  to  allege  any  such  custom  or  hold- 
ing out  on  the  part  of  the  defendant,  or  that  reasonable  notice  had 
been  given  to  the  defendant  to  furnish  suitable  cars  to  the  person 
applying  therefor,  or  that  the  same  was  within  its  power  to  do  so; 
and  hence  the  demurrer  was  sustained.  The  allegations  thus  want- 
ing in  that  case  are  present  in  this  complaint.  It  is,  moreover,  in 
effect  admitted  that  the  defendant  was  at  times,  when  able  to  do  so, 
engaged  in  the  transportation  of  live-stock  over  its  roads,  one  line 
of  which  runs  through  the  stations  in  question;  that  it  was  accus- 
tomed to  furnish  suitable  cars  therefor,  upon  reasonable  notice,  when 
within  its  power  to  do  so;  and  to  receive,  transport,  and  deliver 
such  live-stock  with  reasonable  despatch,  but  only  upon  special  con- 
tracts at  the  time  entered  into  between  the  shipper  and  the  defend- 
ant, and  upon  such  terms  and  conditions  as  should  be  agreed  upon 
in  writing.  It  is,  moreover,  manifest  that  the  defendant  actually 
undertook  to  furnish  the  cars  at  the  time  designated  by  the  plain- 
tiffs; that  it  succeeded  in  furnishing  two  of  them  on  time;  that  there 
was  a  delay  of  two  days  in  furnishing  the  other  five ;  and  that  the 
plaintiffs  were  willing  to,  and  did,  submit  to  the  terms  and  condi- 
tions of  carriage  imposed  by  the  defendant  by  signing  the  special 
written  contracts  mentioned.  It  must  be  assumed,  also,  that  such 
special  written  contracts  were  substantially  the  same  as  all  contracts 
made  by  the  defendant  at  that  season  of  the  year  for  the  shipment 
of  similar  live-stock  under  similar  circumstances.  Otherwise  the 
defendant  would  be  justly  chargeable  with  unlawful  discrimination  ; 
the  right  to  do  which  the  learned  counsel  for  the  defendant  frankly 
disclaimed  upon  the  argument. 

We  are  therefore  forced  to  the  conclusion  that  at  the  time  the 
plaintiffs  applied  for  the  cars  the  defendant  was  engaged  in  the 
business  of  transporting  live-stock  over  its  roads,  including  the  line 
in  question,  and  that  it  was  accustomed  to  furnish  suitable  cars 
therefor,  upon  reasonable  notice,  whenever  it  was  within  its  power 
to  do  so;  and  that  it  held  itself  out  to  the  public  generally  as  such" 
carrier  for  hire  upon  such  terms  and  conditions  as  were  prescribed 
in  the  written  contracts  mentioned.  These  things,  in  our  judgment, 
made  the  defendant  a  common  carrier  of  live-stock,  with  such 
restrictions  and  limitations  of  its  common-law  duties  and  liabilities 
as  arose  from  the  instincts,  habits,  propensities,  wants,  necessities, 
vices,  or  locomotion  of  such  animals,  under  the  contracts  of  carriage. 
This  proposition  is  fairly  deducible  from  what  was  said  in  Richard- 
son v.  C.  &  N.  W.  R.  Co.,  supra,  and  is  supported  by  the  logic  of 


362  CARRIERS    OF    GOODS. 

numerous  cases.  North  Penn.  R.  Co.  v.  Commercial  Bank,  123  U. 
S.  727;  Moulton  v.  St.  P.,  M.  &  M.  R.  Co.,  31  Minn.  85,  12  Am.  & 
Eng.  R.  Cas.  13;  Lindsley  v.  C.  M.  &  St.  P.  R.  Co.,  36  Minn, 539; 
Evans  v.  E.  R.  Co.,  Ill  Mass.  142;  Kimball  v.  R.  &  B.  R.  Co..  26  Vt. 
247,  62  Am.  Dec.  567;  Rixforcl  v.  Smith,  52  N.  H.  355;  Clark  v.  R. 
&  S.  R.  Co.,  14  N.  Y.  570,  67  Am.  Dec.  205;  South  &  N.  A.  R.  Co. 
v.  Henlein,  52  Ala.  606;  Baker  v.  L.  &  N.  R.  Co.,  10  Lea,  304,  16 
Am.  &  Eng.  R.  Cas.  149;  Philadelphia,  W.  &  B.  R.  Co.  v.  Lehman, 
56  Md.  209;  McEadden  v.  M.  P.  R.  Co.,  92  Mo.  343;  3  Am.  &  Eng. 
Cyclop.  Law,  pp.  1-10,  and  cases  there  cited.  This  is  in  harmony 
with  the  statement  of  Parke,  B.,  in  the  case  cited  by  counsel  for  the 
defendant,  that  "at  common  law  a  carrier  is  not  bound  to  carry  for 
every  person  tendering  goods  of  any  description,  but  his  obligation 
■is  to  carry  according  to  his  2)"blic  profession."  Johnson  v.  Midland 
R.  Co.,  4  Exch.  372.  Being  a  common  carrier  of  live-stock  for  hire, 
with  the  restrictions  and  limitations  named,  and  holding  itself  out 
to  the  public  as  such,  the  defendant  is  bound' to  furnish  suitable 
cars  for  such  stock,  upon  reasonable  notice,  whenever  it  can  do  so 
with  reasonable  diligence  without  jeopardizing  its  other  business  as 
such  common  carrier.  Texas  &  P.  R.  Co.  v.  Nicholson,  61  Tex. 
491;  Chicago  &  A.  R.  Co.  v.  Erickson,  91  111.  613;  Rallentine  v.  N. 
M.  R.  Co.,  40  Mo.  491;  Guinn  v.  W.,  St.  L.  &  P.  R.  Co.,  20  Mo. 
App.  453. 

Whether  the  defendant  could  with  such  diligence  so  furnish  upon 
the  notice  given,  was  necessarily  a  question  of  fact  to  be  determined. 
The  plaintiffs,  as  such  shippers,  had  the  right  to  command  the 
defendant  to  furnish  such  cars.  But  they  had  no  right  to  insist 
upon  or  expect  compliance,  except  upon  giving  reasonable  notice  of 
the  time  when  they  would  be  required.  To  be  reasonable,  such 
notice  must  have  been  sufficient  to  enable  the  defendant,  with  reason- 
able diligence  under  the  circumstances  then  existing,  to  furnish  the 
cars  without  interfering  with  previous  orders  from  other  shippers  at 
the  same  station,  or  jeopardizing  its  business  on  other  portions  of  its 
road.  It  must  be  remembered  that  the  defendant  has  many  lines  of 
railroad  scattered  through  different  States.  Along  each  and  all  of 
these  different  lines  it  has  stations  of  more  or  less  importance.  The 
company  owes  the  same  duty  to  shippers  at  any  one  station  as  it 
does  to  the  shippers  at  any  other  station  of  the  same  business 
importance. 

The  rights  of  all  shippers  applying  for  such  cars  under  the  same 
circumstances  are  necessarily  equal.  No  one  station,  much  less  any 
one  shipper,  has  the  right  to  command  the  entire  resources  of  the 
company  to  the  exclusion  or  prejudice  of  other  stations  and  other 
shippers.  Most  of  such  suitable  cars  must  necessarily  be  scattered 
along  and  upon  such  different  lines  of  railroad,  loaded  or  unloaded. 
Many  will  necessarily  be  at  the  larger  centres  of  trade.  The  con- 
ditions of  the  market  are  not  always  the  same,  but  are  liable   to 


DUTY   TO    SERVE    THE    PUBLIC.  363 

* 

fluctuations,  and  may  be  such  as  to  create  a  great  demand  for  such 
cars  upon  one  or  more  of  such  lines,  and  very  little  upon  others. 
Such  cars  should  be  distributed  along  the  different  lines  of  road,  and 
the  several  stations  on  each,  as  near  as  may  be  in  proportion  to  the 
ordinary  business  requirements  at  the  time,  in  order  that  shipments 
may  be  made  with  reasonable  celerity.  The  requirement  of  such 
fair  and  general  distribution  and  uniform  vigilance  is  not  only 
mutually  beneficial  to  producers,  shippers,  carriers,  and  purchasers, 
but  of  business  and  trade  generally.  It  is  the  extent  of  such  busi- 
ness ordinarily  done  on  a  particular  line,  or  at  a  particular  station, 
which  properly  measures  the  carrier's  obligation  to  furnish  such 
transportation.  But  it  is  not  the  duty  of  such  carrier  to  discrimi- 
nate in  favor  of  the  business  of  one  station  to  the  prejudice  and 
injury  of  the  business  of  another  station  of  the  same  importance. 
These  views  are  in  harmony  with  the  adjudications  last  cited. 

The  important  question  is  whether  the  burden  was  upon  the  plain- 
tiffs to  prove  that  the  defendant  might,  with  such  reasonable  dili- 
gence   and    without    thus    jeopardizing    its    other    business,    have 
furnished  such  cars  at  the  time  ordered  and  upon  the  notice  given; 
or  whether  such  burden  was  upon  the  defendant  to  prove  its  ina- 
bility to  do  so.     We  find  no  direct  adjudication  upon  the  question. 
Ordinarily,  a  plaintiff  alleging  a  fact  has  the  burden  of  proving  it. 
This  rule  has  been  applied  by  this  court,  even  where  the  complaint 
alleges  a  negative,  if   it  is   susceptible  of   proof  by  the  plaintiff. 
Helper  v.  State,  58  Wis.  46.     But  it  has  been  held  otherwise  where 
the  only  proof  is  peculiarly  within  the  control  of  the  defendant. 
Mecklem  v.  Blake,  16  Wis.   102;  Beckmann  v.  Henn,  17  Wis.  412; 
Noonan  v.  Ilsley,  21  Wis.  144;  Great  Western  R.  Co.  v.  Bacon,  30 
111.  352;  Brown  v.   Brown,  30   La.    Ann.    511.     Here   it  may  have 
been  possible  for  the  plaintiffs  to  have  proved  that  there  were  at  the 
times  and  stations  named,  or  in  the   vicinity,   empty  cars,  or  cars 
which  had  reached  their  destination  and  might  have  been  emptied 
with  reasonable  diligence,  but  they  could  not  know  or  prove,  except 
by  agents  of  the  defendant,  that  any  of  such  cars  were  not  subject 
to  prior  orders  or  superior  obligations.     The  ability  of  the  defend- 
ant to  so  furnish  with  ordinary  diligence  upon  the  notice  given,  upon 
the  principles  stated,  was,  as  we  think,  peculiarly  within  the  knowl- 
edge of  the  defendant  and  its  agents,  and  hence  the  burden  was  upon 
it  to  prove  its  inability  to  do  so.     Where  a  shipper  applies  to  the 
proper  agency  of   a  railroad  company  engaged  in  the   business   of 
such  common  carrier  of  live-stock  for  such  cars  to  be  furnished  at 
a  time  and  station  named,  it  becomes  the  duty  of  the  company  to 
inform  the  shipper  within  a  reasonable  time,  if  practicable,  whether 
it  is  unable  to  so  furnish,  and  if  it  fails  to  give  such  notice,  and 
has  induced  the  shipper  to  believe  that  the  cars  will  be  in  readiness 
at  the  time  and  place  named,  and  the  shipper,  relying  upon  such 
conduct  of  the  carrier,  is  present  with  his  live-stock  at  the  tune  and 


364  CARRIERS    OF    GOODS. 

place  named,  and  finds  no  cars,  there  would  seem  to  be  no  good 
reason  why  the  company  should  not  respond  in  damages.  Of  course, 
these  observations  do  not  involve  the  question  whether  a  railroad 
company  may  not  refrain  from  engaging  in  such  business  as  a  com- 
mon carrier;  nor  whether,  having  so  engaged,  it  may  not  discontinue 
the  same. 

The  court  very  properly  charged  the  jury,  in  effect,  that  if  all  the 
cars  had  been  furnished  on  time,  as  the  two  were,  it  was  reasonable 
to  presume,  in  the  absence  of  any  proof  of  actionable  negligence  on 
the  part  of  the  defendant,  that  they  would  have  reached  Chicago  at 
the  same  time  the  two  did,  —  to  wit,  Thursday,  October  19, 1882,  a.m., 
—  whereas  they  did  not  arrive  until  Friday  evening.  This  was  in 
time,  however,  for  the  market  in  Chicago  on  Saturday,  October  21, 
1882.  This  necessarily  limited  the  recovery  to  the  expense  of  keep- 
ing, the  shrinkage,  and  depreciation  in  value  from  Thursday  until 
Saturday.  Chicago  &  A.  E.  Co.  v.  Erickson,  91  111.  613.  The  trial 
court,  however,  refused  to  so  limit  the  recovery,  but  left  the  jury 
at  liberty  to  include  such  damages  down  to  Monday,  October  23, 
1882.  For  this  manifest  error,  and  because  there  seems  to  have 
been  a  mistrial  in  some  other  respects,  the  judgment  of  the  Circuit 
Court  is  reversed  and  the  cause  is  remanded  for  a  new  trial. 


SAEGENT  v.   BOSTON  &   LOWELL  EAILBOAD 
COBPOEATION. 

115  Mass.  416.     1874. 

Tort  against  the  Boston  &  Lowell  Eailroad  Corporation,  and  the 
Nashua  &  Lowell  Eailroad  Corporation. 

Wells,  J.  This  action  is  founded  upon  the  supposed  obligation 
of  the  defendants,  as  common  carriers,  to  provide  facilities  and 
accommodations  to  enable  the  plaintiff  to  transact  his  business  as 
expressman  over  and  upon  the  railroads  of  the  defendants.  For  this 
purpose  he  requires  that  his  merchandise  and  parcels  shall  be  trans- 
ported, not  as  freight  under  the  general  charge  and  control  of  the 
managers  and  servants  of  the  railroads,  but  in  their  passenger  trains 
and  under  the  exclusive  control  and  supervision  of  the  plaintiff  and 
his  agents ;  who  also  require  special  accommodations  and  facilities  in 
the  cars  and  stations  of  the  defendants,  for  the  receipt  and  distribu- 
tion of  their  packages.  It  is  not  alleged  that  there  is  any  contract 
for  such  services.  The  contract  which  once  existed,  and  the  course 
of  business  in  previous  years,  are  recited  for  the  purpose  of  showing 
the  manner  in  which  the  business  of  the  plaintiff  had  grown  up  and 
the  good-will  connected  therewith  had  been  gained,  as  bearing  upon 


DUTY    TO    SERVE    THE    PUBLIC. 

the  damages  caused  by  withdrawing  from  him  the  means  for 
further  prosecution.  The  complaint  is,  that  under  the  guise  of  a 
proposal  to  sell  or  let  the  privilege  which  the  plaintiff  and  hi 
dates  had  before  enjoyed,  to  be  used  exclusively  by  the  one  party 
who  would  pay  most  for  it,  the  defendants  had  in  fact  denied  it  to 
all,  and  assumed  the  conduct  of  the  business  of  express  carriage  and 
parcel  delivery  by  its  own  agents  and  servants. 

The  allegation  of  the  second  count,  that  the  defendant  had  refus 
to  receive  and  transport  articles  of  freight  for  the  plaintiff  in  the 
usual  modes  of  transportation  of  freight,  is  abandoned. 

We  know  no  principle  or  rule  of  law  which  imposes  upon  a  rail- 
road corporation  the  obligation  to  perform  service  in  the  transpor- 
tation of  freight,  otherwise  than  a  carrier  of  goods  for  th- 
in accordance  with  their  consignment;  or  which  forbids  it  from 
establishing  uniform  regulations  applicable  alike  to  all  persons  com- 
posing the  public  to  whom  the  service  is  due.  We  are  pointed  to 
no  provision  in  the  charters  of  these  defendants,  or  in  t]  .eral 

laws  relating  to  railroads,  which  subjects  the  use  of  their  roads  to 
the  convenience  or  requirements  of  other  carriers  than  the  corpora- 
tions authorized  to  construct  and  operate  them,  and  such  other  rail- 
roads as  may  have  been  authorized  to  enter  upon  or  unite  with  and 
use  them.     Gen.  Sts.  c.  63,  §  117. 

All  the  provisions  of  law  for  the  regulation  of  railroads  e 
plate  the  unlimited  exercise  by  the  corporation   of  the   rights  and 
duties  of  general  carriers  of  goods  and  passengers:  and  this  involves 
the  right  to  adopt  any  and  all  reasonable  rules  and  regulations  to 
direct  the  mode  in  which  their  business  shall  be  trans  They 

cannot  be  required  to  convert  their  passenger  trains  to  the  purposes 
of  freight  at  the  discretion  of  parties  not  responsible  for  the  manage- 
ment of  the  trains;  nor  can  they  be  compelled  to  admit  others  than 
their  own  agents  and  servants  upon  their  trains  or  to  their  stations 
for  the  custody,  care,  receipt,  and  delivery  of  freight  or  parcels. 

Whether  the  defendants,  in  establishing  and  conducting  the  busi- 
ness of  their  own  "parcel  department,'-*  undertake  to  collect  and 
distribute  goods  and  parcels  in  a  manner  which  involves  acts  ultra 
vires,  does  not  affect  the  question;  nor,  if  they  do  so,  does  it  afford 
the  plaintiff  any  ground  of  action.  His  claim  is  for  their  refusal  to 
furnish  to  him  certain  claimed  facilities  upon  the  roads.  That 
refusal  does  not  involve  any  acts  or  exercise  of  powers  ultra  vh 

Nor  does  the  fact  that  for  many  years  the  defendants  did  afford 
certain  facilities  to  separate  and  independent  carriers,  as  express 
companies,  confer  any  right  upon  them  or  impose  any  obligation, 
either  of  contract  or  duty,  upon  the  defendants  to  continue  the  same 
unchanged. 

Whatever  may  have  been  contemplated,    when  the  charters   for 
these  roads  were  granted,  as  to  the  parties  by  whom  and  the  a 
in  which  the  tracks  would  be  used  for  the  running  of  trains  or 


366  CARRIERS   OF    GOODS. 

riages  upon  them,  and  the  manner  in  which  tolls  would  be  received, 
it  cannot  be  doubted  that  since  the  St.  of  1845,  c.  191,  the  direction 
of  the  use  of  the  roads,  and  the  control  of  all  carriages  upon  them,  are 
exclusively  in  the  directors  of  the  corporations  owning  them.  It  is 
a  franchise  of  a  public  nature,  it  is  true;  and  the  directors  are  bound 
to  conduct  its  exercise  with  a  view  to  public  convenience.  But  they, 
and  not  the  individual  members  of  the  public,  are  intrusted  with 
the  discretion,  authority,  and  duty,  in  the  first  instance,  to  deter- 
mine what  the  public  convenience  requires.  They  are  subject,  in 
this  respect,  to  the  oversight  and  regulation  of  the  legislature.  It 
is  only  wheh  they  disregard  such  regulations  as  are  provided  by  law, 
or  required  by  a  reasonable  consideration  of  the  public  convenience 
and  purposes  of  their  charter,  that  individuals  are  entitled  to 
complain. 

The  plaintiff's  counsel  argues  that  it  is  unreasonable,  and  a  viola- 
tion of  the  legal  obligations  of  the  defendants,  to  make  any  discrimi- 
nation between  individuals ;  or  to  refuse  to  the  plaintiff  privileges 
which  they  grant  to  any  other  party;  and  therefore  that  the  arrange- 
ment of  the  defendants  with  another  express  company,  by  which  the 
plaintiff  was  excluded  from  similar  facilities,  was  a  violation  of  his 
legal  rights.  Such  does  not  appear  to  be  the  rule  of  the  common 
law  as  held  in  Massachusetts.  Fitchburg  Kailroad  v.  Gage,  12 
Gray,  393.  If  such  a  rule  has  been  established  by  the  St.  of  1867, 
c.  339,  the  plaintiff's  case  is  not  maintained  upon  that  ground;  1st, 
because  the  contracts  with  other  parties  complained  of  were  made 
before  the  statute,  to  wit,  in  December,  1865,  for  one  year  from 
January  1,  1866,  and  renewed  only  for  one  year  from  January  1, 
1867,  — and  although  the  report  finds  that  during  the  time  from 
January  1,  1866,  to  the  date  of  the  writ  November  15,  1871,  the 
plaintiff  "has  repeatedly  demanded  to  be  allowed  to  carry  on  his 
express  business  over  said  roads  as  formerly,"  it  does  not  appear 
that  any  such  demand  was  made  after  that  statute  took  effect  and 
before  the  arrangement  with  those  other  parties  expired.  2d,  because 
the  declaration  does  not  charge  any  such  wrong.  The  allegation  is 
that  the  parties  with  whom  the  supposed  contracts  were  made  "  were 
and  are  only  the  paid  agents  of  said  defendant  corporations,  and 
not  the  proprietors  of  said  express  privileges,  and  that  they  have 
continued  as  such,  and  such  only,  to  the  date  of  this  writ;  and  that 
the  profits  accruing  from  said  fraudulent  arrangement  are  the  prop- 
erty of  said  defendant  corporations."  The  whole  scope  and  drift  of 
the  declaration  is  to  charge  the  defendants  with  "conspiring  and 
illegally  contriving,"  by  means  of  pretended  contracts  with  other 
parties,  to  deprive  the  plaintiff  of  the  profits  of  his  express  business 
in  order  to  operate  the  same  to  their  own  use.  The  gravamen  of  his 
complaint  then  is  not  that  the  defendants  have  refused  to  give  him 
"equal  terms,  facilities,  and  accommodations"  with  other  persons 
and  companies,  but  simply  that  they  have  refused  to  give  him  such 


DUTY   TO   SEEVE   THE    PUBLIC.  367 

facilities  as  he  requires,  for  his  special  business  as  carrier,  < 
their  roads.     His  claim  must  stand  upon  the  right  to  demand  such 
facilities  independently  of  any  enjoyment  of  like  facilities  by  otl 
As  an  absolute  right  this  cannot  be  maintained. 

The  plaintiff  contends  that  the  "parcel  department"  which 
defendants  have  established,  to  the  exclusion  of  the  plaint  iff  and 
others  desiring  to  make  like  arrangements,  is  in  contravention  >■] 
the  equality  required  by  the  statute,  as  much  as  if  it  were  condm 
in  the  interest  of  a  third  party.  But  we  think  the  statute  was 
intended  to  apply  to  the  dealings  of  the  railroad  corporation  with 
the  public,  and  not  to  the  mode  in  which  it  should  arrange  and 
conduct  the  different  branches  of  its  business  as  carrier.  All  the 
plaintiff  can  demand  is  that,  in  each  of  those  branches,  he  shall  have 
equal  terms  with  other  persons  and  companies. 

The  report  finds  that  when  the  plaintiff  demanded  to  be  allowed 
to  carry  on  his  express  business  over  said  roads  as  formerly,  "  there 
was  sufficient  accommodation  in  the  defendants'  baggage  cars  for 
the  plaintiff  as  well  as  other  occupants  of  said  cars."  But  there  was 
no  refusal  to  carry  the  plaintiff  and  his  freight  upon  the  same  terms 
and  in  the  same  manner  as  the  defendants  performed  like  services 
for  other  persons  and  companies.  It  was  a  refusal  only  to  permit 
the  plaintiff  to  occupy  a  portion  of  the  space  in  the  cars  and  stations 
in  the  same  manner  and  for  the  same  purposes  as  the  defendants 
themselves  used  and  occupied  them,  paying  therefor,  and  for  the 
required  transportation,  some  special  rate  which  could  not  well  be 
adjusted  otherwise  than  by  special  agreement. 

The  plaintiff  fails  to  make  out  a  legal  cause  of  action,  and  the 

Judgment  must  be  for  the  defendants. J 


ATCHISON,  TOPEKA    &   SANTE    ¥fi    R.    CO.    v.   DENVER 
&  NEW   ORLEANS   R.    CO. 

110  U.  S.  607.     1884 

This  was  a  bill  in  equity  filed  by  the  Denver  &  New  Orleans  Bail- 
road  Co.,  a  Colorado  corporation  owning  and  operating  a  railroad  in 
that  State,  between  Denver  and  Pueblo,  a  distance  of  about  one 
hundred  and  twenty-five  miles,  against  the  Atchison,  Topeka 
&  Santa  Ee  Railroad  Company,  a  Kansas  corporation,  owning  and 
operating  a  railroad  in  that  State  from  the  Missouri  River,  at  Kansas 
City,  westerly  to  the  Colorado  State  line,  and  also  operating  from 
there,  under  a  lease,  a  road  in  Colorado  from  the  State  line  to 
Pueblo,  built  by  the  Pueblo  &  Arkansas  Valley  Railroad  Company, 

1  Ace:  Express  Cases,  117  U.  S.  1.     Contra:  New  England  Exp.  Co.  v.    Maine 
Cent.  R.  Co.,  57  Me.  188  ;  Mc.Duffee  v.  Portland,  &c.  11..  52  X.  H.  430. 


368  CAKRIEKS   OF   GOODS. 

—  a  Colorado  corporation.  The  two  roads  so  operated  by  the 
Atchison,  Topeka  &  Santa  Fe  Company  formed  a  continuous  line 
of  communication  from  Kansas  City  to  Pueblo,  about  six  hundred 
and  thirty-four  miles.  The  general  purpose  of  the  suit  was  to  com- 
pel the  Atchison,  Topeka  &  Santa  Fe  Company  to  unite  with  the 
Denver  &  New  Orleans  Company  in  forming  a  through  line  of  rail- 
road transportation  to  and  from  Denver  over  the  Denver  &  New 
Orleans  road  with  all  the  privileges  as  to  exchange  of  business,  divi- 
sion of  rates,  sale  of  tickets,  issue  of  bills  of  lading,  checking  of 
baggage  and  interchange  of  cars,  that  were  or  might  be  customary 
with  connecting  roads,  or  that  were  or  might  be  granted  to  the 
Denver  &  Rio  Grande  Railroad  Company,  another  Colorado  corpora- 
tion, also  owning  and  operating  a  road  parallel  to  that  of  the  Denver 
&  New  Orleans  Company  between  Denver  and  Pueblo,  or  to  any 
other  railroad  company  competing  with  the  Denver  &  New  Orleans 
for  Denver  business. 

[In  1879  the  Atchison,  Topeka  &  Santa  Fe  Company  made  an 
arrangement  with  the  Denver  &  Rio  Grande  Company  for  connec- 
tions between  Pueblo  and  Denver,  with  division  of  rates  as  to  joint 
business.] 

In  1882  the  Denver  &  New  Orleans  Company  completed  its  road 
between  Denver  and  Pueblo,  and  connected  its  track  with  that  of  the 
Atchison,  Topeka  &  Santa  Fe,  in  Pueblo,  twelve  or  fifteen  hundred 
feet  easterly  from  the  junction  of  the  Denver  &  Rio  Grande  and 
about  three-quarters  of  a  mile  from  the  union  depot,  at  which  the 
Atchison,  Topeka  &  Santa  Fe  and  the  Denver  &  Rio  Grande  inter- 
change their  business,  and  where  each  stopped  its  trains  regularly 
to  take  on  and  let  off  passengers  and  receive  and  deliver  freight. 
The  Denver  &  New  Orleans  Company  erected  at  its  junction  with 
the  Atchison,  Topeka  &  Santa  Fe  platforms  and  other  accommoda- 
tions for  the  interchange  of  business,  and  before  this  suit  was  begun 
the  general  superintendent  of  the  Denver  &  New  Orleans  Company 
made  a  request  in  writing  of  the  general  manager  of  the  Atchison, 
Topeka  &  Santa  Fe  [that  through  bills  of  lading  be  given  over  the 
two  roads,  and  that  the  Atchison,  Topeka  &  Santa  Fe  road  deliver 
cars  to  the  Denver  &  New  Orleans  road  at  the  junction  of  the  two 
roads;  also  that  tickets  be  placed  on  sale  over  the  two  roads,  and  a 
system  cf  through  checking  of  baggage  be  adopted  in  the  method 
usual  between  roads  having  a  joint  running  arrangement]. 

This  request  was  refused,  and  the  Atchison,  Topeka  &  Santa  Fe" 
Company  continued  its  through  business  with  the  Denver  &  Rio 
Grande  as  before,  but  declined  to  receive  or  deliver  freight  or  pas- 
sengers at  the  junction  of  the  Denver  &  New  Orleans  road,  or  to  give 
or  take  through  bills  of  lading,  or  to  sell  or  receive  through  tickets, 
or  to  check  baggage  over  that  line.  All  passengers  or  freight  coming 
from  or  destined  for  that  line  were  taken  or  delivered  at  the  regular 
depot  of   the  Atchison,   Topeka  &    Santa  Fe  Company  in  Pueblo, 


DUTY   TO    SERVE    THE    PUBLIC.  3G9 

and  the  prices  charged  were  according  to  the  regular  rates  to  and 
from  that  point,  which  were  more  than  the  Atchison,  Topeka  &  Santa 
Fe  received  on  a  division  of  through  rates  to  and  from  Denver  under 
its  arrangement  with  the  Denver  &  Rio  Grande  Company. 

Mr.  Chief  Justice  Waite.         ....... 

At  common  law,  a  carrier  is  not  bound  to  carry  except  on  his 
own  line,  and  we  think  it  quite  clear  that  if  he  contracts  to  go  be- 
yond, he  may,  in  the  absence  of  statutory  regulations  to  the  contrary, 
determine  for  himself  what  agencies  he  will  employ.  His  contract 
is  equivalent  to  an  extension  of  his  line  for  the  purpose  of  the  con- 
tract, and  if  he  holds  himself  out  as  a  carrier  beyond  the  line,  so  that 
he  may  be  required  to  carry  in  that  way  for  all  alike,  he  may,  never- 
theless, confine  himself  in  carrying  to  the  particular  route  he  chooses 
to  use.  He  puts  himself  in  no  worse  position,  by  extending  his  route 
with  the  help  of  others,  than  he  would  occupy  if  the  means  of  trans- 
portation employed  were  all  his  own.  He  certainly  may  select  his 
own  agencies  and  his  own  associates  for  doing  his  own  work. 

The  Atchison,  Topeka  &  Santa  Fe  Company,  as  the  lessee  of 
the  Pueblo  &  Arkansas  Valley  Railroad,  has  the  statutory  right  to 
establish  its  own  stations  and  to  regulate  the  time  and  manner  in 
which  it  will  carry  persons  and  property  and  the  price  to  be  paid 
therefor.  As  to  all  these  matters,  it  is  undoubtedly  subject  to  the 
power  of  legislative  regulation,  but  in  the  absence  of  regulation  it 
owes  only  such  duties  to  the  public,  or  to  individuals,  associations, 
or  corporations,  as  the  common  law,  or  some  custom  having  the 
force  of  law,  has  established  for  the  government  of  those  in  its  con- 
dition. As  has  already  been  shown,  the  Constitution  of  Colorado 
gave  to  every  railroad  company  in  the  State  the  right  to  a  mechani- 
cal union  of  its  road  with  that  of  any  other  company  in  the  State, 
but  no  more.  The  legislature  has  not  seen  fit  to  extend  this  right, 
as  it  undoubtedly  may,  and  consequently  the  Denver  &  New  Orleans 
Company  comes  to  the  Atchison,  Topeka  &  Santa  Fe  Company  just 
as  any  other  customer  does,  and  with  no  more  rights.  It  has  estab- 
lished its  junction  and  provided  itself  with  the  means  of  transacting 
its  business  at  that  place,  but,  as  yet,  it  has  no  legislative  authority 
to  compel  the  other  company  to  adopt  that  station  or  to  establish  an 
agency  to  do  business  there.  So  far  as  statutory  regulations  are 
concerned,  if  it  wishes  to  use  the  Atchison,  Topeka  &  Santa  Fe 
road  for  business,  it  must  go  to  the  place  where  that  company  takes 
on  and  lets  off  passengers  or  property  for  others.  It  has  as  a  rail- 
road company  no  statutory  or  constitutional  privileges  in  this  partic- 
ular over  other  persons,  associations,  or  corporations.  It  saw  fit  to 
establish  its  junction  at  a  place  away  from  the  station  which  the 
Atchison,  Topeka  &  Santa  Fe  Company  had,  in  the  exercise  of  its 
legal  discretion,  located  for  its  own  convenience  and  that  of  the 
public.  It  does  not  now  ask  to  enter  that  station  with  its  track  in- 
to interchange  business  at  that  place,  but  to  compel  the  Atchison. 


370  CARRIERS    OF    GOODS. 

Topeka  &  Santa  Fe  Company  to  stop  at  its  station  and  transact  a 
connecting  business  there.  No  statute  requires  that  connected  roads 
shall  adopt  joint  stations,  or  that  one  railroad  company  shall  stop  at 
or  make  use  of  the  station  of  another.  Each  company  in  the  State 
has  a  legal  right  to  locate  its  own  stations,  and,  so  far  as  statutory 
regulations  are  concerned,  it  is  not  required  to  use  any  other. 

A  railroad  company  is  prohibited,  both  by  the  common  law  and 
by  the  Constitution  of  Colorado,  from  discriminating  unreasonably 
in  favor  of  or  against  another  company  seeking  to  do  business  on  its 
road;  but  that  does  not  necessarily  imply  that  it  must  stop  at  the 
junction  of  one  and  interchange  business  there,  because  it  has  estab- 
lished joint  depot  accommodations,  and  provided  facilities  for  doing 
a  connecting  business  with  another  company  at  another  place.  A 
station  may  be  established  for  the  special  accommodation  of  a  par- 
ticular customer;  but  we  have  never  heard  it  claimed  that  every 
other  customer  could,  by  a  suit  in  equity,  in  the  absence  of  a  statu- 
tory or  contract  right,  compel  the  company  to  establish  a  like  station 
for  his  special  accommodation  at  some  other  place.  Such  matters 
are,  and  always  have  been,  proper  subjects  for  legislative  considera- 
tion, unless  prevented  by  some  charter  contract;  but,  as  a  general 
rule,  remedies  for  injustice  of  that  kind  can  only  be  obtained  from 
the  legislature.  A  court  of  chancery  is  not  any  more  than  is  a  court 
of  law,  clothed  with  legislative  power.  It  may  enforce,  in  its  own 
appropriate  way,  the  specific  performance  of  an  existing  legal  obli- 
gation arising  out  of  contract,  law,  or  usage,  but  it  cannot  create  the 
obligation. 

In  the  present  case,  the  Atchison,  Topeka  &  Santa  Fe  and  the 
Denver  &  Rio  Grande  Companies  formed  their  business  connection 
and  established  their  junction  or  joint  station  long  before  the  Denver 
&  New  Orleans  road  was  built.  The  Denver  &  New  Orleans  Com- 
pany saw  fit  to  make  its  junction  with  the  Atchison,  Topeka  & 
Santa  Fe  Company  at  a  different  place.  Under  these  circumstances, 
to  hold  that,  if  the  Atchison,  Topeka  &  Santa  Fe  continued  to  stop 
at  its  old  station,  after  the  Denver  &  New  Orleans  was  built,  a  re- 
fusal to  stop  at  the  junction  of  the  Denver  &  New  Orleans  was  an 
unreasonable  discrimination  as  to  facilities  in  favor  of  the  Denver 
&  Rio  Grande  Company,  and  against  the  Denver  &  New  Orleans, 
would  be  in  effect  to  declare  that  every  railroad  company  which 
forces  a  connection  of  its  road  with  that  of  another  company  has  a 
right,  under  the  Constitution  or  at  the  common  law,  to  require  the 
company  with  which  it  connects  to  do  a  connecting  business  at  the 
junction,  if  it  does  a  similar  business  with  any  other  company  under 
any  other  circumstances.  Such,  we  think,  is  not  the  law.  It  may 
be  made  so  by  the  legislative  department  of  the  government,  but  it 
does  not  follow,  as  a  necessary  consequence,  from  the  constitutional 
right  of  a  mechanical  union  of  tracks,  or  the  constitutional  prohibi- 
tion aerainst  undue  or  unreasonable  discriminations  in  facilities. 


DUTY   TO   SERVE    THE    PUBLIC.  37J 

This  necessarily  disposes  of  the  question  of  a  continuous  busim 
or  a  through  line  for  passengers  or  freight,  including  through  t  icl 
through  bills  of  lading,  through  checking  of  baggage,  and  the  like. 
Such  a  business  does  not  necessarily  follow  from  a  connection  of 
tracks.  The  connection  may  enable  the  companies  to  do  such  a 
business  conveniently  when  it  is  established,  but  it  does  not  of 
itself  establish  the  business.  The  legislature  cannot  take  away  the 
right  to  a  physical  union  of  two  roads,  but  whether  a  connecting 
business  shall  be  done  over  them  after  the  union  is  made  depends  on 
legislative  regulation,  or  contract  obligation.  An  interchange  of 
cars,  or  the  hauling  by  one  company  of  the  cars  of  the  other,  implies 
a  stop  at  the  junction  to  make  the  exchange  or  to  take  the  cars.  If 
there  need  be  no  stop,  there  need  be  no  exchange  or  taking  on  of  cars. 

The  only  remaining  questions  are  as  to  the  obligation  of  the 
Atchison,  Topeka  &  Santa  Fe  Company  to  carry  for  the  Denver 
&  New  Orleans  when  passengers  go  to  or  freight  is  delivered  at  the 
regular  stations,  and  the  prices  to  be  charged.  As  to  the  obligation 
to  carry,  there  is  no  dispute,  and  we  do  not  understand  it  to  be 
claimed  that  carriage  has  ever  been  refused  when  applied  for  at  the 
proper  place.  The  controversy,  and  the  only  controversy,  is  about 
the  place  and  the  price. 

That  the  price  must  be  reasonable  is  conceded,  and  it  is  no  doubt 
true  that  in  determining  what  is  reasonable  the  prices  charged  for 
business  coming  from  or  going  to  other  roads  connecting  at  Pueblo 
may  be  taken  into  consideration.  But  the  relation  of  the  Denver  & 
New  Orleans  Company  to  the  Atchison,  Topeka  &  Santa  Fe  is  that 
of  a  Pueblo  customer,  and  it  does  not  necessarily  follow  that  the 
price  which  the  Atchison,  Topeka  &  Santa  Fe  gets  for  transporta- 
tion to  and  from  Pueblo,  on  a  division  of  through  rates  among  the 
component  companies  of  a  through  line  to  Denver,  must  settle  the 
Pueblo  local  rates.  It  may  be  that  the  local  rates  to  and  from 
Pueblo  are  too  high,  and  that  they  ought  to  be  reduced,  but  that  is 
an  entirely  different  question  from  a  division  of  through  rates. 
There  is  no  complaint  of  a  discrimination  against  the  Denver  & 
New  Orleans  Company  in  respect  to  the  regular  Pueblo  rates; 
neither  is  there  anything  except  the  through  rates  to  show  that  the 
local  rates  are  too  high.  The  bill  does  not  seek  to  reduce  the  local 
rates,  but  only  to  get  this  company  put  into  the  same  position  as 
the  Denver  &  Rio  Grande  on  a  division  of  through  rates.  This 
cannot  be  done  until  it  is  shown  that  the  relative  situations  of  the 
two  companies  with  the  Atchison,  Topeka  &  Santa  Fe,  both  as  to 
the  kind  of  service  and  as  to  the  conditions  under  which  it  is  to  be 
performed,  are  substantially  the  same,  so  that  what  is  reasonal  lc 
for  one  must  necessarily  be  reasonable  for  the  other.  When  a  busi- 
ness connection  shall  be  established  between  the  Denver  &  New 
Orleans  Company  and  the  Atchison,  Topeka  &  Santa  Fe  at  their 
junction,    and  a  continuous   line   formed,    different   questions    may 


372  CARRIERS    OF    GOODS. 

arise;  but  so  long  as  the  situation  of  the  parties  continues  as  it  is 
now,  we  cannot  say  that,  as  a  matter  of  law,  the  prices  charged  by 
the  Atchison,  Topeka  &  Santa  Ye,  for  the  transportation  of  persons 
and  property  coming  from  or  going  to  the  Denver  &  New  Orleans, 
must  necessarily  be  the  same  as  are  fixed  for  the  continuous  line 
over  the  Denver  &  Kio  Grande. 

All  the  American  cases  to  which  our  attention  has  been  called  by 
counsel  relate  'either  to  what  amounts  to  undue  discrimination  be- 
tween the  customers  of  a  railroad  company,  or  to  the  power  of  a 
court  of  chancery  to  interfere,  if  there  is  such  a  discrimination. 
None  of  them  hold  that,  in  the  absence  of  statutory  direction,  or  a 
specific  contract,  a  company  having  the  power  to  locate  its  own 
stopping-places  can  be  required  by  a  court  of  equity  to  stop  at 
another  railroad  junction  and  interchange  business,  or  that  it  must, 
under  all  circumstances,  give  one  connecting  road  the  same  facilities 
and  the  same  rates  that  it  does  to  another  with  which  it  has  entered 
into  special  contract  relations  for  a  continuous  through  line  and 
arranged  facilities  accordingly.  The  cases  are  all  instructive  in 
their  analogies,  but  their  facts  are  different  from  those  we  have  now 
to  consider. 

We  have  not  referred  specially  to  the  tripartite  agreement  or  its 
provisions,  because,  in  our  opinion,  it  has  nothing  to  do  with  this 
case  as  it  is  now  presented.  The  question  here  is  whether  the 
Denver  &  New  Orleans  Company  would  have  the  right  to  the  relief 
it  asks  if  there  were  no  such  contract,  not  whether  the  contract,  if 
it  exists,  will  be  a  bar  to  such  a  right.  The  real  question  in  the 
case,  as  it  now  comes  before  us,  is  whether  the  relief  required  is 
legislative  in  its  character  or  judicial.  We  think  it  is  legislative, 
and  that  upon  the  existing  facts  a  court  of  chancery  can  afford  no 
remedy. 

The  decree  of  the  Circuit  Court  is  reversed,  and  the  cause  remanded 
with  direction  to  dismiss  the  bill  without  prejudice. 


STATE,  ex  rel.  v.  CINCINNATI,  etc.  E.  CO. 

47  Ohio  St.  130.     1890. 

Bradbury,  J.  These  actions  are  brought  under  the  fourth  clause 
of  sec.  6761,  Revised  Statutes,  which  authorize  an  action  of  quo 
warranto  to  be  brought  against  a  corporation  "when  it  has  misused 
a  franchise,  privilege,  or  right  conferred  upon  it  by  law,  or  when  it 
claims  or  holds  by  contract  or  otherwise,  or  has  exercised  a  fran- 
chise, privilege,  or  right  in  contravention  of  law." 


DUTY    TO    SERVE    THE    PUBLIC.  373 

The  petitions  charge,  among  other  things,  that  the  defendants 
misused  their  corporate  powers  and  franchises  by  discriminating  in 
their  rates  of  freight  in  favor  of  certain  refiners  of  petroleum  oil 
connected  with  the  Standard  Oil  Company,  by  charging  other 
shippers  of  like  products  unreasonable  rates,  by  arbitrarily  and 
suddenly  changing  the  same,  and  finally,  by  confederating  with  the 
favored  shippers  to  create  and  foster  a  monopoly  in  refined  oil,  to 
the  injury  of  other  refiners  and  the  public;  and  further,  that  the 
defendants  claimed  and  exercised,  in  contravention  of  law,  the  right 
to  charge,  for  shipping  oil  in  tank  cars,  a  lower  rate  of  freight  per 
hundred  pounds  than  they  charged  for  shipping  the  same  in  barrels, 
in  car-load  lots.  The  defendant,  by  answer,  among  other  matters, 
denied  charging  any  shippers  unreasonable  rates  of  freight,  or  that 
they  arbitrarily  or  suddenly  changed  such  rates,  and  denied  any 
confederacy  with  any  one  to  establish  a  monopoly. 

The  actions  were  referred  to  a  referee  to  take  the  evidence  and  to 
report  to  this  court  his  findings  of  fact  and  conclusions  of  law  there- 
from; all  which  has  been  done,  and  the  cases  are  before  us  upon 
this  report. 

To  the  report  of  the  referee  exceptions  were  filed  by  all  parties. 
The  defendants,  however,  do  not  now  insist  upon  their  exceptions 
to  the  finding  of  the  referee  in  so  far  as  it  relates  to  the  facts; 
indeed,  it  is  difficult  to  conceive  any  grounds  for  their  doing  so,  for 
these  findings  are  mainly  based  upon  the  testimony  of  the  officers 
and  agents  of  the  railroad  companies. 

•  ••*•••••••• 

That  the  Cincinnati,  Washington  &  Baltimore  Railway  Company 
did  discriminate  in  its  rates  for  freight  on  petroleum  oil  in  favor  of 
the  Camden  Consolidated  Oil  Company,  and  that  the  Cincinnati, 
New  Orleans  &  Texas  Pacific  Railway  Company  did  the  same  in  favor 
of  the  Chess-Carly  Company,  is  shown  by  the  finding  of  the  referee, 
which  is  clearly  sustained  by  the  evidence.  That  these  discriminat- 
ing rates  were  in  some  instances  strikingly  excessive,  tended  to  foster 
a  monopoly,  tended  to  injure  the  competitors  of  the  favored  shippers 
and  were  in  many  instances  prohibitory,  actually  excluding  these 
competitors  from  extensive  and  valuable  markets  for  their  oil,  giving 
to  the  favored  shippers  absolute  control  thereof,  is  established  beyond 
any  serious  controversy.  The  justification  interposed  is  that  this 
was  not  done  pursuant  to  any  confederacy  with  the  favored  shipper 
or  with  any  purpose  to  inflict  injury  on  their  competitors,  but  in 
order  that  the  railroad  companies  might  secure  freight  that  would 
otherwise  have  been  lost  to  them.  This  we  do  not  think  sufficient. 
We  are  not  unmindful  of  the  difficulties  that  stand  in  the  way  of 
prescribing  a  line  of  duty  to  a  railway  company,  nor  do  we  under- 
take to  say  they  may  not  pursue  their  legitimate  objects,  and  shape 
their  policy  to  secure  benefits  to  themselves,  though  it  may  press 
severely  upon  the   interests  of  others;  but   we  do  hold  that  they 


374  CARRIERS    OF   GOODS. 

cannot  be  permitted  to  foster  or  create  a  monopoly,  by  giving  to  a 
favored  shipper  a  discriminating  rate  of  freight.  As  common  car- 
riers, their  duty  is  to  carry,  indifferently,  for  all  who  may  apply, 
and  in  the  order  in  which  the  application  is  made  and  upon  the  same 
terms;  and  the  assumption  of  a  right  to  make  discriminations  in 
rates  for  freight,  such  as  was  claimed  and  exercised  by  the  defend- 
ants in  this  case,  on  the  ground  that  it  thereby  secured  freight  that 
it  would  otherwise  lose,  is  a  misuse  of  the  rights  and  privileges  con- 
ferred upon  it  by  law.  A  full  and  complete  discussion  of  the  prin- 
ciples and  a  thorough  collection  of  the  authorities,  bearing  upon  the 
duties  of  railroad  companies  toward  their  customers,  is  to  be  found 
in  the  opinion  of  Atherton,  J.,  in  the  case  of  Scofield  v.  Railway, 
43  Ohio  St.  571,  to  which  nothing  need  be  now  added. 

It  appears  that  of  the  two  methods  of  shipping  oil,  that  by  the  bar- 
rel in  car-load  lots  and  that  in  tank  cars,  the  first  only  was  available 
to  George  Rice  and  the  other  refiners  of  petroleum  oil  at  Marietta, 
Ohio,  as  they  owned  no  tank  cars,  nor  did  the  defendants  own  or 
undertake  to  provide  any ;  but  that  both  methods  were  open  to  the 
Camden  Consolidated  Oil  Company  and  the  Chess-Carly  Company, 
by  reason  of  their  ownership  of  tank  cars,  and  that  the  rate  per  bar- 
rel in  tank  cars  was  very  much  lower  than  in  barrel  packages  in  box 
cars;  that,   in  fact,  the  Cincinnati,  Washington  &  Baltimore  Rail- 
way Company,  after  allowing  the  Camden  Consolidated  Oil  Company 
a  rebate,  and  allowing  the  Baltimore  &  Ohio  Railway  Company  for 
switching  cars,  received  from  the  Camden  Consolidated  Oil  Company 
only  about  one  half  the  open  rates  it  charged  the  Marietta  refiners, 
and  that  both  railroad  companies  claimed  the  right  to  make  different 
rates,  based  upon  the  different  methods  of  shipping  oil,  and  the  fact 
of  the  ownership  by  shippers  of  the  tank  cars  used  by  them.     It  was 
the  duty  of  the  defendants  to  furnish  suitable  vehicles  for  transport- 
ing freight  offered  to  them  for  that  purpose,  and  to  offer  equal  terms 
to  all  shippers.     A  railroad  is  an  improved  highway;  the  public  are 
equally  entitled  to  its  use;  it  must  provide  equal  accommodation  for 
all  upon  the  same  terms.     The  fact  that  one  shipper  may  be  pro- 
vided with  vehicles  of  his  own  entitles  him  to  no  advantage  over  his 
competitor   not  so  provided.     The  true   rule   is  announced  by  the 
Interstate  Commerce  Commission,  in  the  report  of  the  case  of  George 
Rice  v.  The  Louisville  &  Nashville  Railroad  Company  et  al.     "  The 
fact  that  the  owner  supplies  the  rolling  stock  when  his  oil  is  shipped 
in  tanks,  in  our  opinion,  is  entitled  to  little  weight  when  rates  are 
under  consideration.     It  is  properly  the  business  of  railroad  com- 
panies to  supply  to  their  customers  suitable  vehicles  of  transporta- 
tion (Railroad  Co.  v.  Pratt,  22  Wall.  123),  and  then  offer  their  use 
to  everybody  impartially."     Page  50  of  the  report  of  the  case.     No 
doubt  a  shipper  who  owns  cars  may  be  paid  a  reasonable  compensa- 
tion for  the  use,  so  that  the  compensation  is  not  made  a  cover  for 
discriminating  rates,  or  other  advantages  to  such  owner  as  a  shipper. 


DUTY    TO   SERVE    THE    PUBLIC.  375 

Not  is  there  any  valid  objection  to  such  owner  using  them  exclu- 
sively, as  long  as  the  carrier  provides  equal  accommodations  to  its 
other  customers.  It  may  be  claimed  that  if  a  railroad  comp 
permit  all  shippers  indifferently,  and  upon  equal  terms,  to  provide 
cars  suitable  for  their  business,  and  to  use  them  exclusively,  no 
discrimination  is  made.  This  may  be  theoretically  true,  but  it  13 
not  so  in  its  application  to  the  actual  state  of  the  business  of  the 
country;  for  a  very  large  portion  of  the  customers  of  a  railroad 
have  not  a  volume  of  business  large  enough  to  warrant  equipping 
themselves  with  cars,  and  might  be  put  at  a  ruinous  disadvantage  in 
the  attempt  to  compete  with  more  extensive  establishments.  Aside 
from  this,  however,  a  shipper  is  not  bound  to  provide  a  car;  the 
duty  of  providing  suitable  facilities  for  its  customers  rests  upon  the 
railroad  company,  and  if,  instead  of  providing  sufficient  and  suit- 
able cars  itself,  this  is  done  by  certain  of  its  customers  even  for 
their  own  convenience,  yet  the  cars  thus  provided  are  to  be  regarded 
as  part  of  the  equipments  of  the  road.  It  being  the  duty  of  a  rail- 
road company  to  transport  freight  for  all  persons  indifferently,  and 
in  the  order  in  which  its  transportation  is  applied  for,  it  cannot  be 
permitted  to  suffer  freight  cars  to  be  placed  upon  its  track  by  any 
customer  for  his  private  use,  except  upon  the  condition  that,  if  it 
does  not  provide  other  cars  sufficient  to  transport  the  freight  of  other 
customers  in  the  order  application  is  made,  they  may  be  used  for 
that  purpose.  Were  this  not  so,  a  mode  of  discrimination,  fatal  to 
all  successful  competition  by  small  establishments  and  operators  with 
large  and  more  opulent  ones,  could  be  successfully  adopted  and 
practised  at  the  will  of  the  railroad  company  and  the  favored 
shipper. 

The  advantages,  if  any,  to  the  carrier,  presented  by  the  tank- 
car  method  of  transporting  oil,  over  that  by  barrels  in  box  cars  in 
car-load  lots,  are  not  sufficient  to  justify  any  substantial  difference 
in  the  rate  of  freight  for  oil  transported  in  that  way;  but  if  there 
were  any  such  advantages,  as  it  is  the  duty  of  the  carrier  to  furnish 
proper  vehicles  for  transporting  it,  if  it  failed  in  this  duty  it  could 
not  in  justice  avail  itself  of  its  own  neglect  as  a  ground  of  discrimi- 
nation. It  must  either  provide  tank  cars  for  all  its  customers 
alike,  or  give  such  rates  of  freight  in  barrel  packages,  by  the  car- 
load, as  will  place  its  customers  using  that  method  on  an  equal 
footing  with  its  customers  adopting  the  other  method. 

Judgment  ousting  defendants  from  the  rig  Jit  to  make  or  charge  a 
rate  of  freight  per  hundred  pounds  for  transporting  oil  in  iron  tank 
cars,  substantially  lower  than  for  transporting  it  in  barrels^  in  car- 
load lots. 


376  CARRIERS   OF   GOODS. 

b.    For  a  reasonable  compensation. 
BASTARD  v.    BASTARD. 
King's  Bench.    2  Shower,  81.     1679. 

Case  against  the  defendant  as  a  common  carrier,  for  a  box  deliv- 
ered to  him  to  be  carried  to  B.  and  lost  by  negligence. 

Williams  moved  in  arrest  of  judgment,  for  that  there  was  no  par- 
ticular sum  mentioned  to  be  paid  or  promised  for  hire,  but  only^ro 
mercede  rationabili  ;  resolved  well  enough,  and  judgment  given  pro 
plaintiff;  for  perhaps  there  was  no  particular  agreement,  and  then 
the  carrier  might  have  a  quantum  meruit  for  his  hire,  and  he  is 
therefore  as  chargeable  for  the  loss  of  the  goods  in  the  one  case 
as  the  other. 


RAGAN  &   BUFFET   v.    AIKEN. 
9  Lea  (Tenn.),  609.     18S2. 

Cooper,  J.      .........         . 

The  third  ground  of  demurrer  is  that  the  facts  stated  in  the  bill 
do  not  show  a  case  of  improper  discrimination  within  the  meaning 
of  the  franchises  under  which  the  defendant  is  operating  his  road. 
The  facts  are  that  the  defendant,  to  induce  merchants  in  Lee 
County,  Virginia,  and  Hancock  County,  Tennessee,  to  ship  over 
his  road,  instead  of  taking  a  different  route,  has  entered  into  a  con- 
tract with  them  not  to  charge  exceeding  15  cents  per  hundred 
pounds  on  their  goods.  And  the  question  is  whether  the  defendant 
can  make  such  a  contract,  under  the  circumstances  stated. 

The  English  authorities  hold  that  at  common  law  the  common 
carrier  is  not  bound  to  carry  at  equal  rates  for  all  customers  in  like 
condition.  The  authorities  are  collected  in  McDuffee  v.  Portland  & 
Rochester  Railroad,  52  N.  H.  430,  and  in  3  Am.  &  Eng.  R.  Cas.  602. 
In  this  country,  the  courts  have  generally  held  otherwise,  and  that 
statutes  prohibiting  discrimination  are  merely  declaratory  of  the 
common  law.  Sinking  Fund  Cases,  99  U.  S.  17;  Messenger  v. 
Pennsylvania  Railroad  Company,  36  N.  J.  L.  407,  531.  Discrimi- 
nation in  rates  of  freight,  if  fair  and  reasonable,  and  founded  on 
grounds  consistent  with  the  public  interest,  are  allowable.  Hersh 
v.  Northern,  etc.  Railroad  Company,  74  Pa.  St.  181;  Chicago,  etc. 
Railroad  Company  v.  People,  67  111.  11;  Fitch  burg  Railroad  Com- 
pany v.  Gage,  12  Gray,  393.     The  important  point  to  every  freighter 


DUTY   TO    SERVE    THE    PUBLIC. 


:;:: 


is  that  the  charge  shall  be  reasonable,  and  a  right  of  action  will  not 
exist  in  favor  of  any  one  unless  it  be  shown  that  unreasonable  ine- 
quality had  been  made  to  his  detriment.  A  reasonable  price  paid 
by  such  a  party  is  not  made  unreasonable  by  a  less  price  paid  by 
others.  Or,  as  said  by  Crompton,  J. ,  to  the  plaintiff,  upon  the 
trial  of  such  a  suit :  "  The  charging  another  party  too  little  is  not 
charging  you  too  much."  Garten  v.  B.  &  E.  Railroad  Company,  1 
B.  &  S.  112,  151,  165;  McDuffee  v.  Portland  &  Rochester  Railroad, 
52  1ST.  H.  430.  In  determining  whether  a  company  has  given  undue 
preference  to  a  particular  person,  the  court  may  look  to  the  interests 
of  the  company:  Ransoine  v.  Eastern  Counties  Railway,  1  C.  .  B. 
n.  s.  437;  1  id.  135. 

In  other  words,  if  the  charge  on  the  goods  of  the  party  complain- 
ing is  reasonable,  and  such  as  the  company  would  be  required  to 
adhere  to  as  to  all  persons  in  like  condition,  it  may,  nevertheless, 
lower  the  charge  to  another  person  if  it  be  to  the  advantage  of  the 
company,  not  inconsistent  with  the  public  interest,  and  based  on  a 
sufficient  reason.  It  is  obvious  that  the  intention  of  the  defendant, 
in  this  instance,  was  not  to  discriminate  against  the  complainants  in 
favor  of  any  person  of  the  same  place,  and  in  the  same  condition. 
His  object  was  to  get  business  for  his  road  from  persons  at  a  dis- 
tance from  its  terminus,  which  otherwise  would  reach  their  destina- 
tion by  a  different  route.  Under  these  circumstances,  we  cannot  see 
that  the  contracts  complained  of  are  against  public  policy,  or  that 
the  complainants  have  been  damaged,  if  the  charges  on  their  goods 
were  reasonable.  The  bill  contains  no  allegation  that  the  charges 
made  against,  and  paid  by,  the  complainants  were  unreasonable. 
Without  such  an  averment  there  has  begn  no  damage.  The  third 
ground  of  demurrer  was,   therefore,    well  taken.1 


CHICAGO,   BURLINGTON  &  QUINCY  R.  CO.  v.  IOWA. 

94  U.  S.  155.     1876. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Pis 
trict  of  Iowa. 

Mr.  Chief  Justice  Waite.  Railroad  companies  are  carriers  for 
hire.  They  are  incorporated  as  such,  and  given  extraordinary 
powers,  in  order  that  they  may  the  better  serve  the  public  in  that 
capacity.  They  are,  therefore,  engaged  in  a  public  employment 
affecting  the  public  interest,  and.  under  the  decision  in  Munn  v. 
Illinois,  94  U.  S.  113  [289],  subject  to  legislative  control  as  to  their 
rates  of  fare  and  freight,  unless  protected  by  their  charters. 

3  Ace:  Fitch  burg  R.  Co.  v.  Gage,  12  Gray,  393;  Ex  parte  Benson,  18  S.  C.  38  : 
Johnson  v.  Pensacola,  etc.  R.  Co.,  16  Fla.  623. 


378  CARRIERS    OF    GOODS. 

The  Burlington  and  Missouri  River  Railroad  Company,  the  bene- 
fit of  whose  charter  the  Chicago,  Burlington  and  Quincy  Railroad 
Company  now  claims,  was  organized  under  the  general  corporation 
law  of  Iowa,  with  power  to  contract,  in  reference  to  its  business, 
the  same  as  private  individuals,  and  to  establish  by-laws  and  make 
all  rules  and  regulations  deemed  expedient  in  relation  to  its  affairs, 
but  being  subject,  nevertheless,  at  all  times  to  such  rules  and  regu- 
lations as  the  general  assembly  of  Iowa  might  from  time  to  time 
enact  and  provide.  This  is,  in  substance,  its  charter,  and  to  that 
extent  it  is  protected  as  by  a  contract;  for  it  is  now  too  late  to  con- 
tend that  the  charter  of  a  corporation  is  not  a  contract  within  the 
meaning  of  that  clause  in  the  Constitution  of  the  United  States 
which  prohibits  a  State  from  passing  any  law  impairing  the  obliga- 
tion of  a  contract.  Whatever  is  granted  is  secured  subject  only  to 
the  limitations  and  reservations  in  the  charter  or  in  the  laws  or 
constitutions  which  govern  it. 

This  company,  in  the  transactions  of  its  business,  has  the  same 
rights,  and  is  subject  to  the  same  control,  as  private  individuals 
under  the  same  circumstances.  It  must  carry  when  called  upon  to 
do  so,  and  can  charge  only  a  reasonable  sum  for  the  carriage.  In 
the  absence  of  any  legislative  regulation  upon  the  subject,  the  courts 
must  decide  for  it,  as  they  do  for  private  persons,  when  contro- 
versies arise,  what  is  reasonable.  But  when  the  legislature  steps  in 
and  prescribes  a  maximum  of  charge,  it  operates  upon  this  corpora- 
tion the  same  as  it  does  upon  individuals  engaged  in  a  similar  busi- 
ness. It  was  within  the  power  of  the  company  to  call  upon  the 
legislature  to  fix  permanently  this  limit,  arid  make  it  a  part  of  the 
charter;  and,  if  it  was  refused,  to  abstain  from  building  the  road 
and  establishing  the  contemplated  business.  If  that  had  been  done, 
the  charter  might  have  presented  a  contract  against  future  legisla- 
tive interference.  But  it  was  not;  and  the  company  invested  its 
capital,  relying  upon  the  good  faith  of  the  people  and  the  wisdom 
and  impartiality  of  legislators  for  protection  against  wrong  under 
the  form  of  legislative  regulation. 

It  is  a  matter  of  no  importance  that  the  power  of  regulation  now 
under  consideration  was  not  exercised  for  more  than  twenty  years 
after  this  company  was  organized.  A  power  of  government  which 
actually  exists  is  not  lost  by  non-user.  A  good  government  never 
puts  forth  its  extraordinary  powers,  except  under  circumstances 
which  require  it.  That  government  is  the  best  which,  while  per- 
forming all  its  duties,  interferes  the  least  with  the  lawful  pursuits 
of  its  people. 

In  1691,  during  the  third  year  of  the  reign  of  William  and  Mary, 
Parliament  provided  for  the  regulation  of  the  rates  of  charges  by 
common  carriers.  This  statute  remained  in  force,  with  some  amend- 
ment, until  1827,  when  it  was  repealed,  and  it  has  never  been 
re-enacted.     No   one   supposes   that  the   power  to  restore  its  pro- 


DUTY    TO    SERVE    THE    PUBLIC.  379 

visions  lias  been  lost.  A  change  of  circumstances  seemed  to  rendei 
such  a  regulation  no  longer  necessary,  and  it  was  abandoned  foi 
time.  The  power  was  not  surrendered.  That  remains  for  future 
exercise,  when  required.  So  here,  the  power  of  regulation  existed 
from  the  beginning,  but  it  was  not  exercised  until  in  the  judgment 
of  the  body  politic  the  condition  of  things  was  such  as  to  render  it 
necessary  for  the  common  good. 

Neither  does  it  affect  the  case  that  before  the  power  was  exercised 
the  company  had  pledged  its  income  as  security  for  the  payment  of 
debts-incurred,  and  had  leased  its  road  to  a  tenant  that  relied  upon 
the  earnings  for  the  means  of  paying  the  agreed  rent.  The  com- 
pany could  not  grant  or  pledge  more  than  it  had  to  give.  After 
the  pledge  and  after  the  lease  the  property  remained  within  the 
jurisdiction  of  the  State,  and  continued  subject  to  the  same  govern- 
mental powers  that  existed  before. 

The  objection  that  the  statute  complained  of  is  void  because  it 
amounts  to  a  regulation  of  commerce  among  the  States,  has  been 
sufficiently  considered  in  the  case  of  Munn  v.  Illinois.  This  road, 
like  the  warehouse  in  that  case,  is  situated  within  the  limits  of  a 
single  State.  Its  business  is  carried  on  there,  and  its  regulation  is 
a  matter  of  domestic  concern.  It  is  employed  in  State  as  well  as  in 
interstate  commerce,  and,  until  Congress  acts,  the  State  must  be 
permitted  to  adopt  such  rules  and  regulations  as  may  be  necessary 
for  the  promotion  of  the  general  welfare  of  the  people  within  its 
own  jurisdiction,  even  though  in  so  doing  those  without  may  be 
indirectly  affected. 

It  remains  only  to  consider  whether  the  statute  is  in  conflict  with 
sec.  4,  art.  1,  of  the  Constitution  of  Iowa,  which  provides  that  "all 
laws  of  a  general  nature  shall  have  a  uniform  operation,"  and  that 
"the  general  assembly  shall  not  grant  to  any  citizen,  or  class  of 
citizens,  privileges  or  immunities  which,  upon  the  same  terms,  shall 
not  equally  belong  to  all  citizens." 

The  statute  divides  the  railroads  of  the  State  into  classes,  accord- 
ing to  business,  and  establishes  a  maximum  of  rates  for  each  of  the 
classes.  It  operates  uniformly  on  each  class,  and  this  is  all  the 
Constitution  requires.  The  Supreme  Court  of  the  State,  in  the  case 
of  McAunich  v.  M.  &  M.  Railroad  Co.,  20  Iowa,  348,  in  speaking  of 
legislation  as  a  class,  said,  "These  laws  are  general  and  uniform, 
not  because  they  operate  upon  every  person  in  the  State,  for  they  do 
not,  but  because  every  person  who  is  brought  within  the  relation 
and  circumstances  provided  for  is  affected  by  law.  They  are  general 
and  uniform  in  their  operation  upon  all  persons  in  the  like  situa- 
tion, and  the  fact  of  their  being  general  and  uniform  is  not  affected 
by  the  number  of  persons  within  the  scope  of  their  operation." 
This  act  does  not  grant  to  any  railroad  company  privileges  or 
immunities  which,  upon  the  same  terms,  do  not  equally  belong  to 
every  other  railroad  company.       Whenever  a   company  comes  into 


380  CARRIERS    OF    GOODS. 

any  class,  it  lias  all  the  "privileges  and  immunities  "  that  have 
been  granted  by  the  statute  to  any  other  company  in  that  class. 

It  is  very  clear  that  a  uniform  rate  of  charges  for  all  railroad  com- 
panies in  the  State  might  operate  unjustly  upon  some.  It  was 
proper,  therefore,  to  provide  in  some  way  for  an  adaptation  of  the 
rates  to  the  circumstances  of  the  different  roads;  and  the  general 
assembly,  in  the  exercise  of  its  legislative  discretion,  has  seen  fit  to 
do  this  by  a  system  of  classification.  Whether  this  was  the  best 
that  could  have  been  done  is  not  for  us  to  decide.  Our  province  is 
only  to  determine  whether  it  could  be  done  at  all,  and  under  any 
circumstances.  If  it  could,  the  legislature  must  decide  for  itself, 
subject  to  no  control  from  us,  whether  the  common  good  requires 
that  it  should  be  done.  Decree  affirmed. 

Mr.  Justice  Field  and  Mr.  Justice  Strong  dissented. 


REAGAN  v.    FARMERS'   LOAN  &  TRUST   CO. 
154  U.  S.  362.     1894. 

Mr.  Justice  Brewer.      ........ 

It  appears  from  the  bill  that,  in  pursuance  of  the  powers  given 
to  it  by  this  act,  the  State  commission  [Reagan  et  al.~]  has  made 
a  body  of  rates  for  fares  and  freights.  This  body  of  rates,  as  a 
whole,  is  challenged  by  the  plaintiff  [defendant  in  error,  trustee 
under  a  railroad  trust  deed]  as  unreasonable,  unjust,  and  working  a 
destruction  of  its  rights  of  property.  The  defendant  denies  the 
power  of  the  court  to  entertain  an  inquiry  into  that  matter,  insist- 
ing that  the  fixing  of  rates  for  carriage  by  a  public  carrier  is  a 
matter  wholly  within  the  power  of  the  legislative  department  of 
the  government  and  beyond  examination  by  the  courts. 

It  is  doubtless  true,  as  a  general  proposition,  that  the  formation 
of  a  tariff  of  charges  for  the  transportation  by  a  common  carrier  of 
persons  or  property  is  a  legislative  or  administrative  rather  than 
a  judicial  function.  Yet  it  has  always  been  recognized  that,  if  a 
carrier  attempted  to  charge  a  shipper  an  unreasonable  sum,  the 
courts  had  jurisdiction  to  inquire  into  that  matter  and  to  award  to 
the  shipper  any  amount  exacted  from  him  in  excess  of  a  reasonable 
rate;  and  also  in  a  reverse  case  to  render  judgment  in  favor  of  the 
carrier  for  the  amount  found  to  be  a  reasonable  charge.  The  prov- 
ince of  the  courts  is  not  changed,  nor  the  limit  of  judicial  inquiry 
altered,  because  the  legislature  instead  of  the  carrier  prescribed  the 
rates.  The  courts  are  not  authorized  to  revise  or  change  the  body 
of  rates  imposed  by  a  legislature  or  commission ;  they  do  not  deter- 
mine whether  one  rate  is  preferable  to  another,  or  what  under  all 
circumstances  would  be  fair  and  reasonable  as  between  the  carriers 


DUTY   TO    SERVE    THE    PUBLIC.  381 

and  the  shippers;  they  do  not  engage  in  any  mere  administrative 
work;  but  still  there  can  be.  no  doubt  of  their  power  and  duty  to 
inquire  whether  a  body  of  rates  prescribed  by  a  legislature  or  a  coin- 
mission  is  unjust  and  unreasonable,  and  such  as  to  work  a  practical 
destruction  to  rights  of  property,  and  if  found  so  to  be,  to  restrain 
its  operation.  In  Chicago,  Burlington  &  Quincy  Railroad  v.  Iowa, 
94  U.  S.  155  [377]  and  Peik  v.  Chicago  &  Northwestern  Railway, 
94  U.  S.  164,  the  question  of  legislative  control  over  railroads  was 
presented,  and  it  was  held  that  the  fixing  of  rates  was  not  a  ma 
within  the  absolute  discretion  of  the  carriers,  but  was  subject  to 
legislative  control.  As  stated  by  Justice  Miller,  in  Wabash,  etc. 
Railway  v.  Illinois,  IIS  U.  S.  557,  509,  in  respect  to  those  cases: 

"The  great  question  to  be  decided,  and  which  was  decided,  and 
which  was  argued  in  all  those  cases,  was  the  right  of  the  State, 
within  which  a  railroad  company  did  business,  to  regulate  or  limit 
the  amount  of  any  of  these  traffic  charges." 

There  was  in  those  cases  no  decision  as  to  the  extent  of  control, 
but  only  as  to  the  right  of  control.  This  question  came  again  before 
this  court  in  Railroad  Commission  Cases,  116  U.  S.  307,  331,  and 
while  the  right  of  control  was  re-affirmed,  a  limitation  on  that  right 
was  plainly  intimated  in  the  following  words  of  the  Chief  Justice: 

"From  what  had  thus  been  said,  it  is  not  to  be  inferred  that  this 
power  of  limitation  or  regulation  is  itself  without  limit.  This 
power  to  regulate  is  not  a  power  to  destroy,  and  limitation  is  not 
the  equivalent  of  confiscation.  Under  pretence  of  regulating  fares 
and  freights  the  State  cannot  require  a  railroad  corporation  to  carry 
persons  or  property  without  reward;  neither  can  it  do  that  which  in 
law  amounts  to  a  taking  of  private  property  for  public  use  without 
just  compensation,  or  without  due  process  of  law." 

This  language  was  quoted  in  the  subsequent  case  of  Dow  v. 
Beidelman,  125  U.  S.  680,  689.  Again,  in  Chicago  &  St.  Paul 
Railway  v.  Minnesota,  134  U.  S.  418,  458,  it  was  said  by  Mr. 
Justice  Blatchford,  speaking  for  the  majority  of  the  court:  — 

"  The  question  of  the  reasonableness  of  a  rate  of  charge  for  trans- 
portation by  a  railroad  company,  involving  as  it  does  the  element  of 
reasonableness,  both  as  regards  the  company  and  as  regards  the 
public,  is  eminently  a  question  for  judicial  investigation,  requiring 
the  process  of  law  for  its  determination." 

And  in  Chicago  &  Grand  Trunk  Railway  v.  Wellman,  143  U.  S. 
339,  344,  is  this  declaration  of  the  law :  — 

"  The  legislature  has  power  to  fix  rates,  and  the  extent  of  judicial 
interference  is  protection  against  unreasonable  rates." 

Budd  v.  New  York,  143  U.  S.  517,  announces  nothing  to  the 
contrary.  The  question  there  was  not  whether  the  rates  were 
reasonable,  but  whether  the  business,  that  of  elevating  grain,  was 
within  legislative  control  as  to  the  matter  of  rates.  It  was  said  in 
the  opinion:  "In  the  cases  before  us,  the  records  do  not  show  that 


382  CARRIERS    OF    GOODS. 

the  charges  fixed  by  the  statute  are  unreasonable."  Hence  there 
was  no  occasion  for  saying  anything  as  to  the  power  or  duty  of  the 
courts  in  case  the  rates  as  established  had  been  found  to  be  unreas- 
onable. It  was  enough  that  upon  examination  it  appeared  that 
there  was  no  evidence  upon  which  it  could  be  adjudged  that  the 
rates  were  in  fact  open  to  objection  on  that  ground. 

These  cases  all  support  the  proposition  that  while  it  is  not  the 
province  of  the  courts  to  enter  upon  the  merely  administrative  duty 
of  framing  a  tariff  of  rates  for  carriage,  it  is  within  the  scope  of 
judicial    power  and  a  part  of  judicial   duty   to   restrain    anything 
which,  in  the  form  of  a  regulation  of  rates,  operates  to  deny  to  the 
owners  of  property  invested  in  the  business  of  transportation  that 
equal  protection  which  is  the  constitutional  right  of  all  owners  of 
other  property.     There  is  nothing  new  or  strange  in  this.     It  has 
always  been  a  part  of  the  judicial  function  to  determine  whether  the 
act  of   one  party  (whether   that   party  be  a  single   individual,  an 
organized  body,  or  the   public  as  a  whole)   operates  to  divest   the 
other  party  of  any  rights  of  person  or  property.     In  every  constitu- 
tion is   the   guarantee    against  the  taking  of  private  property  for 
public  purposes  without  just  compensation.     The  equal  protection 
of  the  laws  which,  by  the  Fourteenth  Amendment,  no    State  can 
deny  to  the  individual,  forbids  legislation,  in  whatever  form  it  may 
be  enacted,  by   which  the  property  of  one  individual   is,  without 
compensation,  wrested  from  him  for  the  benefit  of  another,  or  of 
the  public.     This,  as  has  been  often  observed,  is  a  government  of 
law,  and  not  a  government  of  men,  and  it  must  never  be  forgotten 
that   under   such  a  government,  with  its  constitutional  limitations 
and  guarantees,  the  forms  of  law  and  the  machinery  of  government, 
with  all  their  reach  and  power,  must  in  their  actual  workings  stop 
on  the  hither  side  of  the  unnecessary  and  uncompensated  taking  or 
destruction    of  any  private  property,   legally  acquired  and  legally 
held.     It  was,  therefore,  within  the  competency  of  the  Circuit  Court 
of  the  United  States  for  the   Western   District  of  Texas,  at  the 
instance  of  the  plaintiff,  a  citizen  of  another  State,  to  enter  upon  an 
inquiry  as  to  the  reasonableness  and  justice  of  the  rates  prescribed 
by  the  railroad  commission.     Indeed,  it  was  in  so  doing  only  exer- 
cising a  power  expressly  named  in  the  act  creating  the  commission. 


carrier's  liability.  383 

4.  CARRIER'S  LIABILITY. 

a.  Act  of  God. 
PROPRIETORS   OF  THE   TRENT   NAVIGATION  v.  WOOD. 

King's  Bench.     3  Esp.  127.     1785. 

This  was  an  action  of  assumpsit. 

The  declaration  stated  that  the  plaintiffs,  as  proprietors  of  the 
Trent  Navigation,  undertook  to  carry  the  defendant's  goods  from 
Hnll  to  Gainsborough;  that  in  the  river  Humber,  the  vessel  on 
board  which  the  defendant's  goods  were,  sunk,  by  driving  against 
an  anchor  in  the  river;  and  the  goods  were,  in  consequence  of  the 
accident,  considerably  damaged.  That  the  plaintiffs  repaired  the 
damage  the  goods  had  sustained,  and  sent  them  home  to  the  defend- 
ant; and  the  breach  was,  that  the  defendant  refused  to  pay  the 
money  the  plaintiffs  had  expended  in  the  recovery  of  the  goods. 
There  was  also  a  count  in  the  declaration  for  money  had  and 
received,  which  was  for  freight.  At  the  trial  the  plaintiffs  were 
nonsuited, 

A  rule  having  been  obtained,  to  show  cause  why  the  nonsuit 
should  not  be  set  aside,   it  came  on  to  be  argued  on  this. 

The  counsel  for  the  defendant  being  desired  to  begin,  —  Cowper 
contended,  that  the  defendant  was  not  liable  to  pay  this  money; 
there  was  no  pretence  to  say  that  the  accident  happened  from  the 
act  of  God;  for  it  was  expressly  stated  and  proved  that  the  acci- 
dent was  occasioned  by  the  negligence  of  the  persons  on  board  a 
barge  in  the  river,  in  not  having  his  buoy  out,  to  mark  the  place 
where  his  anchor  lay.  A  great  deal  of  evidence  Avas  adduced  at  the 
trial  to  prove  this;  but,  as  between  the  carriers  and  the  owners  of 
the  goods,  the  misconduct  of  a  third  person  is  immaterial,  since  a 
remedy  lies  over  against  the  party  so  offending.  The  plaintiffs 
would  have  been  liable  had  the  goods  been  totally  lost;  and  there- 
fore a  fortiori  shall  answer  this  damage  themselves. 

Bower,  on  the  same  side.  The  question  is.  Whether  the  plaintiffs 
as  carriers  are  liable  for  the  damage  done  to  the  goods  in  question  ? 
The  law  in  all  cases  throws  the  burden,  when  there  is  a  loss,  upon 
a  common  carrier,  even  if  the  goods  are  taken  by  robbery,  where  it 
is  impossible  for  him  to  save  them ;  and  the  reason  is,  to  prevent 
any  collusion  between  him  and  the  thief.  He  is  certainly  liable  in 
all  cases,  except  the  two,  of  accidents  happening  by  the  act  of  God, 
or  of  the  king's  enemies.  Hera  is  no  pretence  for  either.  A 
damage  taking  place  by  a  natural  accident  that  could  not  be  fore- 
seen, may  be  called  the  act  of  God;  but  this  arose  from  the  iniscou- 


384  CARRIERS    OF    GOODS. 

duct   of   a   third   person,    and   cannot  therefore   come   within    the 
meaning  of  that  expression. 

Bearcroft,  for  the  plaintiffs.  This  is  a  question  that  concerns  all 
common  carriers;  they  are  the  bailees  of  goods;  and  as  they  get 
a  profit  by  this  undertaking,  they  are  also  liable  to  answer  for 
losses,  if  the  smallest  degree  of  negligence  is  proved;  but  in  the 
present  case  there  was  no  possibility  of  seeing  or  knowing  of  the 
anchor  that  did  the  mischief,  and  therefore  the  accident  happened 
from  an  inevitable  necessity;  which,  though  it  may  not  come  up  to 
the  precise  idea  of  the  act  of  God,  is  yet  such  a  necessity  as  affords 
a  justification  to  the  plaintiffs. 

Plomer,  on  the  same  side.  There  is  no  neglect  proved  on  the  part 
of  the  plaintiffs ;  and  as  to  the  remedy  over  against  a  third  person, 
it  must  first  be  determined  who  are  immediately  answerable  for  the 
loss,  before  it  can  be  known  who  is  entitled  to  this  remedy.  It  was 
in  evidence  at  the  trial,  that  there  is  considerable  danger  in  the 
voyage  from  Hull  to  Gainsborough,  and  that  it  is  therefore  usual 
for  the  owners  of  the  goods  to  insure  them;  and  as  there  was  no 
insurance  in  this  case,  but  only  the  price  of  the  freight,  which  has 
been  paid  into  court,  I  contend  that  it  was  only  a  special  acceptance 
on  the  part  of  the  plaintiffs,  and  therefore  that  they  are  not  liable 
for  the  loss  occasioned  by  the  accident  which  has  happened.  It  is 
like  a  voyage  to  the  East  Indies;  and  as  there  is  a  great  risk  in 
all  sea-voyages,  it  would  be  very  unreasonable  to  make  a  party 
liable  generally  to  answer  the  loss  where  he  has  not  stipulated  for 
the  purpose.  The  evidence  at  the  trial  of  an  usage  to  insure  goods 
for  this  voyage  varies  the  case  very  much  from  that  of  a  common 
carrier,  where  there  is  no  insurance;  therefore,  as  it  appears  that 
there  was  a  special  acceptance  in  this  case,  the  plaintiffs  are  not 
liable  to  answer  the  damages  done  to  the  goods. 

Lord  Mansfield  asked,  if  there  was  any  case  which  made  dis- 
tinction between  a  land  and  a  water  carrier.  And,  none  being  men- 
tioned, Cowper,  in  reply,  put  a  case  of  an  East  Indian  in  the  Downs 
running  down  another  vessel ;  and  said  that  the  owners  of  the  vessel 
run  down  would  certainly  have  an  action  against  the  other  for  the 
damage,  and  would  also  be  liable  as  common  carriers  to  their 
employers.  That  this  accident  happened  in  the  river  Humber, 
clearly  infra  corpus  comitatus  ;  and  therefore  was  not  a  sea-voyage. 
A  custom  to  insure  was  certainly  proved;  but  because  it  is  usual,  a 
man  is  not  obliged  to  do  it;  and  a  carrier  will  be  equally  answerable. 
If  a  man  pleases,  he  may  insure  his  goods  by  the  Chester  wagon ; 
but  if  he  does,  still  the  wagoner  must  be  liable  in  case  of  a  loss. 

Lord  Mansfield.  This  is  certainly  a  sea-voyage.  It  is  a  general 
question,  and  no  case  has  been  cited  exactly  in  point;  but  it  is  clear 
that  the  carrier  is  liable  in  all  cases,  except  for  accidents  happen  - 
ing  by  the  act  of  God  or  by  the  king's  enemies.  The  act  of  God 
is  a  natural  necessity,  and  inevitably  such,  as  winds,   storms,  etc. 


CARRIER  S    LIABILITY.  385 

The  case  of  robbery  is  certainly  very  strong,  but  not  a  natural  neces- 
sity; and  in  this  case  there  is  an  injury  by  a  private  man,  within 
the  reason  of  the  instance  of  robbery;  yet  I  think  the  carriers  ought 
to  be  liable.  There  is  some  sort  of  negligence  here;  for  as  the  buoy 
could  not  be  seen ,  there  should  have  been,  on  that  account,  a  greater 
degree  of  caution  used. 

Willes,  Justice,  of  the  same  opinion. 

Ashhurst,  Justice.  The  general  rule  is,  that  the  carrier  is  liable 
in  every  instance,  except  for  accidents  happening  by  the  act  of  God 
or  the  king's  enemies;  but  another  rule  is  now  attempted  to  be 
set  up ;  which  is,  that  the  carrier  ought  not  to  be  liable,  where  no 
negligence  is  imputable  to  him;  but  no  case  has  been  cited  to  prove 
this  doctrine;  and  I  think  that  good  policy  and  convenience  require 
the  rule  to  be  adhered  to  which  has  hitherto  prevailed.  It  will 
naturally  lead  to  make  carriers  more  careful  in  general.  If  this 
sort  of  negligence  were  to  excuse  the  carrier,  when  he  finds  that  an 
accident  has  happened  to  goods  from  the  misconduct  of  a  third  person, 
he  would  give  himself  no  farther  trouble  about  the  recovery  of  them; 
nor  do  I  think  that  in  this  case  the  carrier  is  entirely  free  from 
every  imputation  of  negligence.  His  not  seeing  the  buoy  ought  to 
have  put  him  upon  inquiring  more  minutely  about  the  anchor. 

Buller,  Justice.  This  case  is  very  different  from  those  relied 
upon  by  the  plaintiffs ;  two  grounds  have  been  made  for  the  plain- 
tiffs: first,  That  upon  general  principles  of  law  they  are  not  liable; 
and  secondly,  That  they  are  not  liable,  because  this  was  a  special 
acceptance,  which  excluded  the  risks  of  the  sea;  but  for  this  there 
is  no  color  at  all.  It  was  proved,  at  the  trial,  that  it  was  usual  to 
insure ;  but  that  does  not  show  that  the  carrier  is  not  liable  where 
there  is  no  insurance :  the  merchant  is  not  bound  to  insure,  nor  does 
that  vary  the  obligation.  Neither  is  it  to  be  presumed,  that  because 
the  price  of  insurance  is  low,  this  risk  is  excluded  when  not  insured; 
the  carrier  knows  the  degree  of  danger,  and  proportions  his  premium 
accordingly. 

As  to  the  general  principle,  there  is  no  distinction  between  a  land 
and  a  water  carrier.  In  the  case  of  a  robbery  the  carrier  is  subject 
to  force  which  he  cannot  resist;  yet  he  shall  be  liable.  In  this 
case,  I  think  there  was  a  degree  of  negligence  in  point  of  fact;  but 
the  negligence  in  point  of  law  was  sufficient. 

Hide  discharged. 


FORWARD  v.   PITTARD. 

King's  Bench.     1  Term  R.  27.     1785. 

This  was  an  action  on  the  case  against  the  defendant  as  a  common 
carrier,  for  not  safely  carrying  and  delivering  the  plaintiff's  goods. 


386  CARRIERS    OF   GOODS. 

This  action  was  tried  at  the  last  summer  assizes  at  Dorchester, 
before  Mr.  Baron  Perryn,  when  the  jury  found  a  verdict  for  the 
plaintiff,  subject  to  the  opinion  of  the  court  on  the  following  case : 

"The  defendant  was  a  common  carrier  from  London  to  Shafts- 
bury.     That  on  Thursday  the  14th  of  October,   1784,  the  plaintiff 
delivered  to  him  on  Weyhill  twelve  pockets  of  hops  to  be  carried  by 
him  to  Andover,  and  to  be  by  him  forwarded  to  Shaftsbury  by  his 
public  road  wagon,  which  travels  from  London  through  Andover  to 
Shaftsbury.     That,  by  the  course  of  travelling,  such  wagon  was  not 
to  leave  Andover  till  the  Saturday  evening  following.     That  in  the 
night  of  the  following  day  after  the  delivery  of  the  hops,  a  fire 
broke  out  in  a  booth  at  the  distance  of  one  hundred  yards  from  the 
booth  in  which  the  defendant  had  deposited  the  hops,  which  burnt 
for  some  time  with  unextinguishable  violence,  and  during  that  time 
communicated  itself  to  the  said  booth  in  which  the  defendant  had 
deposited  the  hops,  and  entirely  consumed  them  without  any  actual 
neditrence  in  the  defendant.     That  the  fire  was  not  occasioned  by 
lightning." 

N.  Bond,  for  the  plaintiff.  The  question  is,  whether  a  carrier  is 
liable  for  the  loss  of  goods  occasioned  by  fire,  without  any  negli- 
gence in  him  or  his  servants.  The  general  proposition  is,  that  the 
carrier  is  liable  in  all  cases,  except  the  loss  be  occasioned  by  the 
act  of  God  or  the  king's  enemies.  Lord  Raymond,  909;  1  Wils. 
281.  And  this  doctrine  has  lately  been  recognized  by  this  Court,  in 
the  case  of  the  Company  of  the  Trent  Navigation  v.  Wood.  East. 
25  Geo.  3  B.  R.  The  only  doubt  is  on  the  construction  of  the  words 
"  the  act  of  God."  It  is  an  effect  immediately  produced  without  the 
interposition  of  any  human  cause.  In  Amies  and  Stephens,  1  Stra. 
128,  these  words  were  held  to  include  the  case  of  a  ship  being  lost 
by  tempest.  In  the  books,  under  the  head  of  "waste,"  there  is  an 
analogous  distinction  to  be  found :  if  a  house  fall  down  by  tempest, 
or  be  burned  by  lightning,  it  is  no  waste ;  but  burning  by  negligence 
or  mischance  is  waste.     Co.  Lit.  53,  a,  b. 

Before  the  6th  of  Anne,  6  Ann.  c.  31;  10  Ann.  c.  14,  an  action  lay 
against  any  person  in  whose  house  a  fire  accidentally  began :  this 
shows  that  an  accidental  fire  was  not  in  law  considered  as  the  act  of 
God ;  but  the  person  was  punishable  for  negligence.  Suppose  a  fire 
happens  in  a  house  where  there  are  different  lodgers,  each  of  whose 
lodgings  is  considered  as  a  separate  house:  if  the  fire  be  communi- 
cated from  one  lodging  to  another,  and  the  Court  say  the  first  fire 
was  the  act  of  man,  at  what  time  will  it  be  said  that  it  ceases  to  be 
the  act  of  man  and  commences  to  be  the  act  of  God  ?  If  it  were  not 
the  act  of  man  in  the  first  house,  it  is  impossible  to  draw  the  line. 
In  the  case  of  the  Company  of  the  Trent  Navigation  and  Wood, 
Lord  Mansfield  said,'  "By  the  act  of  God  is  meant  a  natural,  not 
merely  an  inevitable,  accident." 

If  it  be  contended  for  the  defendant  that  it  is  here  stated  that 


carrier's  liability.  387 

there  was  no  actual  negligence,  that  will  not  serve  him;  for  this 
action  was  not  founded  in  negligence.  Lord  Holt  says,  there  are 
several  species  of  bailments,  and  different  degrees  of  liability 
annexed  to  each;  and  a  carrier  is  that  kind  of  bailee  who  is  answer- 
able though  there  be  no  actual  negligence. 

Borough,  for  the  defendant,  observed  that  the  point  in  this  case 
was  not  before  the  Court  in  any  of  the  cases  cited.  The  general 
question  here  is,  whether  a  carrier  is  compellable  to  make  satisfac- 
tion for  goods  delivered  to  him  to  carry,  and  destroyed  by  mere 
accident,  in  a  case  where  negligence  is  so  far  from  being  imputed 
to  him  that  it  is  expressly  negatived  ?  This  action  of  assumpsit 
must  be  considered  as  an  action  founded  on  what  is  called  the  custom 
of  the  realm  relating  to  carriers.  And  from  a  review  of  all  the 
cases  on  this  subject  it  manifestly  appears  that  a  carrier  is  only 
liable  for  damage  and  loss  occasioned  by  the  acts  or  negligence  of 
himself  and  servants,  that  is,  for  such  damage  and  loss  only  as 
human  care  or  foresight  can  prevent;  and  that  there  is  no  implied 
contract  between  him  and  his  employers  to  indemnify  them  against 
unavoidable  accidents.  The  law  with  respect  to  land  carriers  and 
water  carriers  is  the  same.  Rich  v.  Kneeland,  Cro.  Jac.  330;  Hob. 
17,  5  Burr.  2827. 

In  Vid.  27.  The  declaration,  in  an  action  against  a  waterman 
for  negligently  keeping  his  goods,  states  the  custom  relative  to 
carriers  thus,  "  absque  substractione,  amissione,  seu  spoliatione,  porta  re 
tenentur,  ita  quod  pro  defectu  dictorum  communium  portatorum  seu 
servientium  suortim,  hujusmodi  bona  et  catalla  eis  sic  ut  prefertur 
deliberata,  non  sint  perdita,  amissa,  seu  spoliatay  It  then  states  the 
breach,  that  the  defendant  had  not  delivered  them,  and  "pro  defectu 
bona)  custodioe  ipsius  defendentis  et  servientium  suorum  perdita  et 
amissa  fuerunt"  In  Brownl.  Red.  12,  the  breach  in  a  declaration 
against  a  carrier  is,  "  defendens  tarn  negligenter  et  improvide  custodivit 
etcarriavit,  &c."  In  Clift.  38,  39,  Mod.  Intr.  91,  92,  and  Heme,  76, 
•the  entries  are  to  the  same  effect.  In  Rich  and  Kneeland,  Hob.  17, 
the  custom  is  stated  in  a  similar  way;  and  in  the  Exchequer 
Chamber  it  was  resolved,  "that  though  it  was  laid  as  a  custom  of 
the  realm,  yet  indeed  it  is  common  law."  On  considering  these 
cases,  it  is  not  true  that  "the  act  of  God  and  of  the  king's  enemies  " 
is  an  exception  from  the  law.  For  an  exception  is  always  of  some- 
thing comprehended  within  the  rule,  and  therefore  excepted  out  of 
it;  but  the  act  of  God  and  of  the  king's  enemies  is  not  within  the 
law  as  laid  down  in  the  books  cited. 

All  the  authorities  cited  by  the  counsel  for  the  plaintiff  are  founded 
on  the  dictum  in  Coggs  v.  Bernard,  2  Lord  Raymond,  909,  [4]  where 
this  doctrine  was  first  laid  down;  but  Lord  Holt  did  not  mean  to 
state  the  proposition  in  the  sense  in  which  it  has  been  contended  he 
did  state  it.  He  did  not  intend  to  say,  that  eases  falling  within  the 
reasoning   of  what  are   vulgarly  called  "acts  of  God"  should  not 


388  CARRIERS   OF    GOODS. 

also  be  good  defences  for  a  carrier.  After  saying  (Lord  Raymond, 
918),  "the  law  charges  the  persons,  thus  intrusted  to  carry  goods, 
against  all  events  but  the  acts  of  God  and  of  the  enemies  of  the 
king,"  he  proceeds  thus,  "for  though  the  force  be  never  so  great,  as 
if  an  irresistible  multitude  of  people  should  rob  him,  nevertheless 
he  is  chargeable.  And  this  is  a  politic  establishment,  contrived  by 
the  policy  of  the  law  for  the  safety  of  all  persons,  the  necessity  of 
whose  affairs  oblige  them  to  trust  these  sorts  of  persons,  that  they 
may  be  safe  in  their  ways  of  dealing;  for  else  these  carriers  might 
have  an  opportunity  of  undoing  all  persons  who  had  any  dealings 
with  them,  by  combining  with  thieves,  etc. ,  and  yet  doing  it  in 
such  a  clandestine  manner  as  would  not  be  possible  to  be  discov- 
ered." As  Lord  Holt  therefore  states  the  responsibility  of  carriers 
in  case  of  robbery  to  take  its  origin  from  a  ground  of  policy,  he 
could  not  mean  to  say  that  a  carrier  was  also  liable  in  cases  of 
accidents,  where  neither   combination   or   negligence  can   possibly 

exist. 

It  appears  from  the  Doctor  and  Student  (Dial.  2,  c.  38,  p.  270) 
that,  at  the  time  that  book  was  written,  the  carrier  was  held  liable 
for  robberies  which  diligence  and  foresight  might  prevent.  And 
what  is  there  said  agrees  precisely  with  the  custom,  and  does  not 
bear  hard  on  the  carrier.  If  he  will  travel  by  night,  and  is  robbed, 
he  has  no  remedy  against  the  hundred;  for  then  he  is  not  protected 
by  the  statute  of  Winton,  and  he  ought  to  be  answerable  to  the 
employer.  If  he  travel  by  day  and  is  robbed,  he  has  a  remedy. 
Now  the  carrier  may  not  perhaps  be  worth  suing;  and  the  employer 
may  bring  the  action  against  the  hundred  in  his  own  name ;  which 
action  he  would  be  deprived  of,  if  the  carrier  travelled  by  night. 

There  is  not  a  single  authority  in  all  the  old  books  which  says 
that  a  carrier  is  responsible  for  mere  accidents.  He  only  engages 
against  substraction,  spoil,  and  loss,  occasioned  by  the  neglect  of 
himself  or  his  servants.  These  words  plainly  point  at  acts  to  be 
done,  and  omissions  of  care  and  diligence.  But  in  the  present  case 
there  is  no  act  done;  and  there  cannot  be  said  to  be  any  omission 
of  care  and  diligence,  since  they  could  not  have  prevented  the 
calamity. 

Lord  Holt,  in  Coggs  v.  Bernard,  seems  to  have  traced,  with  great 
attention,  the  different  species  of  bailments.  He  cites  many  pas- 
sages from  Bracton,  who  has  nearly  copied  them  from  Justinian. 
So  that  it  is  probable  that  the  custom  relating  to  carriers  took  its 
origin  from  the  civil  law  as  to  bailments.  Now  it  is  observable  that 
in  no  one  case  of  bailment  is  the  bailee  answerable  for  an  accident; 
he  is  only  liable  for  want  of  diligence.  The  only  difference  in  this 
respect  between  the  civil  and  the  English  law  is,  that  the  former 
(Justin,  lib.  3,  15,  s.  2,  3,  4,  tit.  35,  s.  5)  distinguishes  between 
the  different  degrees  of  diligence  required  in  the  different  species 
of  bailment;  which  the  latter  does  not. 


CARRIERS    LIABILITY.  389 

In  all  the  cases  to  be  found  in  our  books  may  be  traced  the  true 
ground  of  liability,  negligence.  If  the  law  were  not  as  is  now  con- 
tended  for,  the  question  of  negligence  could  never  have  arisen;  and 
the  case  of  robbery  could  not  have  borne  any  argument;  whereas 
the  case  of  Mors  v.  Slue,  1  Vent.  190,  238,  [402]  came  on  repeatedly 
before  the  Court,  and  created  very  considerable  doubts. 

In  the  case  of  Dale  v.  Hall,  1  AVils.  281  [773],  and  the  Proprietors 
of  the  Trent  Navigation  v.  Wood,  3  Esp.  127  [383],  there  were  c 
facts  of  negligence.     In  the  first,  the  rats  gnawed  a  hole  in  the  hoy, 
which  undoubtedly  might  have  been  prevented.     And  in  the  other, 
each  of  the  judges,  in  giving  his  opinion,  said  there  was  negligence. 

In  the  Year  Books,  22  Ass.  41,  there  is  a  case  of  an  action  against 
a  waterman  for  overloading  his  boat  so  that  the  plaintiff's  horse  was 
drowned.  This  case  is  recognized  in  Williams  v.  Lloyd,  S.  \V. 
Jones,  180,  where  it  is  said  "it  was  there  agreed  that  if  he  had  not 
surcharged  the  boat,  although  the  horse  was  drowned,  no  action  lies, 
notwithstanding  the  assumpsit;  but  if  he  surcharged  the  boat,  other- 
wise; for  there  is  default  and  negligence  in  the  party."  The 
Court  in  22  Ass.  41,  said,  "it  seems  that  you  trespassed  when  you 
surcharged  the  boat  by  which  the  horse  perished."  The  same  case 
is  to  be  found  in  1  Ho.  Abr.  10,  pi.  18,  Bro.  Tit.  Action  sur  le  Case 
78.  And  it  is  also  recognized  in  Williams  v.  Hide  and  Ux.  Palm. 
548. 

In  Winch.  26.  To  an  action  against  a  carrier,  there  is  a  special 
plea  that  the  inn  in  which  the  goods  were  deposited  was  burned  by 
fire,  and  that  the  plaintiff's  goods  were  at  the  same  time  destroyed, 
without  the  default  or  neglect  of  the  defendant  or  his  servants.  To 
this  the  plaintiff  demurred,  not  generally  but  specially,  "that  the 
plea  amounted  to  the  general  issue." 

In  all  actions  founded  in  negligence,  the  negligence  is  alleged  and 
tried,  as  a  fact;  as  in  actions  against  a  farrier,  smith,  coachman, 
etc.  It  is  the  constant  course  in  such  actions  to  leave  the  question 
of  negligence  to  the  jury.  It  appears  in  Dalston  v.  Janson,  5  Mod. 
90,  that  the  defendant  formerly  used  to  plead  particularly  to  the 
neglect.  In  43  Edw.  3,  33;  Clerk's  Assist.  99;  Mod.  Intr.  95,  and 
Brown.  Red.  101,  which  were  actions  founded  in  negligence,  the 
negligence  is  traversed.  Now  a  traverse  can  be  only  of  matter  of 
fact.     And  here  negligence  is  expressly  negatived  by  the  case. 

However,  if  the  Court  should  be  of  the  opinion  that  the  carrier 
is  answerable  for  every  loss,  unless  occasioned  by  the  act  of  God 
or  the  king's  enemies,  he  then  contended  that,  as  the  act  of  God 
was  a  good  ground  of  defence,  this  accident,  though  not  within  the 
words,  was  within  the  reason,  of  that  ground.  It  cannot  be  said 
that  misfortunes  occasioned  by  lightning,  rain,  wind,  etc.,  are  the 
immediate  acts  of  the  Almighty ;  they  are  permitted,  but  not  directed 
by  him.  The  reason  why  these  accidents  are  not  held  to  charge 
a  carrier,  is,  that  they  are  not  under  the  control  of  the  contracting 


390  CARRIERS    OF   GOODS. 

party,  and  therefore  cannot  affect  the  contract,  inasmuch  as  he 
engages  only  against  those  events  which  by  possibility  he  may  pre- 
vent. Lord  Bacon,  in  his  Law  Tracts,  commenting  on  this  maxim, 
Reg.  5,  necessitas  inducit  privilegium  quoad  jura  privata,  says,  "  the 
law  charges  no  man  with  default  where  the  act  is  compulsory  and 
not  voluntary,  and  where  there  is  not  a  consent  and  election;  there- 
fore, if  either  there  be  an  impossibility  for  a  man  to  do  otherwise, 
or  so  great  a  perturbation  of  the  judgment  and  reason  as  in  pre- 
sumption of  law  man's  nature  cannot  overcome,  such  necessity 
carrieth  a  privilege  in  itself."  Necessity,  he  says,  is  of  three  sorts, 
and  under  the  third',  he  adds,  "  If  a  fire  be  taken  in  a  street,  I  may 
justify  pulling  down  the  walls  or  house  of  another  man  to  save  the 
row  from  the  spreading  of  the  fire."  Now  in  the  present  case,  if 
any  person,  in  order  to  stop  the  progress  of  the  flames,  had  insisted 
on  pulling  down  the  booth  wherein  the  hops  were  deposited,  and  in 
doing  this  the  hops  would  have  been  damaged,  the  carrier  would  not 
have  been  liable  to  make  good  such  damage ;  for  it  would  have  been 
unlawful  for  him  to  have  prevented  the  pulling  down  the  booth. 

It  is  expressly  found,  in  the  present  case,  that  the  fire  burnt  with 
unextinguishable  violence.  The  breaking  out  of  the  fire  was  an 
event  which  God  only  could  foresee.  And  the  course  it  would  take 
was  as  little  to  be  discovered  by  human  penetration. 

Bond,  in  reply.  There  are  several  strong  cases  where  there  could 
not  be  any  negligence.  It  is  not  sufficient  in  these  cases  to  negative 
any  negligence;  for  everything  is  negligence  which  the  law  does 
not  excuse,  1  Wils.  282.  And  the  question  here  is,  is  this  a  case 
which  the  law  does  excuse  ?  In  Goffe  v.  Clinkard,  cited  in  Wils.  282, 
there  was  all  possible  care  on  the  part  of  the  defendants.  The  judg- 
ment in  the  case  of  Gibbon  v.  Peyton  and  another,  4  Burr.  2298, 
which  was  an  action  against  a  stagecoachman  for  not  delivering 
money  sent,  is  extremely  strong;  there  Lord  Mansfield  said,  4  Burr. 
2030,  "a  common  carrier,  in  respect  of  the  premium  he  is  to  receive, 
runs  the  risk  of  them,  and  must  make  good  the  loss,  though  it 
happen  without  any  fault  in  him;  the  reward  making  him  answer- 
able for  their  safe  delivery." 

That  a  carrier  was  liable  in  the  case  of  a  robbery  was  first  held  in 
9  Ed.  4,  pi.  40. 

A  bailee  only  engages  to  take  care  of  his  goods  as  his  own,  and  is 
not  answerable  for  a  robbery;  but  a  carrier  insures.  1  Ventr.  190, 
238;  Sir  T.  Raym.  220,  s.  c. ;  1  Mod.  85. 

In  Barclay  and  Heygena,  E.  24,  G.  3,  B.  II.,  which  was  an  action 
against  a  master  of  a  ship  to  recover  the  value  of  some  goods  put  on 
board  his  ship  in  order  to  be  carried  to  St.  Sebastian;  it  was  proved 
that  an  irresistible  force  broke  into  the  ship  in  the  river  Thames,  and 
stole  the  goods;  yet  the  defendant  was  held  answerable.  In  Sutton 
and  Mitchel,  at  the  sittings  at  Guildhall  after  Tr.  25,  G.  3,  the  ques- 
tion was  not  disputed  as  far  as  to  the  value  of  the  ship  and  freight. 


CARRIERS    LIABILITY.  391 

There  is  no  distinction  between  that  case  and  a  land  carrier.  And 
there  can  be  no  hardship  in  the  Court's  determining  in  favor  of  tin- 
plaintiff;  for  when  the  law  is  once  known  and  established,  the 
parties  may  contract  according  to  the  terms  which  it  prescrib 

As  to  negligence  being  a  matter  of  fact,  that  is  answered  by  the 
decision  in  the  Company  of  the  Trent  Navigation  against  Wood. 

Lord  Mansfield.  There  is  a  nicety  of  distinction  between  the 
act  of  God  and  inevitable  necessity.  In  these  cases  actual  negli- 
gence is  not  necessary  to  support  the  action.      Cur.  tide  vult. 

Afterward  Lord  Mansfield  delivered  the  unanimous  opinion  of  the 
Court. 

After  stating  the  case  —  The  question  is,  whether  the  common 
carrier  is  liable  in  this  case  of  fire  ?  It  appears  from  all  the  cases 
for  one  hundred  years  back,  that  there  are  events  for  which  the 
carrier  is  liable  independent  of  his  contract.  By  the  nature  of  his 
contract,  he  is  liable  for  all  due  care  and  diligence;  and  for  any 
negligence  he  is  suable  on  his  contract.  But  there  is  a  further 
degree  of  responsibility  by  the  custom  of  the  realm,  —  that  is,  by  the 
common  law;  a  carrier  is  in  the  nature  of  an  insurer.  It  is  laid 
down  that  he  is  liable  for  every  accident,  except  by  the  act  of  God 
or  the  king's  enemies.  Now  what  is  the  act  of  God  ?  I  consider 
it  to  mean  something  in  opposition  to  the  act  of  man;  for  every- 
thing is  the  act  of  God  that  happens  by  his  permission;  everything 
by  his  knowledge.  But  to  prevent  litigation,  collusion,  and  the 
necessity  of  going  into  circumstances  impossible  to  be  unravelled, 
the  law  presumes  against  the  carrier,  unless  he  shows  it  was  done 
by  the  king's  enemies,  or  by  such  act  as  could  not  happen  by  the 
intervention  of  man,  as  storms,  lightning,  and  tempests. 

If  an  armed  force  come  to  rob  the  carrier  of  the  goods,  he  is 
liable;  and  a  reason  is  given  in  the  books,  which  is  a  bad  one,  viz.. 
that  he  ought  to  have  a  sufficient  force  to  repel  it;  but  that  would 
be  impossible  in  some  cases,  as,  for  instance,  in  the  riots  in  the  year 
1780.  The  true  reason  is,  for  fear  it  may  give  room  for  collusion, 
that  the  master  may  contrive  to  be  robbed  on  purpose,  and  share  the- 
spoil. 

In  this  case,  it  does  not  appear  but  that  the  fire  arose  from  the 
act  of  some  man  or  other.  It  certainly  did  arise  from  some  act  of 
man;  for  it  is  expressly  stated  not  to  have  happened  by  lightning. 
The  carrier  therefore  in  this  case  is  liable,  inasmuch  as  he  is  liable 
for  inevitable  accident. 

Judgment  for  the  plaintiff* 


392  CARRIERS    OF    GOODS. 

COLT   v.    M'MECHEN. 

6  Johus.  (N.  Y.  Sup.  Ct.)  160.     1810. 

This  was  an  action  on  the  case,  against  the  defendant,  as  a 
common  carrier  of  goods  for  hire,  in  a  certain  sloop,  called  the 
"Margaret,"  between  Kinderhook  and  New  York,  on  the  Hudson 
Eiver.  The  declaration  stated  that  the  plaintiffs  were  possessed  of 
certain  goods,  etc.,  which  the  defendant,  by  his  servant  Matthew 
M'Kean,  master  of  the  said  sloop,  received  on  board  to  carry,  trans- 
port, and  convey  from  New  York  to  Kinderhook  landing,  for  a  reas- 
onable price  or  compensation,  etc.,  but  that  the  goods  were  never 
delivered,  etc.     Plea,  not  guilty. 

Spencer,  J.  The  plaintiffs  have  moved  for  a  new  trial  on  two 
grounds :  1st,  For  a  misdirection  to  the  jury,  in  stating  that  the 
failure  of  the  wind  was  the  act  of  God ;  and,  2d,  For  that  the  ver- 
dict was  against  evidence,  on  the  point  submitted  to  the  jury,  in 
relation  to  the  negligence  or  carelessness  of  the  master  of  the  sloop, 
after  she  struck. 

There  can  be  no  contrariety  of  opinion,  on  the  law  which  renders 
common  carriers  liable.  However  rigid  the  rule  may  be,  they  are 
responsible  for  every  injury  done  to  goods  intrusted  to  them  to 
carry,  unless  it  proceeds  from  the  act  of  God,  or  the  enemies  of  the 
land.  What  shall  be  considered  the  act  of  God,  as  contra-distin- 
guished from  an  act  resulting  from  human  means,  affords  the  only 
difficulty  in  the  case. 

The  cause  was  summed  up  to  the  jury  on  this  point,  "  that  if  they 
were  satisfied  from  the  whole  evidence,  that  the  vessel  ran  ashore 
in   consequence  of  the  sudden  failure  of  the  wind,  the  law  would 
consider  it  as  the  act  of  God,  and  exculpate  the  defendant."     By 
finding  a  verdict  for  the  defendant,  the  jury  have  believed  the  testi- 
mony of  Captain  M'Kean,  and  the  other  witnesses  produced  by  the 
defendant,  in  their  account  of  the  manner  and  circumstances  under 
which  the  vessel  grounded.     The  substance  of   that   testimony  is, 
that  the  vessel  being  on  her  passage  from  New  Yrork  to  Kinderhook, 
late  in  the  month  of  November,  1800,  proceeded  on  the  passage  to 
West  Camp,  where  the  vessel  came  to,  from  thence  they  weighed 
anchor  and  beat  against  the  wind;  from  the  lateness  of  the  season, 
and  for  fear  of  ice,  the  captain  was  anxious  to  make  Livingston's 
dock,  which  was  considered  a  place  of  safety,  and  at  which  they  had 
nearly  arrived,   when   the   accident   happened;  that  the  wind  was 
light  and  variable,  but  sufficient  to  enable  them  to  make  considerable 
progress,   and  would  have  been  sufficient,    if  it  had  continued,   to 
have  enabled  them  to  have  reached  the  dock,  in  a  few  more  tacks ; 
they  were  standing  for  the  west  shore,  and  had  approached  it,  as 
near  as  usual  and  proper,  when  they  put  down  the  helm  to  bring  her 


carrier's  liability.  393 

about,  the  jib  sail  began  to  fill,  the  vessel  partly  changed  her  tack, 
when  the  wind  suddenly  ceased  blowing,  and  the  headway  under  which 
the  vessel  was,  shot  her  on  the  bank.  Captain  M'Kean  states,  that 
he  was  well  acquainted  with  the  shore,  and  had  before  approached 
as  near  as  he  did  then,  when  beating  to  windward;  and  that,  when 
standing  for  the  west  shore,  he  had  wind  enough  to  enable  him  to 
manage  the  vessel  with  safety;  that  as  the  water  fell,  the  stern  of 
the  sloop  settled,  and  did  not  rise  until  flood  tide,  in  consequence  of 
which  the  water  rushed  in  at  the  windows,  and  thereby  the  plain- 
tiff's goods  were  wet  and  damaged.  He  states,  distinctly,  that  the 
sudden  and  entire  failure  of  the  wind  was  the  sole  cause  of  the 
vessel's  grounding. 

The  case  of  Amies  v.  Stevens,  1  Str.  128,  shows  that  a  sudden 
gust  of  wind,  by  which  the  hoy  of  the  carrier,  shooting  a  bridge, 
was  driven  against  a  pier  and  overset,  by  the  violence  of  the  shock, 
has  been  adjudged  to  be  the  act  of  God,  or  vis  divina.  The  sudden 
gust,  in  the  case  of  the  hoyman,  and  the  sudden  and  entire  failure 
of  the  wind  sufficient  to  enable  the  vessel  to  beat,  are  equally  to  be 
considered  the  acts  of  God.  He  caused  the  gust  to  blow  in  the  one 
case;  and  in  the  other,  the  wind  was  stayed  by  Him. 

It  has  been  said,  that  the  captain  was  guilty  of  negligence  in 
attempting  to  beat,  and  in  approaching  the  shore  as  near  as  he  did 
when  the  disaster  happened,  the  wind  being,  as  he  states,  light  and 
variable.  It  may  be  observed,  that  the  master  had  his  choice  of 
alternatives,  either  to  improve  the  wind  he  then  had,  in  order  to 
reach  a  place  of  safety,  or  to  be  exposed,  in  the  middle  of  the  river, 
to  the  effects  of  ice.  The  season  of  the  year,  and  the  interests  of 
all  concerned,  justified  the  captain  in  attempting  to  reach  Living- 
ston's dock.  It  was  not,  as  I  recollect,  pretended,  on  the  trial,  that 
his  conduct  was  improper  and  unus\ial,  in  approaching  the  shore  as 
near  as  he  did  on  the  tack  in  which  the  vessel  grounded;  at  all 
events,  the  case  does  not  show  that  the  judge  expressed  any  opinion 
on  that  point;  and  the  plaintiff  must  have  had  the  full  benefit  of 
that  objection  to  the  captain's  conduct.  I  should  undoubtedly  have 
been  of  opinion,  as  the  captain  was  situated,  taking  into  view  the 
lateness  of  the  season,  the  narrowness  of  the  channel,  and  the  fact 
that  he  was  not  nearer  the  shore  than  is  usual  and  customary  in 
beating,  that  he  was  not  guilty  of  negligence  or  improper  conduct 
in  that  respect. 

No  rule  of  law  having  been  violated,  in  the  charge  to  the  jury,  if 
there  even  were  grounds  for  saying  that  there  is  some  degree  of 
negligence  imputable  to  the  master,  that  point  has  been  under  the 
consideration  of  the  jury,  or  it  was  not  insisted  on  before  them, 
and,  in  either  case,  when  the  plaintiffs  attempt  to  fix  the  defendants 
with  a  loss  from  a  very  rigid  rule  of  law,  I  should  not  disturb  the 
verdict  of  a  jury,  to  give  them  another  opportunity  to  urge  that 
objection.     In  the  case  of  The  Proprietors  of  the  Trent  Navigation 


394  CARRIERS    OF    GOODS. 

v.  Wood,  the  vessel  was  sunk,  by  driving  against  an  anchor,  in  the 
river  Huniber,  and  the  goods  were  considerably  damaged  by  the 
accident;  it  was  not  pretended  by  the  counsel  that  this  was  the  act 
of  God,  and  Lord  Mansfield  considered  it  the  injury  of  a  private 
man,  within  the  reason  of  the  instance  of  robbery.  Abbott,  in  his 
notice  of  this  case  (Abbott,  256),  observes  that  both  parties  were 
held  to  have  been  guilty  of  negligence,  the  one  in  leaving  his  anchor 
without  a  buoy,  the  other  in  not  avoiding  it;  as  when  he  saw  the 
vessel  in  the  river,  he  must  have  known  that  there  was  an  anchor 
near  at  hand ;  or  if  it  was  to  be  taken ,  that  negligence  was  impu- 
table only  to  the  master,  who  had  left  his  anchor  without  a  buoy, 
that  he  was  answerable  over  to  the  masters  and  owners  of  the  vessel, 
whose  cargo  had  been  injured.  Again,  he  observes  (p.  227),  that  if 
a  ship  is  forced  on  a  rock  or  shallow,  by  adverse  winds  or  tempests, 
or  if  the  shallow  was  occasioned  by  a  recent  collection  of  sand, 
where  ships  could  before  sail  with  safety,  the  loss  is  to  be  attributed 
to  the  act  of  God,  or  the  perils  of  the  sea.  Upon  a  position  so 
plain,  in  my  apprehension,  as  that  the  sudden  cessation  of  a  wind 
which  was  competent,  at  the  very  moment  when  the  vessel  began 
to  come  about,  for  the  avoidance  of  the  shoal,  was  the  act  of  God , 
and  did  not  arise  from  the  fault  or  negligence  of  man,  I  am  at  a 
loss  for  further  illustration. 

The  second  point,  on  which  a  new  trial  is  sought,  was  fairly  and 
fully  before  the  jury ;  and  without  entering  upon  it  further,  I  can- 
not but  express  my  perfect  concurrence  in  opinion  with  them ;  the 
master  did  everything  which  could  reasonably  be  expected  of  him 
to  prevent  the  vessel  from  sinking.  Accordingly,  my  opinion  is 
against  a  new  trial. 

Thompson,  J.,  Van  Ness,  J.,  and  Yates,  J.,  concurred. 
Kent,  Ch.  J.     I  concur  in  the  general  doctrine,  that  the  sudden 
failure   of  the  wind  was  an  act  of  God.     It  was  an  event  which 
could  not  happen  by  the  intervention  of  man,  nor  be  prevented  by 
human   prudence.     But   I   think  here  was  a  degree  of  negligence, 
imputable  to  the  master,  in  sailing  so  uear  the  shore  under  a  "light; 
variable  wind,"  that  a   failure   in  coming  about   would   cast   him 
aground.     He   ought  to  have  exercised  more  caution,  and  guarded 
against  such  a  probable  event,  in  that  case,  as  the  want  of  wind  to 
bring  his  vessel  about.     A  common  carrier  is  only  to  be  excused 
from  a  loss  happening  in  spite  of  all  human  effort  and  sagacity. 
Trent  Navigation  v.  Wood,  3  Esp.  N.  P.  127   [383].     A  casus  for- 
tuities was  defined,  in  the  civil  law,  to  be  quod  fato  contingit,  cuivis 
diligentisshno  possit  contingere.     But  as  this  point  does  not  appear 
to  have  been  particularly  urged  at  the  trial,  and  the  verdict  nega- 
tives the  charge  of  negligence;  and  as  the  responsibility  of   com- 
mon carriers  may  be  deemed  sufficiently  strict,  I  am  content  not  to 
interfere  with  the  verdict,  though  I  think  that  the  evidence  would 
have  warranted  the  conclusion  of  negligence  to  a  certain  extent. 

Judgment  for  the  defendant. 


caeeiee's  liability.  395 

FRIEND,  etc.    v.    WOODS. 
6  Gratt.  (Va.)  189.     1849. 

Daniel,  J.  By  the  common  law  a  carrier  is  treated  as  an  insurer 
against  all  damage  to,  or  loss  of,  goods  intrusted  to  him  for  trans- 
portation, except  such  as  may  arise  from  the  act  of  God,  the  act  of 
the  enemies  of  the  country,  or  the  act  of  the  owner  of  the  goods. 
In  the  case  of  Murphy,  Brown  &  Co.  v.  Staton,  3  Munf.  2o(.t,  it 
was  decided  by  this  Court  that  the  owners  of  boats  engaged  in  tin- 
upper  navigation  of  James  River  were  subject  to  this  rule,  and 
liable  for  losses  arising  from  the  dangers  of  that  navigation.  It  was 
also  further  decided  in  that  case  that  if  a  loss  happens,  the  onus  lies 
on  the  carrier  to  exempt  himself  from  liability;  and  that  his  defence 
is  not  sustained  by  showing  that  the  navigation  is  attended  with  so 
much  danger  that  a  loss  may  happen,  notwithstanding  the  utmost 
efforts  to  prevent  it,  and  that  the  person  conducting  the  boat  pos- 
sessed competent  skill,  used  due  diligence,  and  provided  hands  of 
sufficient  strength  and  experience  to  assist  him. 

The  propriety  of  the  decision  it  is  believed  has  not  been  ques- 
tioned. We  have  at  least  no  report  of  any  effort  to  disturb  it.  The 
case  may  therefore  be  regarded  as  settling  that  the  liabilities  of 
common  carriers  upon  our  navigable  streams  are  fixed  by  the  com- 
mon-law rule,  and  that  losses  arising  from  the  ordinary  dangers  of 
navigation,  however  great  and  however  carefully  guarded  against, 
do  not  fall  within  the  exception. 

It  is  contended  by  the  plaintiffs  in  error,  that  the  evidence  offered 
by  them  in  the  Court  below  tended  to  show  that  the  loss  sustained 
by  the  plaintiff  was  occasioned  by  such  an  extraordinary  peril  as 
negatived  all  legal  inference  of  negligence  on  the  part  of  the  carrier, 
and  made  the  loss  ref errible  to  the  act  of  God ;  and  that  the  instruc- 
tion given  by  the  Court  at  the  instance  of  the  plaintiff  was  erroneous 
and  prejudicial  to  them. 

It  appears  from  the  bill  of  exceptions,  that  the  plaintiff,  having 
proved  that  he  delivered  at  the  Kanawha  Salines,  in  the  county  of 
Kanawha,  on  board  of  a  steamboat  in  the  charge  of  the  defendants, 
who  were  the  owners  thereof,  and  common  carriers,  a  quantity  of 
salt,  to  be  carried  on  the  said  boat  to  Nashville,  in  the  State  of 
Tennessee,  for  the  transportation  of  which  the  defendants  were  to 
receive  a  stipulated  freight  per  barrel;  and  that  the  said  boat 
freighted  with  said  salt  proceeded  on  her  voyage  as  far  as  to  the 
confluence  of  the  Elk  River  with  the  Kanawha,  when  she  stranded, 
sprung  a  leak,  and  filled  with  water,  whereby  a  portion  of  the  salt 
was  wholly  lost,  and  the  balance  much  damaged  and  impaired  in 
value;  and  the  defendants  having  then  introduced  evidence  tending 


396  CARRIERS    OF   GOODS. 

to  prove  that  the  -water  in  the  river  was  in  good  navigable  condition; 
that  the  boat  was  conducted  through  the  ordinary  channel  for  steam- 
boat navigation:  that  some  eight  or  ten  days  before  the  boat  pro- 
ceeded on  her  voyage  there  was  a  rise  of  Elk  River,  a  tributary  of 
the  Kanawha,  and  the  ice  gorged  at  its  mouth,  and  a  bar  of  sand 
and  gravel  formed  in  the  channel  along  which  the  boat  had  to  pass, 
and  that  the  officers  and  crew  of  the  boat  were  ignorant  of  the  for- 
mation of  the  bar  when  the  boat  stranded  upon  it,  and  that  the 
officers  and  crew  used  their  efforts  to  save  the  salt  after  the  boat 
had  so  stranded;  the  plaintiff  moved  the  Court  to  instruct  the  jury 
upon  the  law  governing  the  case :  Whereupon  the  Court  instructed  the 
jury  that  if  they  believed  from  the  evidence  that  the  boat  was  stranded 
by  running  upon  a  bar  previously  formed  in  the  ordinary  channel  of 
the  river,  but  that  the  existence  of  the  bar  might  by  human  fore- 
sight and  diligence  have  been  ascertained  and  avoided,  although  the 
navigators  or  those  in  charge  of  the  boat  were  ignorant  of  its  exist- 
ence at  the  time  the  boat  ran  upon  it,  the  defendants  were  liable  for 
the  loss  (if  any)  of  the  salt  freighted  by  them  on  the  boat  occa- 
sioned by  its  stranding;  although  the  jury  might  be  satisfied  that 
the  defendants,  after  the  boat  stranded,  used  all  the  means  within 
their  power  and  control  to  preserve  the  freight  on  board  the  boat 
from  being  lost  or  injured. 

Among  the  strongest  authorities  cited  in  behalf  of  the  plaintiffs 
in  error  are  the  cases  of  Smyrl  v.  Niolon,  2  Bailey's  R.  421,  and 
Williams  v.  Grant,  1  Conn.  R.  487.  In  the  former  it  was  held  that 
a  loss  occasioned  by  a  boat's  running  on  an  unknown  "  snag  "  in  the 
usual  channel  of  the  river,  is  referrible  to  the  act  of  God,  and  that 
the  carrier  will  be'  excused ;  and  in  the  latter  it  was  said  that  strik- 
ing upon  a  rock  in  the  sea  not  generally  known  to  navigators,  and 
actually  not  known  to  the  master  of  the  ship,  is  the  act  of  God. 
And  other  authorities  go  so  far  as  to  assert  that  if  an  obstruction 
be  secretly  sunk  in  the  stream,  and,  not  being  known  to  the  carrier, 
his  boat  founder,  he  would  be  excused.  The  last  proposition  stands 
condemned  by  the  leading  cases,  both  English  and  American.  In 
the  case  of  Forward  v.  Pittard,  1  T.  R.  27  [385]  Lord  Mansfield 
says,  that  "to  prevent  litigation,  collusion,  and  the  necessity  of 
going  into  circumstances  impossible  to  be  unravelled,  the  law  pre- 
sumes against  the  carrier,  unless  he  shows  it  was  done  by  the  king's 
enemies,  or  by  such  an  accident  as  could  not  happen  by  the  inter- 
vention of  man,  as  storms,  lightning,  and  tempests."  The  same 
doctrine  is  strongly  stated  in  M'Arthur  v.  Sears,  21  Wend.  R.  196, 
where  it  is  said  that  "  no  matter  what  degree  of  prudence  may  be 
exercised  by  the  carrier  and  his  servants;  although  the  delusion  by 
which  it  is  baffled,  or  the  force  by  which  it  is  overcome,  be  inevi- 
table; yet  if  it  be  the  result  of  human  means,  the  carrier  is 
responsible." 

These  cases  clearly  restrict  the  excuse  of  the  carrier,  for  losses 


carrier's  liability.  397 

occasioned  by  obstructions  in  the  stream,  to  such  obstructions  as  are 
wholly  the  result  of  natural  causes.  And  the  cases  in  which  the 
carriers  have  been  exonerated  from  losses  occasioned  by  such  obstruc- 
tions as  Smyrl  v.  NioloD,  and  Williams  v.  Grant,  before  mentioned, 
will,  I  think,  upon  examination,  be  found  to  be  cases  in  which 
either  the  bills  of  lading  contained  the  exception  "of  the  perils  of 
the  river,"  or  in  which  that  exception  has  been  confounded  with  the 
exception  of  the  "act  of  God."  In  the  case  of  M' Arthur  v.  Sears, 
a  distinction  between  the  two  phrases  is  pointed  out.  It  is  shown 
that  the  exception  "of  dangers  of  perils  of  the  sea  or  river,"  often 
contained  in  bills  of  lading,  are  of  much  broader  compass  than  the 
words  "  act  of  God ; "  and  the  case  of  Gordon  v.  Buchanan,  5  Yerg. 
R.  71,  is  cited  with  approbation,  in  which  it  is  said  that  "  many  of 
the  disasters  which  would  not  come  within  the  definition  of  the  act 
of  God  would  fall  within  the  former  exception ;  such,  for  instance, 
as  losses  occasioned  by  hidden  obstructions  in  the  river  newly 
placed  there,  and  of  a  character  that  human  skill  and  foresight 
could  not  have  discovered  and  avoided." 

In  a  note  to  the  case  of  Coggs  v.  Barnard,  in  the  American  edition 
of  Smith's  Leading  Cases,  43  Law  Lib.  180,  the  American  decisions 
are  collated  and  reviewed,  and  a  definition  is  given  to  the  expression 
"act  of  God,"  which  expresses,  I  think,  with  precision,  its  true 
meaning.  The  true  notion  of  the  exception  is  there  held  to  be 
"those  losses  that  are  occasioned  exclusively  by  the  violence  of 
nature  ;  by  that  kind  of  force  of  the  elements  which  human  ability 
could  not  have  foreseen  or  prevented;  such  as  lightning,  tornadoes, 
sudden  squalls  of  wind."  "The  principle  that  all  human  agency 
is  to  be  excluded  from  creating  or  entering  into  the  cause  of  mis- 
chief, in  order  that  it  may  be  deemed  the  act  of  God,  shuts  out  those 
cases  where  the  natural  object  in  question  made  a  cause  of  mischief, 
solely  by  the  act  of  the  captain  in  bringing  his  vessel  into  that 
particular  position  where  alone  the  natural  object  could  cause  mis- 
chief: rocks,  shoals,  currents,  etc.,  are  not,  by  their  own  nature 
and  inherently,  agents  of  mischief  and  causes  of  danger,  as  tempests, 
lightning,  etc.,  are." 

The  act  of  God  which  excuses  the  carrier  must  therefore,  I  think, 
be  a  direct  and  violent  act  of  nature. 

The  rule,  it  is  insisted,  is  a  harsh  one  upon  the  carrier,  and  it  is 
argued  that  the  Court  should  be  slow  to  extend  it  further  than  it  is 
fully  sustained  by  the  cases.  However  harsh  the  rule  may  at  first 
appear  to  be,  it  has  been  long  established,  and  is  well  founded  on 
maxims  of  public  policy  and  convenience;  and,  viewing  the  carrier 
in  the  light  of  an  insurer,  it  is  of  the  utmost  importance  to  him,  as 
well  as  to  the  public  who  deal  with  him,  that  the  acts  for  which  he 
is  to  be  excused  should  have  a  plain  and  well-defined  meaning. 
When  it  is  understood  that  no  act  is  within  the  exception,  except 
such  a  violent  act  of  nature  as  implies  the  entire  exclusion  of  all 


398  CARRIERS    OF    GOODS. 

human  agency,  the  liabilities  of  the  carrier  are  plainly  marked  out, 
and  a  standard  is  fixed  by  which  the  extent  of  the  compensation  to 
indemnify  him  for  his  risks  can  be  readily  measured  and  ascertained. 
The  rule,  too,  when  so  understood,  puts  to  rest  many  perplexing 
questions  of  fact,  in  the  litigation  of  which  the  advantage  is  always 
on  the  side  of  the  carrier.  Under  this  rule  the  carrier  is  not  per- 
mitted to  go  into  proofs  of  care  or  diligence,  and  the  owner  of  the 
goods  is  not  required  to  adduce  evidence  of  negligence  till  the  loss 
in  question  is  shown  to  be  the  immediate  result  of  an  extraordinary 
convulsion  of  nature,  or  of  a  direct  visitation  of  the  elements, 
against  which  the  aids  of  science  and  skill  are  of  no  avail. 

So  understanding  the  law,  I  do  not  perceive  how  the  defendants 
in  error  could  have  been  prejudiced  by  the  instruction  complained 
of,  and  am  of  opinion  to  affirm  the  judgment. 

Judgment  affirmed.1 


RAILROAD  CO.   v.   REEVES. 
10  Wall.  176.     1S69. 

In  error  to  the  Circuit  Court  for  the  Western  District  of  Ten- 
nessee, the  case  being  this :  — 

Reeves  sued  the  Memphis  and  Charleston  Railroad  Company  as  a 
common  carrier  for  damage  to  a  quantity  of  tobacco  received  by  it 
for  carriage,  the  allegation  being  negligence  and  want  of  due  care. 
The  tobacco  came  by  rail  from  Salisbury,  North  Carolina,  to  Chat- 
tanooga, Tennessee,  reaching  the  latter  place  on  the  5th  of  March, 
1867.  At  Chattanooga  it  was  received  by  the  Memphis  and  Charles- 
ton Railroad  Company  on  the  5th  of  March,  and  reloaded  into  two 
of  its  cars,  about  five  o'clock  in  the  afternoon. 

The    Memphis    and    Charleston    Railroad    track    extends    from 

l  In  Gordon  v.  Little,  8  Serg.  &  Rawle,  533,  it  was  held  that  a  general  usage, 
softening  the  responsibility  of  carriers  on  the  western  waters,  was  admissible  in  their 
defence.  This  was  the  case  of  a  keel-boat  sailing  from  Pittsburg,  in  Pennsylvania,  to 
Hopkinsville,  Kentucky.  But  no  offer  of  that  kind  was  made  in  the  case  at  bar  ;  and 
it  may  be  very  questionable,  since  the  late  cases  in  this  court  denying  all  restriction 
even  by  notice,  whether  such  a  custom,  which  must  arise  from  the  management  of 
carriers,  would  be  sustainable  in  true  policy,  owing  to  the  opening  which  it  gives  for 
fraud  and  collusion,  etc.  In  Aymar  v,  Astor,  before  cited,  and  The  Schooner  Reeside, 
2  Sumn.  567,  560,  a  general  commercial  custom  enlarging  the  phrase  "  perils  or  dangers 
of  the  seas,"  in  a  bill  of  lading,  so  as  to  comprehend  causes  of  loss  beyond  their  legal 
import,  was  denied.  Mr.  Justice  Story,  in  the  last  case,  very  properly  expresses  a 
general  reluctance  to  the  reception  of  such  proof  in  cases  where  it  has  not  heretofore 
been  applied.  He  finally  rejected  it,  because  it  worked  a  contradiction  of  the  written 
agreement.  Turney  v.  Wilson,  7  Yerg.  340,  S.  P.  But  see  Cherry  v.  Holly,  14 
Wendell,  26,  and  Barber  v.  Brace,  3  Conn.  R.  9.  Also  Lawrence  v.  M'Gregor,  1 
Wright,  193.     Per  Cowen,  J.,  in  Mc Arthur  v.  Sears,  21  Wend.  190. 


CARRIER'S    LIABILITY.  399 

Memphis  to  Stevenson,  Alabama,  a  point  west  of  Chattanooga,  on 
the  Nashville  and  Chattanooga  Railroad.  Between  Chattanooga 
and  Stevenson,  by  a  contract  between  the  two  companies,  the  trains 
of  the  Memphis  and  Charleston  road  were  drawn  by  engines  belon 
ingtothe  last-named  road,  an  agent  of  the  road  being  at  Chattanooga 
and  receiving  freight  and  passengers  there  for  Memphis. 

One  Price,  who  as  agent  of  Reeves  was  attending  and  looking 
after  the  tobacco  along  the  route,  testified  (though  his  testimony  on 
this  point  was  contradicted)  that  the  agent  of  the  company  at  Chat- 
tanooga promised  that,  if  the  bills  were  brought  over  in  time,  the 
tobacco  should  go  forward  at  six  o'clock  that  evening;  and  shortly 
before  that  time  informed  him  that  the  bills  had  come  over,  and 
assured  him  that  the  tobacco  would  go  off  at  that  hour.  It  did  not 
do  so,  though  he,  Price,  the  agent,  supposing  that  it  would,  went 
on  by  a  passenger  train  and  so  could  no  longer  look  after  the 
tobacco.  By  the  time-tables  which  governed  at  the  time  the  for  - 
warding  of  freight,  goods  received  during  one  day  were  forwarded 
the  next  morning  at  5.45  a.m.,  and  at  that  time  the  train  on  which 
the  tobacco  in  question  was  placed  went  off.  This  train,  however, 
found  the  road  obstructed  by  rocks  that  had  fallen  during  the  night 
and  had  to  return,  and,  in  consequence  of  information  of  the  washi 
away  of  a  bridge  on  the  road,  had  to  remain  at  Chattanooga.  Chat- 
tanooga is  built  on  low  ground,  on  the  Tennessee  River,  which,  a 
short  distance  west  of  it,  runs  along  the  base  of  Lookout  Mountain. 
On  the  5th  of  March  there  had  been  heavy  rains  for  some  weeks, 
and  the  river  had  been  rising  and  was  very  high.  Freshets  of  the 
years  1826  and  1847,  the  highest  ever  remembered  previous  to  one 
now  to  be  spoken  of,  or  of  which  there  was  any  tradition,  had  not 
risen  by  within  three  feet  as  high  as  the  level  of  the  railroad  track 
in  the  station  where  the  cars  containing  the  tobacco  were  placed,  on 
their  coming  back  to  Chattanooga,  after  their  unsuccessful  attempt 
to  go  forward. 

The  river  rose  gradually  until  the  evening  of  the  1th  (Thursday), 
at  which  time  it  reached  the  high-water  mark  of  1S47.  That  night 
it  rose  an  average  of  four  inches  an  hour  from  7  p.  m.  to  G..'i(»  a.  m. 
of  the  8th  of  March,  and  it  continued  to  rise  until  about  2  p.  m.,  of 
Sunday,  the  10th  of  March.  On  Friday,  at  1  p.  m.,  the  engines 
standing  on  the  tracks  were  submerged  so  that  their  lower  fire- 
boxes were  covered.  On  Saturday,  at  8  p.  m.,  the  engines  and  cars 
were  submerged  ten  feet  or  more,  and  the  freight  in  question  w 
thus  damaged.  Had  it  gone  off  on  the  evening  of  the  nth  it  would 
not  have  been  damaged.  A  freight  train  did  leave  Chattanooga 
going  towards  Memphis  on  that  evening,  but  it  carried  freight  of 
the  Nashville  and  Chattanooga  road  only,  and  none  for  the  road  of 
the  defendant.  Four  or  five  days  elapsed  from  the  time  when  the 
water  began  to  come  up  into  the  town,  before  it  was  so  high  as  t<» 
submerge  the  cars   and   injure  the  freight.     No  one  expected  the 


400  CARRIERS    OF    GOODS. 

water  would  rise  as  it  did,  because  it  rose  full  fifteen  feet  higher 
than  had  ever  before  been  known.  The  rise  was  at  first  gradual, 
and  from  the  direction  of  Lookout  Mountain,  by  backing;  but  after- 
wards it  came  suddenly  from  the  direction  of  the  Western  and 
Atlantic  road,  opposite  to  its  former  direction,  and  then  rose  very 
rapidly.  Although  on  the  6th  the  river  was  getting  out  of  its 
banks,  there  was  no  apprehension,  up  to  the  night  of  the  7th,  that 
the  water  would  submerge  the  town.  During  the  night  of  the  7th 
merchants  removed  their  goods,  and  one  Phillips,  who  that  night 
removed  his  to  the  second  story  of  a  building  standing  on  ground 
no  higher  than  the  depot,  saved  them.  The  water  rose  into  his 
building  on  the  morning  of  the  8th.  The  people  finally  fled  to  the 
hills,  and  there  was  a  universal  destruction  of  property  as  well  of 
individuals  as  of  railroads  passing  through  the  city.  The  waters 
indeed  were  so  high  and  the  flood  finally  so  unexpected  that  the 
mayor  broke  open  railroad  cars  and  took  provisions  which  were  in 
process  of  transportation,  to  feed  the  famishing  population.  The 
cars  in  which  the  tobacco  was,  were  standing  on  the  highest  ground 
in  the  region  of  the  station.  There  were  roads  in  other  directions, 
beside  the  road  over  which  the  rock  had  fallen,  physically  travers- 
able by  the  cars  which  had  the  tobacco;  but  there  were  difficulties 
of  various  kinds  in  going  on  them,  which  the  agents  considered 
amounted  to  a  bar  to  try  to  use  them. 

Mr.  Justice  Miller.      ........ 

We  are  of  opinion,  then,  that  both  the  refusal  to  charge  as  re- 
quested and  the-  charge  actually  given  are  properly  before  us 
for  examination.  As  regards  the  first,  we  will  only  notice  one 
of  the  rejected  instructions,  the  fourth.  It  was  prayed  in  these 
words :  — 

"When  the  damage  is  shown  to  have  resulted  from  the  immediate 
act  of  God,  such  as  a  sudden  and  extraordinary  flood,  the  carrier 
would  be  exempt  from  liability,  unless  the  plaintiff  shall  prove  that 
the  defendant  was  guilty  of  some  negligence  in  not  providing  for 
the  safety  of  the  goods.  That  he  could  do  so  must  be  proven  by 
the  plaintiff,  or  must  appear  in  the  facts  of  the  case." 

It  is  hard  to  see  how  the  soundness  of  this  proposition  can  be 
made  clearer  than  by  its  bare  statement.  A  common  carrier  assumes 
all  risks  except  those  caused  by  the  act  of  God  and  the  public  enemy. 
One  of  the  instances  always  mentioned  by  the  elementary  writers 
of  loss  by  the  act  of  God  is  the  case  of  loss  by  flood  and  storm. 
Now,  when  it  is  shown  that  the  damage  resulted  from  this  cause 
immediately,  he  is  excused. 

What  is  to  make  him  liable  after  this  ?  No  question  of  his  negli- 
gence arises  unless  it  is  made  by  the  other  party.  It  is  not  neces- 
sary for  him  to  prove  that  the  cause  was  such  as  releases  him,  and 
then  to  prove  affirmatively  that  he  did  not  contribute  to  it.  If, 
after  he  has  excused  himself  by  showing  the  presence  of  the  over' 


CARRIER  S   LIABILITY.  401 

powering  cause,  it  is  charged  that  his  negligence  contributed  to  the 
loss,  the  proof  of  this  must  come  from  those  who  assert  or  rely 
on  it. 

The  testimony  in  the  case,  wholly  uncontradicted,  shows  one  of 
the  most  sudden,  violent,  and  extraordinary  floods  ever  known  in 
that  part  of  the  country.  The  tobacco  was  being  transported  from 
Salisbury,  North  Carolina,  to  Memphis,  on  a  contract  through  and 
by  several  railroad  companies,  of  whicli  defendant  was  one.  At 
Chattanooga  it  was  received  by  defendant,  and  fifteen  miles  out  the 
train  was  arrested,  blocked  by  a  land-slide  and  broken  bridges,  and 
returned  to  Chattanooga,  when  the  water  came  over  the  track  into 
the  car  and  injured  the  tobacco. 

The  second  instruction  given  by  the  court  says  that  if,  while  the 
cars  were  so  standing  at  Chattanooga,  they  were  submerged  by  a 
freshet  which  no  human  care,  skill,  and  prudence  could  have 
avoided,  then  the  defendant  would  not  be  liable;  but  if  the  cars 
were  brought  within  the  influence  of  the  freshet  by  the  act  of 
defendant,  and  if  the  defendant  or  his  agent  had  not  so  acted,  the 
loss  would  not  have  occurred,  then  it  was  not  the  act  of  God,  and 
defendant  would  be  liable.  The  fifth  instruction  given  also  tells 
the  jury  that  if  the  damage  could  have  been  prevented  by  any 
means  within  the  power  of  the  defendant  or  his  agents,  and  such 
means  were  not  resorted  to,  then  the  jury  must  find  for  the  plaintiff. 

In  contrast  with  the  stringent  ruling  here  stated,  and  as  expres- 
sive of  our  view  of  the  law  on  this  point,  we  cite  two  decisions  by 
courts  of  the  first  respectability  in  this  country. 

In  Morrison  v.  Davis  &  Co.,  20  Pennsylvania  State,  171,  goods 
being  transported  on  a  canal  were  injured  by  the  wrecking  of  the 
boat,  caused  by  an  extraordinary  flood.  It  was  shown  that  a  lame 
horse  used  by  defendants  delayed  the  boat,  which  would  otherwise 
have  passed  the  place  where  the  accident  occurred  in  time  to  avoid 
the  injury. .  The  court  held  that  the  proximate  cause  of  the  disaster 
was  the  flood,  and  the  delay  caused  by  the  lame  horse  the  remote 
cause,  and  that  the  maxim,  causa  proxima,  non  remota  spectator, 
applied  as  well  to  contracts  of  common  carriers  as  to  others.  The 
court  further  held,  that  when  carriers  discover  themselves  in  peril 
by  inevitable  accident,  the  law  requires  of  them  ordinary  care,  skill, 
and  foresight,  which  it  defines  to  be  the  common  prudence  which 
men  of  business  and  heads  of  families  usually  exhibit  in  matters 
that  are  interesting  to  them. 

In  Denny  v.  New  York  Central  Kailroad  Co.,  13  Gray,  481,  the 
defendants  were  guilty  of  a  negligent  delay  of  six  days  in  trans- 
porting wool  from  Suspension  Bridge  to  Albany,  and  while  in  their 
depot  at  the  latter  place  a  few  days  after,  it  was  submerged  by  a 
sudden  and  violent  flood  in  the  Hudson  River.  The  court  says  that 
the  flood  was  the  proximate  cause  of  the  injury,  and  the  delay  in 
transportation  the  remote  one;  that  the  doctrine  we  have  just  stated 


402  CAREIEES   OF    GOODS. 

governs  the  liabilities  of  common  carriers  as  it  does  other  occupations 
and  pursuits,  and  it  cites  with  approval  the  case  of  Morrison  v. 
Davis  &  Co. 

Of  the  soundness  of  this  principle  we  are  entirely  convinced,  and 
it  is  at  variance  with  the  general  groundwork  of  the  court's  charge 
in  this  case. 

As  the  case  must  go  back  for  a  new  trial,  there  is  another  error 
which  we  must  notice,  as  it  might  otherwise  be  repeated.  It  is  the 
third  instruction  given  by  the  court,  to  the  effect  that  if  the  defend- 
ant had  contracted  to  start  with  the  tobacco  the  evening  before,  and 
the  jury  believe  if  he  had  done  so  the  train  would  have  escaped 
injury,  then  the  defendant  was  liable.  Even  if  there  had  been  such 
a  contract,  the  failure  to  comply  would  have  been  only  the  remote 

cause  of  the  loss 

Judgment  reversed  and  a  new  trial  ordered.1 


b.  Act  of  Public  Enemy. 
MORSE  v.    SLUE.2 
King's  Bench.    1  Vent.  23S.     1672. 

The  case  was  argued  two  several  terms  at  the  bar,  by  Mr.  Holt 
for  the  plaintiff,  and  Sir  Francis  Wilmington  for  the  defendant,  and 
Mr.  Molloy  for  the. plaintiff,  and  Mr.  Wallop  for  the  defendant;  and 
by  the  opinion  of  the  whole  Court,  judgment  was  given  this  term 
for  the  plaintiff. 

Hale  delivered  the  reasons  as  followeth. 

Eirst,  by  the  Admiral  Civil  Law  the  master  is  not  chargeable  pro 
damno  fatali,  as  in  case  of  pirates,  storm,  etc.,  but  where  there  is 
any  negligence  in  him  he  is. 

Secondly,  This  case  is  not  to  be  measured  by  the  rules  of  the 
Admiral  Law,  because  the  ship  was  infra  corpus  comitatus. 

Then  the  first  reason  wherefore  the  master  is  liable  is,  because  he 
takes  a  reward;  and  the  usage  is,  that  half  wages  is  paid  him  before 
he  goes  out  of  the  country. 

Secondly,  If  the  master  would,  he  might  have  made  a  caution 
for  himself,  which  he  omitting  and  taking  in  the  goods  generally, 

i  Ace:  Fox  v.  Boston  &c.  B.  Co.,  148  Mass.  220  ;  Eodgers  v.  Missouri  Pac.  B. 
Co.,  75  Kan.  222,  88  Pac.  B.  885,  121  Am.  St.  B.  416.  Contra  :  Condict  v.  Grand 
Trunk  B.  Co.,  54  N.  Y.  500  ;  Green-Wheeler  Shoe  Co.  v.  Chicago,  B.  I.  &  P.  B. 
Co.,  130  Iowa,  123,  106  N.  W.  E.  499,  5  L.  B.  A.  N.  S.  882. 

2  Elsewhere  reported :  1  Vent.  190 ;  1  Mod.  85  ;  2  Lev.  69 ;  T.  Baym.  220 ; 
2  Keb.  866  ;  3  Keb.  72,  112,  135. 


carrier's  liability.  403 

he  shall  answer  for  what  happens.  There  was  a  case  (not  long 
since)  when  one  brought  a  box  to  a  carrier,  in  which  there  was  a 
great  sum  of  money,  and  the  carrier  demanded  of  the  owner  what 
was  in  it;  who  answered,  that  it  was  filled  with  silks  and  such  like 
goods  of  mean  value;  upon  which  the  carrier  took  it.  and  was 
robbed.'  And  resolved  that  he  was  liable.  But  if  the  carrier  had 
told  the  owner  that  it  was  a  dangerous  time,  and  if  there  were 
money  in  it,  he  durst  not  take  charge  of  it;  and  the  owner  had 
answered  as  before,  this  matter  would  have  excused  the  carrier. 

Thirdly,  He  which  would  take  off  the  master  in  this  case  from  the 
action  must  assign  a  difference  between  it  and  the  case  of  a  hoy- 
man,  common  carrier  or  innholder. 

'T  is  objected,  That  the  master  is  but  a  servant  to  the  owners. 

Answer,  The  law  takes  notice  of  him  as  no  more  than  a  servant. 
'T  is  known,  that  he  may  impawn  the  ship  if  occasion  be,  and  sell 
bona  peritura  ;  he  is  rather  an  officer  than  a  servant.  In  an  escape 
the  jailer  may  be  charged,  though  the  sheriff  is  also  liable,  for 
respondeat  superior.  But  the  turnkey  cannot  be  sued,  for  he  is  but 
a  mere  servant :  by  the  civil  law  the  master  or  owner  is  chargeable 
at  the  election  of  the  merchant. 

'T  is  further  objected,  That  he  receives  wages  from  the  owners. 

Answer,  In  effect  the  merchant  pays  him,  for  he  pays  the  owners 
freight,  so  that  'tis  but  handed  over  by  them  to  the  master;  if  the 
freight  be  lost,  the  wages  are  lost  too,  for  the  rule  is  freight,  is 
the  mother  of  wages:  therefore,  though  the  declaration  is,  that  the 
master  received  wages  of  the  merchant,  and  the  verdict  is,  that 
the  owners  pay  it,  't  is  no  material  variance. 

Objection,  'T  is  found,  that  there  were  the  usual  number  of  men 
to  guard  the  ship  ? 

Answer,  True,  for  the  ship,  but  not  with  reference  to  the  goods, 
for  the  number  ought  to  be  more  or  less  as  the  port  is  dangerous, 
and  the  goods  of  value,  33  H.  6,  1.  If  rebels  break  a  jail,  so  that  the 
prisoner  escape,  the  jailer  is  liable;  but  is  otherwise  of  enemies;  so 
the  master  is  not  chargeable  where  the  ship  is  spoiled  by  pirates. 
And  if  a  carrier  be  robbed  by  a  hundred  men,  he  is  never  the  more 
excused.     Ante. 


SOUTHERN   EXPRESS   CO.    v.   WOMACK. 
1  Heisk.  (Tenn.),  256.     1870. 

R.  McFarland,  S.  J.,  delivered  the  opinion  of  the  Court. 

This  is  an  action  brought  by  defendant  in  error  against  the  plain- 
tiff in  error  as  a  common  carrier,  for  failing  to  carry  and  deliver  a 
quantity  of  household  goods,   notes,  bonds,   checks,   etc..  according 


404  CARRIERS    OF    GOODS. 

to  contract,  from  Prospect  Depot,  in  Virginia,  to  Bristol,  Tennessee; 
and  in  another  count  for  failing  to  deliver  said  goods  at  Lynchburg, 
Virginia. 

The  plaintiff  recovered  in  the  Court  below,  and  a  new  trial  being 
refused  the  defendant,  an  appeal  in  error  has  been  presented  to  this 
Court. 

A  number  of  pleas  were  filed.  Upon  some  of  these  there  was 
issue,  and  to  others  a  demurrer  was  sustained.  We  do  not  deem  it 
necessary  to  consider  the  questions  raised  by  these  pleadings,  for 
in  our  opinion,  all  the  defences  therein  indicated,  so  far  as  they  are 
good  in  law,  might  have  been  made  under  the  first  plea,  which  is 
non  assum,2)sit.  We  will,  therefore,  proceed  to  inquire  whether  the 
plaintiff  in  error  had  the  full  benefit  of  all  the  defences  to  which  he 
was  entitled  under  the  general  issue. 

The  proof  tends  to  show  the  following  state  of  facts :  The  plain- 
tiff in  error  was  a  common  carrier,  in  the  full,  legal  sense  of  the 
term,  from  Eichmond,  in  Virginia,  to  Bristol,  Tennessee,  by  way  of 
Lynchburg.  Their  mode  of  transportation  was  by  railway.  Pros- 
pect Depot  was  a  way  station  between  Richmond  and  Lynchburg. 
About  the  middle  of  March,  1865,  the  boxes  containing  the  goods 
in  question  were  delivered  to  R.  V.  Davis,  the  agent  of  the  Com- 
pany at  Prospect  Depot,  for  transportation  to  Bristol,  the  boxes 
being  properly  marked.  Davies  gave  Mrs.  Womack,  the  wife  of 
the  defendant  in  error,  a  receipt  simply  acknowledging  the  receipt 
of  the  goods  for  transportation,  and  received  from  her  the  amount 
of  charges  for  transporting  the  goods  to  Lynchburg,  in  Confed- 
erate money,  he  not  being  authorized  to  collect  the  charges  any 
further. 

The  proof  further  shows  that  the  railway  trains  upon  which  the 
plaintiffs  in  error  carried  freights,  continued  to  pass  daily  in  the 
direction  of  Lynchburg,  with,  perhaps,  some  occasional  interrup- 
tion, until  near  the  7th  of  April.  That,  for  the  first  four  days  after 
the  goods  were  received,  Davis  carried  them  to  the  track  of  the 
railroad,  as  the  train  passed,  and  tendered  them  to  the  "messenger," 
as  he  is  called,  who  was  the  agent  of  the  company,  and  whose  duty 
it  was  to  receive  the  goods  upon  the  train,  and  forward  them.  That 
the  messenger  declined  to  take  the  goods  on,  alleging  that  he  had 
no  room  for  them,  but  would  try  to  take  them  next  day.  After  this, 
Davis  continued  each  day  for  some  weeks  to  apply  to  the  messenger 
to  take  the  goods,  but  was  "  put  off  "  from  day  to  day,  with  substan- 
tially the  same  reply.  That  towards  the  7th  of  April,  one  Thomas 
Agee,  who  had  hauled  the  goods  to  the  depot,  and  who  was  the 
friend  of  the  defendant  in  error,  finding  that  the  goods  were  still  in 
the  depot,  and  that  hostile  armies  were  approaching,  proposed  to 
Davis  to  take  charge  of  the  goods,  and  haul  them  away,  and  take 
care  of  them,  but  this  proposal  was  refused  by  Davis.  On  the  7th 
of  April  the  depot  was  captured  by  the  United  States  forces,  and 


carrier's  liability.  405 

the  goods  captured  or  destroyed,  except  a  small  quantity  that  were 
afterwards  recovered  by  the  defendants  in  error. 

The  proof  for  the  plaintiff  in  error  shows  that,  at  the  time  the 
goods  were  received,  Prospect  Depot  was  inside  the  military  lines  of 
the  Confederate  forces,  and  so  remained  until  the  7th  of  April. 
That  the  line  of  railroad  referred  to  was  not  owned  by  them,  but 
that  they  hired  from  the  railroad  company  a  car  which  they  used 
on  each  trip  for  the  transportation  of  their  freight.  The  proof 
further  shows  that  between  the  16th  of  March  and  the  17th  of  April, 
large  quantities  of  freight  were  sent  from  Richmond  and  other 
points  in  the  direction  of  Lynchburg;  that  the  Confederate  military 
forces  had  the  preference  upon  the  road,  and  on  some  occasions  the 
"Express  car"  was  taken  from  the  plaintiff  in  error,  for  the  use  of 
the  military,  and  the  proof  renders  it  probable  that  the  express  cars, 
during  the  period,  were  loaded  to  their  capacity,  when  going  in  the 
direction  of  Lynchburg,  before  they  reached  Prospect  Depot. 

It  was  further  proven  by  the  plaintiff  in  error,  that  they  gener- 
ally used  a  printed  form  of  receipt  which  they  gave  when  goods 
were  delivered  to  them,  but  at  the  time  of  this  transaction,  the 
agent,   Davis,   had  none  of  these  blanks  on  hand. 

It  was  also  proved  by  them,  that  when  Mrs.  Womack  was  asked 
what  the  boxes  contained,  she  replied  that  they  contained  ''beds, 
bed-clothing,  wearing  apparel,"  etc. ,  but  did  not  disclose  that  they 
contained  bonds,  notes,  or  anything  of  that  character,  the  question 
being  pressed  upon  her  no  further. 

Upon  this,  various  questions  are  made  and  argued  as  to  the  action 
of  the  Court  below. 

4.  Are  the  United  States  troops,  who,  it  is  alleged,  destroyed 
these  goods,  to  be  regarded  as  "the  public  enemies,"  or  "the  ene- 
mies of  the  country,"  in  the  sense  of  the  law,  so  as  to  excuse  the 
plaintiff  in  error  for  the  loss  of  the  goods  caused  by  these  acts, 
without  fault  on  the  part  of  the  agents  of  the  company?  His  Honor, 
the  Circuit  Judge,  decided  this  proposition  in  the  negative,  and 
said:  "The  United  States  army  or  troops  were  not  enemies  to  the 
Government,  or  public  enemies;  they  were  public  friends  and 
friends  to  the  Government;  there  was  but  one  Government  in  the 
United  States,  and  that  was  the  United  States  Government."  Con- 
sequently the  United  States  troops,  under  General  Stoneman,  a 
United  States  General,  and  commanding  for  the  United  States, 
were  not  the  enemies  of  the  United  States  Government.  His 
Honor  further  told  the  jury  "  that  the  Confederate  States  never  were 
recognized  by  any  Government  as  a  Government  de  jure  or  de  facto. 
Our  Supreme  Court  recognized  them  as  belligerents  so  as  to  regulate 
criminal  intent  in  robbery  and  some  other  felonies,  but  no  further. 
The  army  of  the  so-called  Confederate  States  was  an  unlawful  com- 
bination, nothing   but  a  mob,   however  huge  its  proportions   may 


406  CARRIEKS    OF    GOODS. 

have  been;  consequently  if  the  goods  were  destroyed  by  the  United 
States  troops,  that  would  not  exonerate  the  company." 

We  are  of  opinion  that  the  definition,    as    above   given   by   his 
Honor,  of  the  character  of  the  late  war,  and  as  to  the  status  of  the 
Confederate  Government,   is  not  correct  or  accurate;  but   the  only 
question  of  practical  importance,  is,  was  he  correct  in  holding  that 
the    United  States  troops  were  not  to  be  regarded  as  the  public 
enemy,  against  whose  acts  the  plaintiff  in  error  did  not  insure.     If 
he  was  in  error  in  this,  it  was  an  error  affecting  the  merits,  and  a 
new  trial  should  be  granted.     If,  on  the  other  hand,  he  answered 
this  question  correctly,  then  the  error  which  followed  in  giving  a 
definition  of  the  character  of  the  rebellion  —  a  definition  which  was 
unnecessary  —  was  immaterial,   and  could  not  have  prejudiced  the 
plaintiff  in  error.     The  term   "public  enemy,"   or  the   "enemy   of 
the  country,  has,  in  general,  a  technical  legal  meaning.     It  is  under- 
stood to  apply  to  foreign  nations,  with  whom  there  is  open  war,  and 
to  pirates,  who  are  considered  at  war  with  all  mankind;  but  it  does 
not  include  robbers,  thieves,  or  rioters  or  insurgents,  whatever  be 
their  violence."     Story  on  Contr.,  752. 

In  England,  the  term  "public  enemies,"  or  "the  king's  enemies," 
as  applied  to  the  law  of  treason,  has  been  held  not  to  apply  to  insur- 
gents or  rebels,  they  not  being  enemies.  Hawkins'  Pleas  of  the 
Crown,  55. 

It  has  been  held  by  the  Supreme  Court  of  the  United  States,  in 
a  number  of  cases  known  as  the  Prize  Cases,  that  the  late  rebellion 
was  "a  war"  in  the  legal  "sense,  as  contra-distinguished  from  a  mere 
insurrection,  and  that  as  a  consequence  of  this  in  the  conduct  of 
the  war  during  its  pendency,  the  persons  living  upon  either  side  of 
the  line  dividing  the  contending  forces  were  to  be  regarded  as 
enemies  of  the  other,  to  the  extent  to  authorize  the  forfeiture  of  the 
property  of  either  captured  by  the  other  upon  the  high  seas. 

In  the  case  of  Thorington  v.  Smith,  9  Wallace,  1,  Chief  Justice 
Chase  classes  the  Confederate  Government  among  that  class  of  cases 
where  a  foreign  government,  at  war  with  our  own,  for  instance, 
obtains  temporary  possession  of  a  portion  of  our  country,  and  estab- 
lishes their  authority  over  it,  and  enforces  the  same  by  military 
power;  and,  referring  to  the  Confederate  Government,  says:  "Bel- 
ligerent rights  were  conceded  to  it,  and  thereafter  its  territory  held 
to  be  enemy's  territory,  and,  for  most  purposes,  its  inhabitants  held 
to  be  enemies." 

It  is  clear  that,  during  the  war,  the  parties  upon  each  side  treated 
each  other  as  enemies,  and  this  was  justified  by  the  laws  and  usages 
of  war. 

As  an  abstract  proposition,  it  cannot  be  doubted  that  the  United 
States  Government  was  the  rightful  government,  and  that  the  war 
was  rightfully  prosecuted  for  the  enforcement  of  its  laws ;  and  the 
attempted  revolution  being  unsuccessful,  no  portion  of  the  citizens 


carrier's  liability.  407 

were  at  any  time  released  from  their  allegiance  to  the  rightful 
government,  however  they  may  be  excused  or  justified  in  rendering 
obedience  to  the  usurped  government,  in  civil  matters,  so  long  as 
this  obedience  might  have  been  enforced  by  actual  military  power; 
and  we  are  not  to  be  understood  as  announcing  the  proposition  that, 
in  reality,  the  United  States  Government  or  troops  were  the  public 
enemy  of  its  own  citizens  during  the  progress  of  the  war. 

But  in  construing  this  contract,  and  determining  the  rights  and 
liabilities  of  the  parties  themselves,  we  must  give  to  the  term 
"public  enemy,"  or  "enemy  of  the  country,"  the  meaning  that 
attached  to  it  at  the  time  and  place  the  contract  was  made.  We 
have  seen  that  at  the  date  of  this  transaction  both  parties  resided 
within  the  military  lines  of  the  "Confederate  States."  We  have 
also  seen  that  at  that  time,  "for  most  purposes,"  the  people  upon 
each  side  of  the  dividing  line  were  treated  as  the  enemies  of  the 
other.  So  that  the  term  "  public  enemy,"  or  "  enemy  of  the  country," 
as  understood  and  applied  by  the  contracting  parties  at  the  time, 
included  the  troops  of  the  United  States  Government,  and  that  the 
plaintiffs  in  error  are  not,  under  the  circumstances,  to  be  held  as 
insurers  against  loss  that  might  occur  by  the  act  of  the  United 
States  troops. 

Such  was  not  the  legal  import  of  the  contract  they  made,  or  its 
meaning  as  they  then  understood  it. 

It  follows,  therefore,  that  while  in  one  sense  the  proposition  of 
his  Honor  was  correct,  it  was  not  the  proper  instruction  applicable 
to  the  facts  of  the  case.  For  this  error  alone  we  reverse  the  judg- 
ment, and  remand  the  cause  for  a  new  trial. 

There  is  evidence  in  the  record,  upon  which  the  plaintiff  in  error 
might  well  have  been  held  liable  for  their  failure  to  carry  the  goods 
or  return  them  before  the  time  they  are  alleged  to  have  been 
destroyed  by  the  United  States  troops;  but  as  this  was  a  question  of 
fact,  they  were  entitled  to  have  the  case  submitted  to  the  jury  upon 
a  correct  charge.  Reverse  the  judgment. 


c.  Act  of  Shipper. 

CONGAR  v.    CHICAGO,    etc.    R.    CO. 
24  Wis.  154.     1869. 

The  plaintiffs  shipped,  by  defendant's  road,  trees  and  other 
nursery  stock  from  Whitewater,  in  this  State,  directed  to  "Iuka. 
Iowa,"  the  consignees  being  resident  in  a  village  of  that  name  in 
Tama  County,  Iowa.  At  Chicago,  the  goods  were  shipped  by  de- 
fendant's agents,  by  the  Chicago,  Burlington  &  Quincy  Railroad  Com- 


408  CARRIERS   OF   GOODS. 

pany,  and  at  Quincy  were  transferred  to  the  Quincy  &  Missouri  Rail- 
way, by  which  they  were  transported  to  Iuka,  in  Keokuk  County , 
Iowa.  In  consequence  of  this  mistake,  they  are  alleged  to  have 
become  worthless,  and  this  action  was  brought  to  recover  damages. 
Certain  averments  of  the  complaint  and  answer  will  be  found  recited 
in  the  second  paragraph  of  the  opinion,  infra.  A  demurrer  to  the 
answer  was  sustained,  and  defendant  appealed. 

Dixon,  Ch.  J.  The  decision  of  the  court  below,  as  shown  by  the 
written  opinion  of  the  learned  judge  found  in  the  printed  case, 
turned  upon  the  point  that,  for  the  purpose  of  charging  the  company 
with  negligence  in  shipping  the  goods  over  the  wrong  road,  notice 
to  any  of  its  agents  was  notice  to  the  company.  In  other  words,  the 
court  held,  that  the  knowledge  of  the  agents  residing  in  the  State 
of  Iowa,  and  transacting  the  business  of  the  company  there,  of  a 
place  in  that  State  named  Iuka,  and  that  goods  destined  for  that 
place  were  to  be  deposited  at  the  nearest  station  on  the  line  of  the 
company's  road,  called  Toledo,  was  the  knowledge  of  the  company, 
so  as  to  make  the  company  responsible  for  any  injury  resulting  from 
the  mistake  of  its  agents  residing  and  transacting  its  business  at 
the  city  of  Chicago,  in  the.  State  of  Illinois,  in  forwarding  the  goods 
from  the  latter  place  by  another  railroad,  instead  of  over  the  com- 
pany's own  road,  although  such  mistake  occurred  without  any  negli- 
gence whatever  on  the  part  of  the  agents  making  it,  but  after  they 
had  taken  reasonable  and  proper  care  to  ascertain  the  route  by  which 
the  goods  should  be  forwarded,  and  had  forwarded  them  in  accord- 
ance with  the  information  so  obtained.  This,  we  think,  was  an 
erroneous  application  of  the  doctrine  that  notice  to  the  agent  is 
notice  to  the  principal.  Such  notice,  to  be  binding  upon  the  prin- 
cipal, must  be  notice  to  the  agent  when  acting  within  the  scope  of 
his  agency,  and  must  relate  to  the  business,  or,  as  most  of  the 
authorities  have  it,  the  very  business,  in  which  he  is  engaged,  or  is 
represented  as  being  engaged,  by  authority  of  his  principal.  It 
must  be  the  knowledge  of  the  agent  coming  to  him  while  he  is  con- 
cerned for  the  principal,  and  in  the  course  of  the  very  transaction 
which  is  the  subject  of  the  suit,  or  so  near  before  it  that  the  agent 
must  be  presumed  to  recollect  it.  Story  on  Agency,  §  40,  and  .2 
Kent's  Com.  630,  and  note,  and  cases  cited.  Notice,  therefore,  to 
the  agents  in  Iowa,  distant  some  two  or  three  hundred  miles  from 
the  city  of  Chicago,  who  have  distinct  duties  to  perform,  and  were 
not  at  all  concerned  in  the  business  of  forwarding  the  goods  from 
Chicago,  was  not  such  notice  as  will  bind  the  company  in  relation 
to  that  business,  the  same  having  been  transacted  by  other  agents, 
who  had  no  such  notice.  This  seems  very  clear  when  we  consider 
the  reason  and  ground  upon  which  this  doctrine  of  constructive 
notice  rests.  The  principal  is  chargeable  with  the  knowledge  of  his 
agent,  because  the  agent  is  substituted  in  his  place,  and  represents 
him   in  the  particular  transaction;    and  it  would  seem   to    be   an 


carrier's  liability.  409 

obvious  perversion  of  the  doctrine,  and  to  lead  to  most  injurious 
results,  if,  in  the  same  transaction,  the  principal  were  likewise  to 
be  charged  with  the  knowledge  of  other  agents,  not  engaged  in  it, 
and  to  whom  he  had  delegated  no  authority  with  respect  to  it,  but 
who  were  employed  by  him  in  other  and  wholly  different  departments 
of  his  business. 

The  complaint  charges  that  the  place  called  Iuka,  in  Tama  County, 
Iowa,  to  which  the  goods  were  intended  to  be  sent,  was  known  to 
the  agents  of  the  company  residing  and  doing  business  along  the 
line  of  its  road  in  the  State  of  Iowa,  and  that  the  station  where  such 
goods  were  to  be  deposited  was  Toledo.  The  answer  alleges  that 
the  same  place  was  unknown  to  the  officers  and  agents  of  the  com- 
pany at  Chicago;  that  they  were  informed  that  said  Iuka  was  situ- 
ated in  Keokuk  County,  in  the  State  of  Iowa,  and  near  the  line  of 
the  Burlington  &  Missouri  Railroad;  that  they  examined  a  map  of 
Iowa  used  by  shippers,  and  kept  in  the  office  of  defendant,  for  the 
purpose  of  ascertaining  where  said  Iuka  was  situated;  and  that  said 
map  represented  said  Iuka  as  being  in  Keokuk  County  aforesaid. 
The  answer  further  alleges  that  the  goods  were  directed  to  "  C.  E. 
Cox,  Iuka,  Iowa,"  without  giving  the  name  of  the  county,  or  other 
directions  to  indicate  to  what  part  of  the  State,  or  to  what  railroad 
station  in  the  State,  the  same  were  consigned,  or  by  what  line  of 
railroad  the  same  were  to  be  forwarded.  It  appears  to  this  court, 
therefore,  upon  the  pleadings  that  no  cause  of  action  for  negligence 
is  stated  against  the  company,  but  that,  if  there  was  negligence  on 
the  part  of  any  one,  it  was  upon  the  part  of  the  plaintiff  in  not  hav- 
ing marked  the  goods  with  the  name  of  the  county,  or  otherwise 
with  that  of  the  railway  station,  or  with  the  line  of  road  by  which 
they  were  to  be  sent.  The  demurrer  to  the  answer  should,  there- 
fore, have  been  overruled;  and  the  order  sustaining  it  must  be 
reversed,  and  the  cause  remanded  for  further  proceedings,  according 
to  law. 


MILTIMORE  v.   CHICAGO,  etc.  R.  CO. 
37  Wis.  190.     1875. 

Action  for  damages  alleged  to  have  been  caused  by  the  negligence 
of  the  defendant  company  in  transporting  a  wagon  for  the  plaintiffs, 
on  its  cars  from-  Janesville  to  Chicago.  The  answer  denied  negli- 
gence, and  alleged  a  special  contract  that  the  wagon  should  be  trans- 
ported wholly  at  the  owners'  risk  in  respect  to  the  cause  from  which 
the  damage  resulted. 

The  evidence  showed  the  facts  to  be,  that  the  plaintiffs,  by  one 
Ripley,  their  agent,  applied  for  transportation  of  the  wagon  in  an 
open  or  platform  car,  as  they  desired  it  shipped  without  taking  it 


410  CARRIERS    OF    GOODS. 

apart;  that  the  price  was  agreed  upon,  and  the  company  agreed  that 
it  should  be  sent  on  the  train  which  was  to  leave  the  same  evening: 
at  9.15  o'clock,  provided  it  was  received  in  time,  and  that,  if  there 
was  a  flat  car  in  the  yard,  it  should  be  placed  where  he  could  run 
it  on ;  that  Ripley  applied  to  the  employee  of  the  company,  whose 
duty  was  to  make  up  trains,  for  a  car,  who  informed  him  that  they 
would-  have  a  car  placed  for  him,  and,  if  he  got  the  wagon  there 
before  5  o'clock,  they  would  help  him  load  the  wagon  upon  the  car; 
that  he  took  the  wagon  up  to  be  loaded  a  little  after  5  o'clock.  The 
employees  of  the  plaintiff  loaded  it  upon  the  car.  Two  of  the 
employees  of  the  company  went  back,  at  Ripley's  request,  after 
hours,  and  helped  load  it;  and  one  suggested  that  he  take  off  the 
wheels,  but  Ripley  said  he  could  fasten  them  so  they  would  not  roll, 
and  tied  the  wheels,  and  nailed  down  blocks  upon  the  floor  to  keep 
it  from  rolling.  The  company  gave  a  receipt  for  the  wagon  which 
contained  the  agreement  that  the  company  should  not  be  "  respon- 
sible for  loss  or  damage  to  any  .  .  .  article  whose  bulk  rendered  it 
necessary  to  transport  in  open  cars,  .  .  .  unless  it  can  be  shown 
that  such  damage  or  loss  occurred  through  negligence  or  default  of 
the  agents  of  the  company."  The  train,  with  the  car  containing  the 
wagon,  left  for  Chicago  that  evening  while  a  high  wind  was  prevail- 
ing. The  wagon,  being  in  the  condition  in  which  the  plaintiff's 
agent  had  left  it,  was  blown  off  from  the  car  in  transit,  and  injured. 

The  issue  was  tried  by  the  court,  who  found  that  the  defendant 
was  negligent  in  removing  the  wagon,  during  the  prevalence  of  the 
high  wind,  without  taking  precaution  to  secure  it  to  the  car,  so  as 
to  prevent  it  from  being  blown  off;  and  that  by  reason  of  such 
negligence  the  injury  occurred.  From  judgment  on  the  finding  the 
defendant  appealed. 

Cole,  J.  The  learned  circuit  judge  found  from  the  evidence  that 
the  defendant  company  was  guilty  of  negligence  in  removing  the 
wagon  from  Janesville,  the  place  of  shipment,  and  in  carrying  it 
forward  toward  Chicago,  its  point  of  destination,  without  taking 
the  precaution  to  secure  it  to  the  car,  so  as  to  prevent  it  from  being 
thrown  from  the  car  by  the  violence  of  the  wind  prevailing  at  the 
time.  Upon  this  ground  the  company  was  held  liable  for  the  injury 
to  the  wagon  upon  being  blown  off  the  car. 

We  feel  constrained  to  dissent  from  this  view  of  the  case.  The 
evidence  shows,  beyond  all  doubt  or  question,  that  the  plaintiffs 
themselves  chose  an  open  or,  platform  car  upon  which  to  transport 
the  wagon  to  Chicago.  They  did  not  wish  to  have- the  wagon  taken 
apart  so  that  it  could  be  transported  in  a  box  car,  but  chose  the 
platform  car,  upon  which  the  wagon  could  be  carried  standing,  as 
the  cheaper  mode  of  conveyance.  The  company  certainly  was  not 
at  fault  for  this  manner  of  transporting  the  wagon.  The  evidence 
clearly  shows  that  the  plaintiffs  assumed  the  labor  and  responsibility 
of  loading  the  wagon.     Ripley  was  told  when  he  bargained  for  the 


CAREIEU'S    LIABILITY.  411 

car,  by  the  agents  of  the  company,  that  if  he  got  the  wagon  to  the 
cars  before  five  o'clock,  they  would  help  him  load  it,  but  if  he  got 
there  after  that  time,  he  would  find  his  car  by  the  freight-house 
platform,  upon  which  to  place  the  wagon.     He  got  to  the  freight 
depot  late,  but  met  a  couple  of  the  workmen  coming  away,   who 
went  back  and  aided  him  in  loading  the  wagon.     But  Ripley  him- 
self took  the  entire  charge  and  responsibility  of  loading  the  wag< 
as  it  was  understood  he  would  do,  and  of  securing  it  to  the  car. 
Whatever  means  and  appliances  he  deemed  necessary  and  propel  to 
be  used  to  secure  the  property  while  in  transit,  he  used,  or  might 
have  used,  without  the  control  or  interference  of  any  one.     The  state 
of  the  weather,  the  nature  of  the  property,  its  exposure  to  violent 
winds,  he  should  have  considered  and  provided  for.     It  seems  to  us 
there  is  no  reason  for  saying  that  the  company  was  guilty  of  negli- 
gence, and  did  not  take  due  precautions   to  secure   the  wagon,  in 
view  of  the  established  fact  that  the  plaintiffs  undertook  to  attend 
to  these  matters  themselves.     The  company  received  the  property 
for  transportation,  loaded  and  secured  as  the  plaintiffs   saw  fit  to 
load  and  secure  it;  and  why  should  negligence  be  imputed  to  it  for 
not  taking  precautions  to  guard  against  the  plaintiffs'  want  of  care? 
It  is  said  the  company  was  exceedingly  careless  and  negligent  in 
attempting  to  carry  this  covered  wagon  at  the  time  and  in  the  man- 
ner it  did,  without  making  any  effort  to  attach  the  same  more  firmly 
to  the  car.     But  the  obvious  answer  to  this   argument   is,  that  the 
plaintiffs  themselves  assumed  the  risk  and  responsibility  of  loading 
and  securing  the  wagon,  and  the  company  was  not  called  upon  to 
see  that  they  had  properly  performed  their  duty   in  that  regard. 
The  plaintiffs  had  ordered  that  the  wagon  should  be  sent  by  the 
night  train,  and  the  agents  of  the  company  had  agreed  to  take  it,  if 
loaded.     According  to  the  testimony  of  Carter,  one  of  the  plaintiffs, 
the  wind  blew  very  hard  between  eight  and  nine,  while   the  train 
on  which  the  wagon  was  to  go  did  not  leave  Janesville  until  9.15. 
There  was  ample  time  to  countermand  the  order  to  ship  the  wagon 
that  night,  or  to  see  that   it  was   so  secured  that  it  could  not  be 
blown  from  the  car  by  the  violence  of  the  wind.     It  seems  to  us 
that  whatever  negligence  there  was  in  securing  the  wagon  must  be 
imputed  to  the  plaintiffs.     The  case  is  not  distinguishable  in  prin- 
ciple from  Betts  v.  The  Farmers'  Loan  &  Trust  Company.  21  Wis. 
81,  and  the  decision  there    made    is  controlling  here.     There  the 
owner  of  cattle  shipped  by  railroad,  who  had  undertaken  to  put 
them   in  the  car,  knew  that  the  door  of  the  car  was  in  an  unsafe 
condition,  but  neglected  to  inform  the  station  agent,  who  was  igno- 
rant  of  the  fact;  and   it   was   held   that  he  could   not  recover  for 
injuries  received  by  the  cattle  in   escaping  from  the  car  in  conse- 
quence of  such  defect.     So,  under  the  circumstances  of  this  case,  it 
seems  to  us,  the  company  was  not  obliged  to  take  further  precau« 
tions  to  fasten  or  secure  the  wagon  on  the  car.     The  plaintiffs  had 


412  CARRIERS    OF    GOODS. 

taken  upon  themselves  that  care  and  responsibility,  and  if  they 
failed  properly  to  secure  it  against  the  violence  of  the  wind,  and  it 
was  injured,  the  loss  is  attributable  to  their  fault. 

It  follows  from  these  views  that  the  judgment  of  the  Circuit  Court 
must  be  reversed,  and  the  case  remanded  with  directions  to  dismiss 
the  complaint. 


WHITE  v.    WINNISIMMET   CO. 
7  Cush.  (Mass.)  155.     1851. 

This  was  an  action  on  the  case  against  the  proprietors  of  a  ferry 
for  an  injury  to  the  plaintiff's  property,  occasioned  by  his  horse  and 
loaded  wagon  falling  overboard  from  one  of  the  defendants'  boats, 
while  passing  from  Boston  to  Chelsea. 

Dewey,  J.  To  a  certain  extent,  persons  keeping  and  maintaining 
a  ferry  are  common  carriers,  and  subject  to  the  liabilities  attaching 
to  common  carriers.  It  would  be  so,  if  a  bale  of  goods  or  an  article 
of  merchandise  was  delivered  by  the  owner  to  the  agent  of  a  ferry 
company,  to  be  carried  from  one  place  to  another  for  hire.  Upon 
receiving  such  goods  for  transportation,  the  ferry  company  stipulate 
to  carry  them  safely,  and  subject  themselves  to  strict  liability  for 
the  safe  carriage  and  delivery  of  such  goods ;  being  only  exempted 
for  losses  occasioned  by  those  acts,  which  are  denominated  "acts  of 
God,  or  of  a  public  enemy."  The  principle  above  stated  would 
embrace  the  case  of  a  horse  and  wagon  received  by  a  ferryman  to 
be  transported  by  him  on  a  ferry-boat,  the  ferryman  accepting  the 
exclusive  custody  of  the  same  for  such  purpose,  and  the  owner 
having,  for  the  time  being,  surrendered  the  possession  to  the 
ferryman. 

But  the  traveller  uses  the  ferry-boat  as  he  would  a  toll  bridge, 
personally  driving  his  horse  upon  the  boat,  selecting  his  position  on 
the  same,  and  himself  remaining  on  the  boat;  neither  putting  his 
horse  into  the  care  and  custody  of  the  ferryman,  nor  signifying  to 
him  or  his  servants  any  wish  or  purpose  to  do  so;  and  the  only 
possession  and  custody,  by  the  ferryman,  of  the  horse  and  vehicle 
to  which  he  is  attached,  is  that  which  necessarily  results  from  the 
traveller's  driving  his  horse  and  wagon,  or  other  vehicle,  on  board 
the  boat,  and  paying  the  ordinary  toll  for  a  passage;  in  such  case, 
the  ferry  company  would  not  be  chargeable  with  the  full  liabilities 
of  common  carriers  of  merchandise.  The  liability  in  this  case  would 
be  one  of  a  different  character;  and  if  the  proprietors  of  the  ferry 
were  chargeable  for  loss  or  damage  to  the  property,  it  would  be 
upon  different  principles.  In  reference  to  persons  thus  using  the 
ferry,  the  company  have  responsible  duties  to  perform;  the  neglect 
of  which  may  charge  them  for  the  loss  of  goods  and  property  placed 


CARRIERS    LIABILITY.  41.] 

on  board  their  boat,  when  the  loss  has  been  occasioned  by  their 
default.  It  is  the  duty  of  a  ferry  company  to  provide  a  good  ami 
safe  boat,  suitable  for  the  business  in  which  they  are  engaged;  and 
they  are  required  to  have  all  suitable  and  requisite  accommodations 
for  the  entry  upon,  and  safe  transportation  while  on  board,  and  the 
departure  from  the  boat,  of  all  horses  and  vehicles  passing  over 
such  ferry.  They  are  required  to  be  provided  with  all  proper  and 
necessary  servants  and  agents  requisite  for  the  safe  and  proper  con- 
ducting of  the  business  of  the  ferry,  and  with  all  proper  and  suit- 
able guards  and  barriers  on  the  boat,  for  the  security  of  the  propertv 
thus  carried  on  the  boat,  and  to  prevent  damage  from  such  casualties 
as  it  would  naturally  be  exposed  to,  though  there  was  ordinary  care 
on  the  part  of  the  traveller.  For  neglect  of  duty  in  these  respects 
they  may  be  charged,  but  the  liability  is  different  from  that  of  com- 
mon carriers.  The  case  of  such  a  traveller,  though  not  entirely 
similar,  much  more  resembles  that  of  a  traveller  upon  a  toll  bridge 
or  turnpike  road;  who,  while  he  uses  the  easement  of  another,  yet 
retains  the  possession  and  custody  of  his  horse  and  wagon.  The 
party,  thus  driving  his  own  horse  upon  the  boat,  and  retaining  the 
custody  of  him,  is  bound,  like  the  traveller  on  the  toll  bridge  or 
the  turnpike  road,  to  use  ordinary  care  and  oversight  in  respect  to 
his  horse  while  on  the  boat,  and  if  he  does  not  use  such  ordinary 
care  and  oversight  in  respect  to  him,  and  for  want  thereof  the  horse 
leaps  overboard,  or  receives  on  the  boat  some  injury,  all  which 
might  and  would  have  been  avoided,  if  the  party  had  used  proper 
care  and  diligence,  such  party  must  himself  bear  the  loss  which  has 
thus  been  occasioned  by  his  own  neglect. 

In  deciding  upon  the  nature  and  extent  of  the  liability  of  ferry- 
men, and  how  far  they  are  to  be  charged  as  common  carriers,  regard 
is  to  be  had  to  the  nature  of  the  employment,  and  especially  to  the 
thing  to  be  transported.  This  principle  is  practically  applied  in 
the  well-known  distinction  relating  to  the  liability  of  the  proprietors 
of  stagecoaches  and  other  vehicles,  as  to  the  carriage  of  persons. 
No  person  thus  carried  in  a  public  vehicle  can  recover  damages  for 
an  injury  to  his  person,  if  his  own  want  of  ordinary  care  contributed 
to  the  injury.  Such  carriers  are  not  common  carriers,  with  all  the 
liabilities  as  such.  One  reason  for  the  distinction  is,  that  persons 
thus  carried  are  not  and  cannot  be  placed  under  the  same  custodi- 
an d  control  as  bales  of  goods.  Being  intelligent  beings,  and  having 
the  power  of  locomotion,  and  having  the  opportunity  on  the  one 
hand  by  their  own  voluntary  acts,  of  exposing  themselves  to  greater 
hazard,  and  on  the  other  of  guarding  to  some  extent  against  perils, 
the  law  properly  requires  a  person  thus  carried  to  exercise  ordinary 
care  and  vigilance  to  avoid  exposure  to  danger;  and  if  this  is  not 
exercised,  and  an  injury  is  sustained,  the  carrier  is  not  liable 
therefor. 

The  same   principle    is    also   further   illustrated   in  the  various 


414  CARRIERS   OF    GOODS. 

decisions  of  the  courts,  in  cases  of  actions  instituted  for  the  purpose 
of  charging  the  carriers  of  slaves  as  common  carriers  of  merchandise. 
It  was  successfully,  and  certainly  most  properly  contended,  as  to 
the  carriage  of  slaves,  that  in  those  States  where  slavery  is  allowed 
by  law,  and  where  slaves  are  to  some  purposes  treated  as  chattels, 
yet  as  they  are  human  beings,  and  cannot  and  ought  not  to  be  stored 
away  and  confined  like  bales  of  goods,  and  placed  under  the  abso- 
lute control  of  the  carrier,  the  principle  of  the  common  law  appli- 
cable to  common  carriers  of  merchandise  could  not  be  applied  to  the 
carriers  of  slaves.  This  was  so  held  in  Boyce  v.  Anderson,  2  Pet. 
150;  Clarke.  McDonald,  4  McCord,  223. 

As  having  some  bearing  also  on  this  question,  we  may  allude  to 
the  modification  of  the  principle  of  general  liability  as  common 
carriers,  in  those  cases  where  the  owner  of  goods  accompanies  them 
in  their  transit,  retaining  a  certain  control  over  them,  as  in  Brind 
v.  Dale,  8  Car.  &  P.  207,  where  it  was  held,  that  if  the  owner  of 
goods  accompanies  them  to  take  care  of  them,  and  is  himself  guilty 
of  negligence,  he  is  not  entitled  to  recover.  This  case  also  affirms, 
as  a  rule  of  law,  a  principle  often  found  elsewhere,  and  which  bears 
directly,  as  we  think,  upon  the  case  before  us,  "that  a  party  cannot 
recover,  if  his  own  negligence  was  as  much  the  cause  of  the  loss  as 
that  of  the  defendant." 

Thus  we  perceive  that  a  modification  of  the  liability  attached  to 
common  carriers  occurs,  as  the  nature  of  the  thing  to  be  carried,  and 
the  extent  of  the  custody  and  control  over  it,  by  the  carrier,  varies. 
We  think  that  the  propriety  of  such  a  modification  of  what  is  cer- 
tainly a  very  stringent  rule  of  liability,  in  reference  to  cases  where 
the  entire  custody  and  control  of  the  property  is  not  with  the 
carrier,  is  quite  obvious. 

The  case  of  a  traveller  conveyed  by  means  of  a  ferry-boat,  where 
the  traveller  enters  upon  the  boat  driving  his  horse  attached  to  a 
wagon,  or  other  vehicle,  selecting  his  own  place  upon  the  boat,  and 
continuing  to  retain  under  his  own  custody  his  horse  and  wagon, 
neither  committing  it  to  the  care  of  the  ferryman  or  his  servants, 
or  signifying  any  wish  or  purpose  so  to  do,  presents  another  instance 
where  the  liability  of  the  carrier  must  be  considered  as  of  a  restricted 
character;  and,  as  in  the  case  of  a  carrier  of  persons,  duties  devolve 
upon  the  traveller,  and  he  is  bound  to  use  ordinary  care  and  dili- 
gence in  respect  to  his  horse  and  vehicle,  in  order  to  prevent,  as  far 
as  he  can,  by  such  care,  any  injury  occurring  from  fright,  or  from 
other  cause  immediately  resulting  from  the  movements  of  the  horse. 
When  such  horse  or  other  animal  is  not  surrendered  into  the  custody 
of  the  ferryman,  the  driver  is  bound  to  do  all  that  can  be  effected  by 
reasonable  diligence  and  supervision,  to  prevent  a  loss  of  his  prop- 
erty occasioned  by  his  horse  becoming  restless  or  affrighted.  If  the 
traveller  wholly  neglects  his  duty  in  this  respect,  leaving  his  horse 
without  any  oversight,  and  the  horse,  without  the  fault  of  the  ferry- 


cakrier's.  liability.  4 1 .', 

man,  becomes  affrighted  and  throws  himself  and  the  vehicle  to 
which  he  is  attached  overboard,  when,  by  proper  care  and  attention 
of  the  driver,  this  casualty  would  in  all  reasonable  probability  have 
been  avoided,  the  loss  must  fall  upon  the  traveller. 

This  case  is  to  be  decided  by  the  application  of  these  principles  to 
the  agreed  facts  stated  by  the  parties. 

These,  briefly  stated,  are  as  follows:  The  defendants  keep  and 
maintain  a  ferry  between  Boston  and  Chelsea,  and  the  plaintiff, 
travelling  with  his  horse  and  wagon  loaded  with  merchandise,  drove 
the  horse  and  wagon  upon  the  ferry-boat  of  the  defendants,  pa\  rag 
the  usual  toll  for  his  horse  and  wagon.  The  plaintiff  did  not  occupy 
the  place  assigned  him  by  the  agent,  but  selected  his  own  position ; 
no  further  objection  being  made  after  he  had  taken  it.  He  did  not 
commit  the  charge  of  the  horse  and  wagon  to  the  particular  custody 
of  the  servant  of  the  defendants,  or  express  any  wish  or  purpose  to 
do  so.  The  horse  had  not  been  accustomed  to  pass  over  upon  this 
ferry-boat.  The  plaintiff  remained  on  board  the  boat,  but  left  his 
horse  and  was  at  some  distance  from  him  Avith  no  one  to  have  an 
oversight  over  him,  or  to  restrain  him,  if  frightened.  In  this  state 
of  things,  the  horse  became  frightened  at  the  ringing  of  the  bell,  as 
the  boat  approached  the  shore,  and  sprang  forward,  struck  the  chain 
thrown  across  the  forward  end  of  the  boat,  with  such  force  as  to 
cause  the  hook  connected  with  it  to  give  way,  and  thereupon  the 
horse  and  wagon  went  overboard.  The  horse  was  drowned,  and  the 
merchandise  in  the  wagon  greatly  injured. 

The  facts,  as  stated,  also  show  that  the  iron  hook,  by  which  the 
chain  was  fastened,  was  defective  and  insufficient  in  strength  for 
the  purposes  it  was  designed  to  answer;  though  the  defendants  and 
their  agent  had  no  knowledge  of  that  fact.  This  defect  was  one 
for  which  the  defendants  were  answerable,  and  which,  under  other 
circumstances,  might  have  charged  them  with  the  loss.  But,  unfor- 
tunately for  the  plaintiff,  the  facts  also  show  a  want  of  ordinary 
care  and  diligence  on  his  part,  in  the  oversight  and  care  of  his 
horse,  and  that,  by  want  of  such  care  and  oversight,  this  loss  was 
in  all  probability  occasioned. 

Every  person  is  bound  to  use  reasonable  care  to  prevent  damage 
to  his  property,  and  if  the  injury  is  attributable  to  himself  in  part, 
he  cannot  recover,  although  there  may  have  been  negligence  on  the 
part  of  the  other  party  also.  This  doctrine  is  fully  sustained  by 
the  case  of  Smith  v.  Smith,  2  Pick.  621,  and  by  2  Greenl.  on  Ev. 
§§  220,  473,  and  cases  there  cited.  The  court  are  of  opinion  that, 
upon  this  ground,  there  must  be 

Judgment  for  the  defendants. 


416  CARKIEKS   OF   GOODS, 


HAET   v.   CHICAGO,  etc.  R.  CO. 
69  Iowa,  485.     1886. 

On  the  eighteenth  day  of  April,  1883,  plaintiff  delivered  to 
defendant,  at  the  city  of  Des  Moines,  one  car-load  of  property, 
which  the  latter  undertook  to  transport  to  the  town  of  Miller,  in 
Dakota  Territory.  The  property  shipped  in  the  car  consisted  of 
six  horses,  two  wagons,  three  sets  of  harness,  a  quantity  of  grain,  a 
lot  of  household  and  kitchen  furniture,  and  personal  effects.  The 
contract  under  which  the  shipment  was  made  provided  that  the 
horses  should  be  loaded,  fed,  watered,  and  cared  for  by  the  shipper 
at  his  own  expense,  and  that  one  man  in  charge  of  them  would 
be  passed  free  on  the  train  that  carried  the  car.  It  also  provided 
that  no  liability  would  be  assumed  by  the  defendant  on  the  horses 
for  more  than  f  100  each,  unless  by  special  agreement  noted  on  the 
contract,  and  no  such  special  agreement  was  noted  on  the  coDtract. 
Plaintiff  placed  a  man  in  charge  of  the  horses,  and  he  was  permitted 
to,  and  did,  ride  in  the  car  with  them.  When  the  train  reached 
Bancroft,  in  this  State,  it  was  discovered  that  the  hay  which  was 
carried  in  the  car  to  be  fed  to  the  horses  on  the  trip  was  on  fire. 
The  car  was  broken  open,  and  the  man  in  charge  of  the  horses  was 
found  asleep.  The  train  men  and  others  present  attempted  to  ex- 
tinguish the  fire,  but  before  they  succeeded  in  putting  it  out  the 
horses  were  killed,  and  the  other  property  destroyed.  This  action 
was  brought  to  recover  the  value  of  the  property.  There  was  a 
verdict  and  judgment  for  plaintiff,  and  defendant  appeals. 

Reed,  J.  1.  There  was  evidence  which  tended  to  prove  that  the 
fire  was  communicated  to  the  car  from  a  lantern  which  the  man  in 
charge  of  the  horses  had  taken  into  the  car.  This  lantern  was  fur- 
nished by  plaintiff,  and  was  taken  into  the  car  by  his  direction. 
Defendant  asked  the  Circuit  Court  to  instruct  the  jury  that  if  the  fire 
which  destroyed  the  property  was  caused  by  a  lighted  lantern  in  the 
sole  use  and  control  of  plaintiff's  servant,  who  was  in  the  car  in 
charge  of  the  property,  plaintiff  could  not  recover.  The  court 
refused  to  give  this  instruction,  but  told  the  jury  that,  if  the  fire 
was  occasioned  by  the  fault  or  negligence  of  plaintiff's  servant,  who 
was  in  charge  of  the  property,  there  could  be  no  recovery.  The  jury 
might  have  found  from  the  evidence  that  the  fire  was  communicated 
to  the  hay  from  the  lantern,  but  that  plaintiff's  servant  was  not 
guilty  of  any  negligence  in  the  matter.  The  question  presented  by 
this  assignment  of  error,  then,  is  whether  a  common  carrier  is 
responsible  for  the  injury  or  destruction  of  property  while  it  is  in 
the  course  of  transportation,  when  the  injury  is  caused  by  some  act 


carrier's  liability.  J 17 

of  the  owner,  but  which  is  unattended  with  any  negligence  on  the 
part  of  the  owner. 

The  carrier  is  held  to  be  an  insurer  of  the  safety  of  the  prop- 
erty while  he  has  it  in  possession  as  a  carrier.  His  undertaking 
for  the  care  and  safety  of  the  property  arises  by  the  implication 
of  law  out  of  the  contract  for  its  carriage.  The  rule  which  holds 
hirn  to  be  an  insurer  of  the  property  is  founded  upon  considera- 
tion of  public  policy.  The  reason  of  the  rule  is  that,  as  the  car- 
rier ordinarily  has  the  absolute  possession  and  control  of  the 
property  while  it  is  in  the  course  of  shipment,  he  has  the  most 
tempting  opportunities  for  embezzlement  or  for  fraudulent  collusion 
with  others.  Therefore,  if  it  is  lost  or  destroyed  while  in  his  cus- 
tody, the  policy  of  the  law  imposes  the  loss  upon  him.  Coggs  v. 
Bernard,  2  Ld.  Kaym.  909;  Forward  v.  Pittard,  1  Dura.  &  E.  27 
[385]  ;  Riley  v.  Horne,  5  Bing.  217  [461]  ;  Thomas  v.  Railway  Co., 
10  Mete.  472 ;  Roberts  v.  Turner,  12  Johns.  232  [320]  ;  Moses  v. 
Railway  Co.,  24  N.  H.  71;  Rixford  v.  Smith,  52  id.  355.  His 
undertaking  for  the  safety  of  the  property,  however,  is  not  absolute. 
He  has  never  been  held  to  be  an  insurer  against  injuries  occasioned 
by  the  act  of  God,  or  the  public  enemy,  aud  there  is  no  reason  why 
he  should  be;  and  it  is  equally  clear,  we  think,  that  there  is  no 
consideration  of  policy  which  demands  that  he  should  be  held  to 
account  to  the  owner  for  an  injury  which  is  occasioned  by  the 
owner's  own  act;  and  whether  the  act  of  the  owner  by  which  the 
injury  was  caused  amounted  to  negligence  is  immaterial  also.  If 
the  immediate  cause  of  the  loss  was  the  act  of  the  owner,  as  between 
the  parties,  absolute  justice  demands  that  the  loss  should  fall  upon 
him,  rather  than  upon  the  one  who  has  been  guilty  of  no  wrong; 
and  it  can  make  no  difference  that  the  act  cannot  be  said  to  be  either 
wrongful  or  negligent.  If,  then,  the  fire  which  occasioned  the  loss 
in  question  was  ignited  by  the  lantern  which  plaintiff's  servant,  by 
his  direction,  took  into  the  car,  and  which,  at  the  time,  was  in  the 
exclusive  control  and  care  of  the  servant,  defendant  is  not  liable, 
and  the  question  whether  the  servant  handled  it  carefully  or  other- 
wise is  not  material.  This  view  is  abundantly  sustained  by  the 
authorities.  See  Hutch.  Carr.,  §  216,  and  cases  cited  in  the  note; 
also  Lawson  Carr.  §§  19,  23. 

[The  other  paragraphs  of  the  opinion  relate  to  the  validity  of  a 
contract  purporting  to  limit  defendant's  liability.  The  Court  holds 
that  in  this  respect  there  was  no  error.] 

The  judgment  of  the  Circuit  Court  will  be  Reversed. 


418  CAEKIEKS    OF    GOODS. 

d.    Nature  of  goods. 

CLARKE  v.  ROCHESTER,  etc.    R.    CO. 

14  N.  Y.  571.     1856. 

The  action  was  brought  in  the  Supreme  Court,  to  recover  damages 
for  the  loss  of  a  horse,  by  means  of  the  alleged  negligence  of  the  de- 
fendants as  common  carriers.  On  the  trial  before  W.  F.  Allen,  J., 
at  the  Oneida  Circuit,  in  October,  1853,  it  appeared  that  the  plaintiffs 
embarked  four  horses  on  one  of  the  defendants'  cars,  at  Rochester, 
to  be  carried,  for  hire,  eastward  the  whole  length  of  the  defendants' 
road,  and  beyond,  and  that  when  the  train  arrived  at  Auburn  it  was 
found  that  one  of  them  was  dead.  This  horse  had  a  halter  around 
his  head  and  nose,  which  was  tied  to  a  staple  driven  into  the  side  of 
the  car.  When  found,  he  was  lying  upon  his  side,  his  head  still 
held  up  by  the  halter,  and  blood  was  running  from  his  nostrils. 

On  the  part  of  the  defence  it  was  shown  that  one  of  the  plaintiffs 
was  present  when  the  horses  were  put  into  the  car,  and  assisted  in 
fastening  the  one  which  was  killed.  It  appeared  that  one  of  the 
plaintiffs  was  allowed,  in  the  bargain  for  the  carriage,  a  passage  for 
himself  on  the  train  which  carried  the  horses,  there  being  a  passen- 
ger car  attached  to  that  train,  but  that  he  in  fact  took  passage  in  a 
passenger  train  of  the  defendants,  which  started  at  a  later  hour,  and 
which  passed  the  cattle  train  before  it  reached  Auburn.  There  was 
evidence  pro  and  con,  as  to  whether  this  car  was  a  suitable  one  for 
the  transportation  of  horses;  the  plaintiffs'  witnesses  testify  that  it 
was  too  low,  and  those  of  the  defendants  that  it  was  one  of  the- kind 
commonly  used  for  carrying  horses. 

The  defendants'  counsel  moved  for  a  nonsuit,  on  the  ground  that 
the  defendants  were  not  responsible  for  the  class  of  injuries  which 
result,  wholly  or  in  part,  from  the  conduct  of  animals  intrusted  to 
them  to  carry.  They  also  contended  that  it  was  the  duty  of  the 
plaintiff,  under  the  facts  proved,  to  have  gone  in  the  tram  with  the 
horses  and  to  have  taken  care  of  them,  and  that  the  defendants  duty 
was  limited  to  transporting  the  car  which  contained  them  in  safety. 
The  motion  was  denied,  and  the  defendants  excepted. 

The  judge  left  it  to  the  jury  to  determine  whether,  by  the  con- 
tract, the  plaintiff  was  to  go  with  the  horses  and  take  care  of  them, 
stating  that  in  that  case  the  defendants  were  not  responsible.  He 
charged  that,  if  such  was  not  the  contract,  the  defendants  were 
responsible,  unless  the  injurv  was  received  by  a  danger  incident  to 
this  mode  of  carriage  of  this  species  of  property,  and  which  the 
defendants  could  not,  bv  the  exercise  of  diligence  and  care,  prevent, 
or  by  inevitable  accident;  that,  in  the  absence  of  any  agreement  to 


CAREIEES    LIABILITY. 


the  contrary,  it  was  the  business  of  the  defendants  to  provide  a  i 
son  to  look  after  the  horses  on  their  passage,  if  their  safety  required 
such  oversight.     The  defendants'  counsel  excepted,  and  then 
a  verdict  for  the  plaintiffs.     The  judgment  having  been  affirmed  at 
a  general  term  in  the  fifth  district,  the  defendants  appeal 

Dkxio,  C.  J.  The  fact  that  the  plaintiff  was  allowed  a  p 
for  himself  on  the  train  in  which  his  horses  were  carried  did  not 
prove  conclusively,  if  at  all,  that  he  was  to  attend  to  their  safety 
during  the  journey.  It  may  very  well  be  that  he  desired 
present  at  the  time  and  place  of  delivery  in  order  to  take  care  of 
them  there,  and  that  the  privilege  of  taking  passage  in  the  same 
train  was  allowed  him  for  that  purpose.  The  charge  which  per- 
mitted the  jury  to  find  an  agreement  which  would  relieve  the 
defendants  from  the  obligation  to  keep  an  oversight  of  the  animals 
was  as  favorable  to  them  as  they  could  require. 

As  to  the  carrier's  liability  respecting  the  transportation  of  this 
sort  of  property,  several  theories  have  been  suggested  on  the  argu- 
ment and  in  our  consultations  upon  this  case. 

The   plaintiffs  contend  for  the  rule  that  the  carrier  is  bound  to 
transport  in  safety  and  deliver  at  all  events,  save  only  the  known 
cases  in  which  a  carrier  of  ordinary  chattels  is  excused,  while  the 
defendants  maintain  that  they  are  not  insurers  at  all  against  the 
class  of  accidents  which  arise  from  the  vitality  of  the  freight.     We 
are  of  opinion  that  neither  of  these  positions  is  well  taken.     A  bale 
of  goods  or  other  inanimate  chattel  may  be  so  stowed  as  that  abso- 
lute safety  may  be  attained,  except   in  transportation    by  water, 
where  the  carrier  usually  excepts  the  perils  of  the  navigation,  and 
except  in  cases  of  inevitable  accident.     The  rule,  established  from 
motives  of  policy,  which  charges  the  carrier  in  almost  all  cases,  is 
not  therefore  unreasonable  in  its  application  to  such  property.     But 
the  carrier  of  animals,  by  a  mode  of  conveyance  opposed  to  their 
habits  and  instincts,  has  no  such  means  of  securing  absolute  safety. 
They  may  die  of  fright,  or  by  refusing  to  eat,  or  they  may,  notwith- 
standing  every    precaution,    destroy   themselves    in    attempting   to 
break  away  from  the  fastenings  by  which  they  are  secured  in  the 
vehicle  used  to  transport  them,  or  they  may  kill  each  other.     In 
such  cases,  supposing  all   proper  care  and   foresight  to  have- been 
exercised  by  the  carrier,  it  would  be  unreasonable  in  a  high  degree 
to  charge  him  with  the  loss.     The  reasons  stated  by  Chief  Justice 
Marshall,  in  pronouncing  the  judgment  of  the  Supreme  Court  of  the 
United  States,  in  Boyce  v.  Anderson,  2  Peters,  150,  have  consider- 
able application  to  this  case.      It  was  there  held  that  the  carrier  of 
slaves  was  not  an  insurer  of  their  safety,  but  was  liable  only  for 
ordinary  neglect;  and  this  was  put  mainly  upon  the  ground  that  he 
could  not  have  the  same  absolute  control  over  them  that  he  has  over 
inanimate  matter.     Where,  however,  the*cause  of  the  damage  for 
which  recompense  is  sought  is  unconnected  with  the  conduct  or  pro* 


420  CAKKIEKS    OF    GOODS. 

pensities  of  the  animal  undertaken  to  be  carried,  the  ordinary  re- 
sponsibilities of  the  carrier  should  attach.  Palmer  v.  The  Grand 
Junction  Railway  Company,  4  Mees.  &  Wels.  749,  was  the  case  of 
an  action  against  the  railway  company  for  negligence  in  carrying 
horses,  by  which  one  was  killed  and  others  injured;  but  the  damage 
was  occasioned  by  the  carriages  running  off  the  track  of  the  road 
down  an  embankment,  and  the  case  did  not  turn  at  all  on  the  pecu- 
liarity of  the  freight,  but  mainly  on  the  question  whether  the 
defendants  had  limited  their  responsibility  by  a  notice.  The  jury 
found  that  notice  had  not  been  given  and  that  the  defendants  had 
been  guilty  of  gross  negligence.  Mr.  Baron  Parke,  in  giving  the 
opinion  of  the  court,  declared  that  the  common-law  duty  of  carriers 
was  cast  upon  the  defendants.  The  precise  question  now  before  us 
was  not  discussed,  but  it  was  assumed  that  the  law  of  carriers 
applied  to  the  case.  There  is  no  reason  why  it  should  not,  in  all 
cases  of  accident  unconnected  with  the  conduct  of  the  animals.  But 
the  rule  which  would  exempt  the  carrier  altogether  from  accidents 
arising  out  of  the  peculiar  character  of  the  freight,  irrespective  of 
the  question  of  negligence,  would  be  equally  unreasonable.  It 
would  relieve  the  carrier  altogether  from  those  necessary  precau- 
tions which  any  person  becoming  the  bailee,  for  hire,  of  animals  is 
bound  to  exercise,  and  the  owner,  where  he  did  not  himself  assume 
the  duty  of  seeing  to  them,  would  be  wholly  at  the  mercy  of  the 
carrier.  The  nature  of  the  case  does  not  call  for  any  such  relaxa- 
tion of  the  rule,  and,  considering  the  law  of  carriers  to  be  estab- 
lished upon  considerations  of  sound  policy,  we  would  not  depart 
from  it,  except  where  the  reason  upon  which  it  is  based  wholly  fails, 
and  then  no  further  than  the  cause  for  the  exception  requires. 

We  cannot,  therefore,  assent  to  the  position  of  the  counsel  for 
either  of  the  parties  in  this  case.  The  learned  judge  who  tried  this 
case  gave  to  the  jury  the  true  principle  of  liability  in  such  cases. 
Laying  out  of  view  the  idea  of  inevitable  accident,  which  it  was  not 
pretended  had  occurred,  he  instructed  them  that  the  defendants  were 
responsible,  unless  the  damage  was  caused  by  an  occurrence  incident 
to  the  carriage  of  animals  in  a  railroad  car,  and  which  the  defendants 
could  not,  by  the  exercise  of  diligence  and  care,  have  prevented. 
This  accords  with  our  understanding  of  the  law. 

There  was  sufficient  evidence  of  negligence  to  be  submitted  to  the 
jury.  Besides  what  was  said  by  the  witness  as  to  the  size  of  the 
car,  it  was  quite  probable  that  if  a  proper  watch  had  been  kept, 
the  horse  would  have  been  saved  from  strangulation.  It  was  for 
the  jury  to  say  whether  prudence  did  not  require  that  a  servant  of 
the  defendants  should  have  been  stationed  in  or  about  the  horse-car, 
so  as  to  observe  the  conduct  and  condition  of  the  animals  constantly 
or  at  short  intervals. 

We  think  no  error  was  committed  on  the  trial  to  the  prejudice  of 
the  defendants,  and  that  the  judgment  should  be  affirmed. 


carrier's  liability.  421 

EVANS   v.    FITCHBURG  E.    CO. 
Ill  Mass.  142.     1872. 

Tort   agcainst   common   carriers   to   recover   for   injuries   to   the 
plaintiff's  horse. 

Ames,  J.  According  to  the  established  rule  as  to  the  liability  of 
a  common  carrier,  he  is  understood  to  guarantee  that  (with  the  well- 
known  exception  of  the  act  of  God  and  of  public  enemies)  the  goods 
intrusted  to  him  shall  seasonably  reach  their  destination,  and  that 
they  shall  receive  no  injury  from  the  manner  in  which  their  tra 
portation  is  accomplished.  But  he  is  not,  necessarily  and  under  all 
circumstances,  responsible  for  the  condition  in  which  they  may  be 
found  upon  their  arrival.  The  ordinary  and  natural  decay  of  fruit, 
vegetables,  and  other  perishable  articles ;  the  fermentation,  evapora- 
tion, or  unavoidable  leakage  of  liquids;  the  spontaneous  combustion 
of  some  kinds  of  goods, — are  matters  to  which  the  implied  obligation 
of  the  carrier,  as  an  insurer,  does  not  extend.  Story  on  Bailments, 
§§  492  a,  576.  He  is  liable  for  all  accidents  and  mismanagement 
incident  to  the  transportation  and  to  the  means  and  appliances  by 
which  it  is  effected;  but  not  for  injuries  produced  by,  or  resulting 
from,  the  inherent  defects  or  essential  qualities  of  the  articles  which 
he  undertakes  to  transport.  The  extent  of  his  duty  in  this  respect 
is  to  take  all  reasonable  care  and  use  all  proper  precautions  to  pre- 
vent such  injuries,  or  to  diminish  their  effect,  as  far  as  he  can;  but 
his  liability,  in  such  cases,  is  by  no  means  that  of  an  insurer. 

Upon  receiving  these  horses  for  transportation,  without  any  special 
contract  limiting  their  liability,  the  defendants  incurred  the  general 
obligation  of  common  carriers.  They  thereby  became  responsible 
for  the  safe  treatment  of  the  animals,  from  the  moment  they  received 
them  until  the  carriages  in  which  they  were  conveyed  were  unloaded. 
Moffat  v.  Great  Western  Railway  Co.,  15  Law  T.  n.  s.  630.  They 
would  be  unconditionally  liable  for  all  injuries  occasioned  by  the 
improper  construction  or  unsafe  condition  of  the  carriage  in  which 
the  horses  were  conveyed,  or  by  its  improper  position  in  the  train, 
or  by  the  want  of  reasonable  equipment,  or  by  any  mismanagement, 
or  want  of  due  care,  or  by  any  other  accident  (not  within  the  well- 
known  exception)  affecting  eitherthe  train  generally  or  that  partic- 
ular carriage.  But  the  transportation  of  horses  and  other  domestic 
animals  is  not  subject  to  precisely  the  same  rules  as  that  of  pack- 
ages and  inanimate  chattels.  Living  animals  have  excitabilities 
and  volitions  of  their  own  which  greatly  increase  the  risks  and 
difficulties  of  management.  They  are  carried  in  a  mode  entirely 
opposed  to  their  instincts  and  habits;  they  may  be  made  uncon- 
trollable   by   fright,   or,    notwithstanding    every    precaution,    mav 


422  CARRIERS    OF    GOODS. 

destroy  themselves  in  attempting  to  break  loose,  or  may  kill  each 
other.  If  the  injury  in  this  case  was  produced  by  the  fright,  res- 
tiveness,  or  viciousness  of  the  animals,  and  if  the  defendants  exer- 
cised all  proper  care  and  foresight  to  prevent  it,  it  would  be 
unreasonable  to  hold  them  responsible  for  the  loss.  Clark  v. 
Rochester  &  Syracuse  Railroad  Co.,  4  Kern.  570.  Thus  it  has  been 
held  that  if  horses  or  other  animals  are  transported  by  water,  and 
in  consequence  of  a  storm  they  break  down  the  partition  between 
them,  and  by  kicking  each  other  some  of  them  are  killed,  the  carrier 
will  not  be  held  responsible.  Laurence  v.  Aberdein,  5  B.  &  Aid. 
107.  Story  on  Bailments,  §  576.  Angell  on  Carriers,  214  a.  The 
carrier  of  cattle  is  not  responsible  for  injuries  resulting  from  their 
viciousness  of  disposition,  and  the  question  what  was  the  cause  of 
the  injury  is  one  of  fact  for  the  jury.  Hall  v.  Renfro,  3  Met.  (Ky.) 
51  [313].  And  in  a  New  York  case,  Conger  v.  Hudson  River  Rail- 
road Co.,  6  Duer,  375,  Mr.  Justice  Woodruff  says,  in  behalf  of  the 
court:  "We  are  not  able  to  perceive  any  reason  upon  which  the 
shrinkage  of  the  plaintiff's  cattle,  their  disposition  to  become  res- 
tive, and  their  trampling  upon  each  other  when  some  of  them  lie 
down  from  fatigue,  is  not  to  be  deemed  an  injury  arising  from  the 
nature  and  inherent  character  of  the  property  carried,  as  truly  as  if 
the  property  had  been  of  any  description  of  perishable  goods." 

It  appears  to  us,  therefore,  that  the  first  instruction  which  the 
defendants  requested  the  court  to  give  should  have  been  given.  If 
,the  jury  found  that  the  defendants  provided  a  suitable  car,  and  took 
all  proper  and  reasonable  precaution  to  prevent  the  occurrence  of 
such  an  accident,  and  that  the  damage  was  caused  by  the  kicking  of 
one  horse  by  another, the  defendant  was  entitled  to  a  verdict.  That 
is  to  say,  they  might  be  held  to  great  vigilance,  foresight,  and  care, 
but  they  were  not  absolutely  liable  as  insurers  against  injuries  of 
that  kind.  As  there  was  evidence  also  tending  to  show  that  the 
halter  was  attached  by  the  plaintiff  to  the  jaw  of  one  of  the  horses 
in  a  manner  which  might  cause  or  increase  restiveness  and  bad  tem- 
per, and  also  evidence  that  their  shoes  were  not  taken  off,  the 
defendants  were  entitled  to  the  instruction  that  if  the  injuries  were 
caused  by  the  fault  or  neglect  of  the  plaintiff  in  these  particulars, 
he  could  not  recover.  This  court  has  recently  decided  that  for 
unavoidable  injuries  done  by  cattle  to  themselves  or  each  other,  in 
their  passage,  the  common  carrier  is  not  liable.  Smith  v.  New 
Haven  &  Northampton  Railroad  Co.,  12  Allen,  531.  This  is  another 
mode  of  saying  that  a  railroad  corporation,  in  undertaking  the  trans- 
portation of  cattle,  does  not  insure  their  safety  against  injuries  occa- 
sioned by  their  viciousness  and  unruly  conduct.  Kendall  v.  London 
&  Southwestern  Railway  Co.,  L.  R.  7  Ex.  373.  The  jury  should 
therefore  have  been  instructed  that  if  the  injury  happened  in  that 
way,  and  if  the  defendants  exercised  proper  care  and  foresight  in 
placing  and  securing  the  horses  while  under  their  charge,  they  are 


carrier's  liability.  423 

not  to  be  held  liable  in  this  action.  Upon  this  point  the  burden  of 
proof  maybe  upon  the  defendants,  but  they  should  have  been  per- 
mitted to  go  to  the  jury  upon  the  question  whether  there  had  been 
reasonable  care  on  their  part. 

Exceptions  sustained. 


KINNICK   BROS.   v.  CHICAGO,    etc.  R.    CO. 
69  Iowa,  665.     1886. 

Plaintiff  delivered  a  car-load  of  hogs  to  defendant  at  Drakeville, 
in  this  State,  for  transportation  to  the  Union  stock-yards  at  Chicago. 
A  passenger  train  on  defendant's  road  was  thrown  from  the  track 
near  Ottawa,  Illinois,  and  the  obstruction  caused  by  the  accident 
delayed  the  train  on  which  the  plaintiff's  hogs  were  shipped  for 
about  twelve  hours.  When  the  train  arrived  at  Chicago,  eighteen 
of  the  hogs  were  dead,  and  others  were  so  injured  as  to  depreciate 
their  value  in  market.  Plaintiff  brought  this  action  to  recover  the 
damages  occasioned  by  the  injury,  alleging  that  defendant  had  vio- 
lated its  undertaking  as  a  common  carrier  to  deliver  the  hogs  in 
Chicago  within  a  reasonable  time  and  in  good  order;  also,  that  the 
injury  was  caused  by  defendant's  negligence.  The  defendant  in  its 
answer  denied  that  the  delay  in  delivering  the  hogs  in  Chicago  was 
caused  by  any  negligence  on  its  part,  and  averred  that  the  train  was 
delayed  by  unavoidable  accident;  and  averred  that  the  hogs  were 
loaded  on  the  car  by  plaintiffs;  that  they  had  full  charge  of  the 
work  of  loading  them;  that,  without  defendant's  knowledge  or  con- 
sent, they  overloaded  the  car;  and  that  the  injury  to  the  hogs  while 
being  transported  was  occasioned  by  such  overloading.  The  verdict 
and  judgment  were  for  plaintiffs,  a  motion  for  a  new  trial  being 
denied.     Defendant  appealed. 

Reed,  J.  I.  Defendant  offered  evidence  on  the  trial  to  prove 
'  that  the  wreck  which  obstructed  the  track,  and  delayed  the  train  on 
which  the  hogs  were  being  transported,  occurred  without  fault  on  its 
part,  and  that  it  caused  the  track  to  be  cleared  and  sent  the  train 
forward  as  soon  after  the  accident  as  practicable;  but  the  evidence 
was  excluded  by  the  court  on  the  plaintiff's  objection.  Defendant 
sought  to  prove  these  facts  in  excuse  of  the  delay  in  delivering  the 
hogs  at  Chicago.  There  was  no  express  undertaking  by  the  defend- 
ant to  transport  the  property  to  its  destination  within  any  specified 
time.  The  law,  however,  implies  an  undertaking  by  it  to  deliver  it 
there  within  a  reasonable  time.  But,  with  reference  to  the  time  to 
be  occupied  in  transporting  the  property,  the  carrier  is  not  held  to 
'the  extraordinary  liability  to  which  he  is  held  for  its  safety  while 
it  is  in  his  custody  and  he  may  excuse  delay  in  its  delivery  by  proof 


424  CARRIERS    OF    GOODS. 

of  misfortune  or  accident,  although  not  inevitable  or  produced  by 
act  of  God  (Hutch.  Carr.,  §  330;  Parsons  v.  Hardy,  14  Wend.  215); 
so  .that,  if  plaintiffs  had  sought  to  recover  merely  on  the  ground  that 
there  was  delay  in  the  transportation  of  the  property,  there  would 
be  no  doubt,  perhaps,  but  defendant  would  have  been  entitled  to 
show  the  facts  which  the  excluded  evidence  would  have  tended  to 
prove  as  an  excuse  for  the  delay.  But  that  is  not  the  substance  of 
their  complaint. 

It  is  true,  they  allege  that  there  was  delay,  but  they  do  not  claim 
that  they  were  damaged  by  the  mere  fact  of  the  delay,  and  the 
ground  upon  which  they  seek  to  recover  is  that  the  property  was  in 
bad  condition  when  it  reached  its  destination.     It  was  not  disputed 
that  the  property  was  in  bad  condition  when  it  arrived  in  Chicago. 
The  burden  was  therefore   on  defendant  to  establish   facts  which 
would  relieve  it  from  liability  because  of  its  bad  condition.     It  was 
an  insurer  of  the  safety  of  the  property  while  in  its  charge  for  trans- 
portation, and  it  was  not  released  from  that  extraordinary  liability 
for  its  care  by  the  accident  which  caused  the  delay,  even  though  it 
offered  an  excuse  for  the  delay.     It  was  bound ,  notwithstanding  the 
accident,  to  use  the  highest  degree  of  care  during  the  delay  for  the 
safety  of  the  property.     If  the  removal  of  the  hogs  from  the  car 
during  the  time  was  necessary  for  their  protection  from  injury,  and 
it  was  possible  to  remove  them,  defendant  was  bound  to  do  so ;  and 
it  was  bound  to  give  them  whatever  personal  attention  was  necessary 
for  their  protection  from  injury  during  the  time.     But  it  did  not 
offer  to  show  that  it  had  unloaded  them  from  the  cars,  or  that  it  was 
impossible  to  unload  them,  or  that  it  was  not  necessary  for  their 
safety  to  unload  them,    or  that  the   injury  did   not  occur  in  con- 
sequence of  its  failure  to  give  them  such  personal  attention  as  was 
essential  to  their  safety.     But  the  extent  of  its  offer  was  to  show 
facts  which  tended  merely  to  excuse  the  delay  in  their  transporta- 
tion.    We  are  very  clear  that  those  facts  do  not  afford  an  excuse  for 
the  bad  condition  of  the  property  at  the  time  of  its  delivery.     The 
evidence  was  immaterial,  and  was  rightly  excluded. 

II.  It  was  shown  on  the  trial  that  it  is  the  disposition  of  hogs, 
when  being  transported  on  cars,  to  struggle  to  get  near  to  the  doors 
when  the  train  is  standing,  if  the  weather  is  hot,  and  to  crowd  away 
from  them  if  it  is  cold,  and  that  in  doing  this  they  are  apt  to 
"pile  up,"  and  that  when  this  occurs  those  beneath  are  liable  to  be 
smothered,  unless  they  receive  immediate  attention.  The  court 
instructed  the  jury,  in  effect,  that,  when  the  defendant  contracted 
to  carry  the  hogs  to  their  destination,  the  law  imposed  upon  it  the 
obligation  to  carry  them  in  a  proper  manner,  and  deliver  them  in 
good  condition, .  considering  the  ordinary  perils  of  the  road,  and 
that,  if  it  failed  to  deliver  them  in  such  condition,  it  was  respon- 
sible in  damages  for  such  failure.  The  instruction  holds  that 
defendant  was  an  insurer  of  the  safety  of  the  property,  and  that  its 


CARRIERS    LIABILITY.  425 

liability  extended  to  all  injuries  to  the  property  during  its  trans- 
portation, except  such  as  may  have  resulted  from  the  ordinary  perils 
of  the  road,  such  as  the  usual  shrinkage  in  weight,  and  such  loss 
from  death  as  would  ordinarily  occur  on  the  trip  with  good  care  and 
management.  Counsel  for  appellant  contend  that,  as  the  cause 
of  the  injury  in  question  was  connected  with  the  natural  propen- 
sities and  characteristics  of  the  property,  it  was  one  against  which 
the  carrier  is  held  not  to  be  an  insurer,  and  that  the  instruction  is 
erroneous  on  that  ground. 

It  was  held  in  effect,  by  this  court  in  McCoy  v.  Keokuk  &  D.  M. 
E'y  Co.,  44  Iowa,  424,  that,  when  the  cause  of  damage  for  which 
recompense  is  sought,  is  connected  with  the  character  or  propensities 
of  the  animals  undertaken  to  be  carried,  the  ordinary  responsibility 
of  the  carrier  does  not  attach.  The  reasons  for  the  exception  to  the 
general  rule  as  to  the  liability  of  the  carrier,  which  arises  when  he 
undertakes  to  transport  live-stock,  are  very  apparent.  There  are 
dangers  incident  to  the  transportation  of  that  character  of  property 
which  are  created  entirely  by  the  disposition  and  propensities  of  the 
animals,  and  against  which  it  is  often  impossible  for  the  carrier  to 
make  adequate  provision.  But  the  rule  of  the  common  law  is  modi- 
fied only  so  far  as  is  rendered  necessary  by  the  character  of  the 
property  in  this  respect.  In  every  other  respect  the  carrier  is  held 
to  be  an  insurer  of  the  property. 

In  our  opinion,  the  present  case  is  not  within  the  exception  to  the 
rule.  The  injury  was  caused  by  the  "  piling  up  "  of  the  hogs  while 
struggling  to  get  near  to  or  away  from  the  doors  of  the  car.  The  pro- 
pensity, however,  was  to  do  this  only  when  the  train  was  standing. 
Owing  to  the  obstruction  of  the  track,  it  was  kept  standing  at  a 
station  for  twelve  hours,  and,  without  doubt,  it  was  during  that 
time  that  the  injury  occurred.  But  the  danger  was  not  one  against 
which  provision  could  not  be  made.  The  injury  might  have  been 
prevented  either  by  unloading  the  hogs  or  giving  them  personal 
attention  while  in  the  car.  There  is  no  claim  that  this  could  not 
have  been  done,  and  we  think  defendant  was  bound  to  do  it.  As 
there  was  nothing  shown  which  tended  to  take  the  case  out  of  the 
general  rule,  the  court  was  right  in  instructing  that  defendant  was 
bound  by  that  rule. 

III.  Plaintiffs  loaded  the  hogs  on  to  the  car  without  assistance  or 
direction  from  defendant's  agents  or  employees.  Defendant  claimed 
that  the  car  was  overloaded,  and  that  the  injury  was  caused  by  such 
overloading.  The  court  instructed  the  jury  that,  if  defendant  had 
knowledge  of  the  number  of  hogs  in  the  car,  and  of  the  condition  of 
the  car  as  to  the  loading  when  it  received  it,  or  if  it  might  have 
known  these  facts,  it  could  not  escape  liability  for  the  damage  on 
the  ground  that  the  car  was  overloaded.  Exception  is  taken  to  this 
instruction.  But  we  think  it  correct.  It  is  not  claimed  that  there 
was  any  deceit  or  misrepresentation  by  plaintiff  as  to  the  condition 


426  CARRIERS   OF   GOODS. 

of  the  car  or  to  its  loading.  Defendant's  agent,  who  made  the  con- 
tract for  it,  went  to  the  car  after  the  loading  was  done,  and  closed 
and  sealed  it.  There  was  nothing  to  prevent  him  from  seeing  the 
manner  in  which  it  was  loaded.  As  defendant  received  the  property 
under  these  circumstances,  and  undertook  to  transport  it  to  its  des- 
tination, it  should  be  held  to  have  assumed  all  the  liabilities  of  a 
common  carrier  with  reference  to  it. 

The  judgment  of  the  District  Court  will  be 

Affirmed. 


WILKE   v.   ILLINOIS   CENTKAL   E.    CO. 

153  Iowa,  695;  133  N.  W.  R.  746.     1912. 

McClaix,  J.  Plaintiff  shipped  two  car  loads  of  hogs  over  defend- 
ant's road,  one  from  Webster  City,  and  the  other  from  Wilke,  to 
Chicago,  the  two  cars  being  contained  in  the  same  train;  and,  when 
the  cars  reached  their  destination,  some  of  the  hogs  were  found  to  have 
died,  according  to  plaintiff's  allegations,  as  the  result  of  excessive 
heat.  [The  specific  charges  of  negligence  alleged  to  have  occasioned 
the  loss  for  which  plaintiff  claimed  damages  were  that  defendant  left 
the  train  containing  the  two  cars  standing  for  several  hours  during 
transit  in  a  deep  cut  where  no  breeze  could  reach  the  hogs  in  such 
cars,  disregarding  notification  by  the  person  in  charge  of  the  animals 
that  they  were  suffering  from  heat  and  the  request  that  the  train  be 
moved  to  some  place  where  the  breeze  could  reach  the  animals  so  as 
to  prevent  injury  to  them  from  the  excessive  heat.] 

The  principal  complaint  on  behalf  of  appellant  is  as  to  the  giving  of 
instructions  in  which  it  was  assumed  that  the  amendment  to  plaintiff's 
petition  alleging  that  the  hogs  were  alive  and  in  good,  sound,  healthy 
condition  when  delivered  to  defendant  for  shipment,  and  that,  when 
they  arrived  at  their  destination,  some  of  them  were  dead,  and  the 
others  greatly  shrunk  in  weight  and  sick  and  in  bad  condition,  such 
loss  and  damages  occurring  while  the  hogs  were  in  defendant's  care 
during  transportation,  stated  an  independent  cause  of  action,  with 
reference  to  which  the  jurors  were  instructed  that  proof  of  the  fact 
alleged  by  a  preponderance  of  the  evidence  would  require  a  verdict  in 
favor  of  plaintiff  unless  the  jury  should  "  find  that  the  defendant  has 
established,  by  a  preponderance  of  the  evidence,  its  second  defense,  in 
which  event  your  verdict  should  be  in  favor  of  the  defendant ; "  the 
second  defense  being  that  the  plaintiff  was  in  charge  of  the  stock 
during  shipment,  and  that  any  loss  during  said  shipment,  by  reason 
of  sudden  rise  in  temperature  and  excessive  heat,  was  chargeable  to 
plaintiff,  and,  further,  that  such  loss  was  due  to  the  contributory 


carrier's  liability.  4_'7 

negligence  of  plaintiff,  and  not  to  the  negligence  of  the  defendant. 
And,  in  this  connection,  the  court  further  charged,  that  the  verdict 
should  be  in  favor  of  the  defendant  if  it  had  been  shown  by  a  pre- 
ponderance of  the  evidence  that  with  respect  to  the  stock  defendant 
"exercised  the  highest  possible  degree  of  foresight,  pains,  and  care 
reasonably  to  be  expected  of  it."  In  another  instruction  the  jurors 
were  told  that,  if  plaintiff  had  proved  that  the  stock  "  was  in  good 
condition  when  delivered  to  the  carrier,  but  was  in  bad  condition 
when  it  arrived  at  destination,  the  burden  of  proof  is  on  the  carrier  to 
show  by  a  preponderance  of  the  evidence,  in  order  to  avoid  liability, 
that  it  exercised  with  respect  to  said  stock  the  highest  possible  degree 
of  foresight,  pains,  and  care  reasonably  to  be  expected  of  it." 

In  the  case  of  Colsch  v,  Chicago,  M.  &  St.  P.  E,.  Co.,  149  Iowa,  17G, 
finally  decided  in  this  court  after  the  trial  of  the  present  action  in  the 
lower  court,  it  was  held  that  for  injuries  resulting  to  live  stock  during 
transportation,  by  reason  of  changes  in  temperature,  the  common 
carrier  is  not  liable  as  an  insurer,  but  only  for  negligence ;  and  that  if 
the  owner  or  his  agent  accompanies  the  stock,  the  burden  is  on  him 
to  show  that  negligence  of  defendant  occasioned  the  injury,  and  that 
in  such  cases  no  presumption  of  negligence  arises  merely  from  proof 
of  the  fact  of  loss  or  damage,  the  shipper  in  charge  of  the  stock 
during  transit  being  presumed  to  know  the  cause  of  such  loss  or 
damage  as  well  as  the  carrier.  On  the  other  hand,  the  rule  is  recog- 
nized in  that  case  that,  if  the  shipper  or  his  agent  does  not  accompany 
the  stock  in  charge  of  it,  the  burden  rests  upon  the  carrier,  which 
alone  is  presumed  under  such  circumstances  to  have  knowledge  of  the 
fact,  to  prove  by  a  preponderance  of  the  evidence  that  the  loss  or 
damage  did  not  result  from  any  cause  attributable  to  defendant's 
negligence.  The  reasons  for  these  rules  are  fully  stated  in  that 
opinion,  and  need  not  be  elaborated  here.  See  Hosteller  v.  Iowa 
Central  R.  Co.,  153  Iowa,  390,  (decided  at  present  term).  In 
view  of  these  rules,  we  have  no  difficulty  in  reaching  the  conclusion 
that  the  instructions  above  referred  to  were  erroneous  to  defendant's 
prejudice. 

In  the  first  place,  it  appears  beyond  question  that  the  agent  of  the 
plaintiff  did  accompany  the  stock  during  at  least  a  portion  of  the 
transportation  for  the  purpose  of  caring  for  it,  and  that  the  only 
undue  exposure  to  heat  which  the  evidence  tended  to  establish 
occurred  during  the  time  when  the  stock  was  accompanied  by  and  in 
charge  of  defendant's  said  agent.  To  this  extent  at  least  the  burden 
was  on  the  plaintiff  to  show  by  a  preponderance  of  the  evidence  that 
such  exposure  was  the  result  of,  or  was  contributed  to  by,  defendant's 
negligence  without  the  fault  or  neglect  of  the  agent  of  plaintiff. 

In  the  second  place,  the  instructions  would  have  been  erroneous 
even  in  the  absence  of  any  evidence  that  plaintiff  or  his  agent  accom- 
panied the  stock,  in  requiring  defendant  to  show  by  a  preponderance 
of  the  evidence  that  with  respect  to  the  stock,  defendant  exercised  the 


428  CARRIERS   OF   GOODS. 

highest  possible  degree  of  foresight,  pains,  and  care  reasonably  to  be 
expected  of  it.  The  measure  of  care  required  of  the  carrier  to  avoid 
injury  to  the  stock  in  transport  from  changes  in  temperature  is 
reasonable  care,  and  not  the  highest  possible  degree  of  care.  Colsch 
v.  Chicago,  M.  &  St.  P.  E.  Co.,  supra. 

The  trial  court  did  not  in  any  of  its  instructions  refer  specifically 
to  the  fact  that  plaintiff's  agent  accompanied  the  stock  as  having  any 
bearing  on  the  sufficiency  of  the  evidence  as  to  defendant's  negligence. 
Something  was  said  with  reference  to  the  burden  of  proof  resting  on 
plaintiff,  under  the  issue  raised  by  its  original  petition  and  the  answer 
thereto  relating  to  the  specific  negligence  charged  in  stopping  the 
train  on  a  very  hot  day  in  a  deep  cut,  and  keeping  the  stock  in  that 
situation  for  a  long  period  of  time,  resulting,  as  alleged,  in  loss  of  and 
damages  to  plaintiff's  hogs,  to  show  by  a  preponderance  of  the  evi- 
dence that  plaintiff  was  himself  free  from  any  negligence  contribut- 
ing to  such  injury ;  but  this  did  not  give  to  the  defendant  the  full 
benefit  to  which  it  was  entitled  under  the  issue  raised  under  the 
amendment  to  the  petition  of  the  fact  that  plaintiff's  agent  did  accom- 
pany the  stock  during  the  period  of  this  specifically  alleged  negligent 
conduct  of  the  defendant.  The  court  seems  to  have  assumed  that 
without  the  amendment  to  its  answer  offered  by  the  defendant  at  the 
conclusion  of  the  evidence,  which  the  court  refused  to  entertain,  relat- 
ing to  the  contract  of  shipment,  there  was  nothing  in  the  case  to 
render  the  fact  that  plaintiff's  agent  accompanied  the  stock  in  any  way 
material.  As  will  appear  from  an  examination  of  the  opinion  in  the 
Colsch  case,  supra,  it  is  evident  that  the  fact  was  material,  not  as 
affecting  the  degree  of  care,  but  as  affecting  the  burden  with  reference 
to  proof  of  defendant's  negligence,  and  that  for  this  purpose  it  is  the 
fact  rather  than  the  specific  contract  which  is  controlling.  If,  in  fact, 
the  shipper  or  his  agent,  with  the  carrier's  consent,  accompanies  the 
stock  during  transportation  for  the  purpose  of  caring  for  it  so  far  as 
practicable,  then  the  shipper  is  in  as  good  a  position  as  the  carrier  to 
know  what  was  the  cause  of  the  loss  or  injury,  and  whether  such  loss 
or  injury  was  the  result  of  the  carrier's  negligence,  and  the  burden 
of  proving  the  carrier's  negligence  therefore  remains  in  the  nature  of 
things  with  the  plaintiff  to  show  that  as  to  matters  reasonably  within 
his  knowledge  while  accompanying  the  stock  the  fault  occasioning  the 
injury  was  not  his  but  that  of  the  carrier.  Grieve  v.  Illinois  Central 
R.  Co.,  104  Iowa,  659;  Terre  Haute,  etc.,  R.  Co.  v.  Sherwood,  132  Ind. 
129  (31  N.  E.  781,  17  L.  R.  A.  339,  32  Am.  St.  Rep.  239  and  note) ; 
St.  Louis  &  S.  E.  R.  Co.  v.  Wells,  81  Ark.  469  (99  S.  W.  534)  ;  Libby 
v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  137  Mo.  App.  276  (117  S.  W.  659); 
Cleve  v.  Chicago,  B.  &  Q.  R.  Co.,  77  Neb.  166  (108  N.  W.  982, 124  Am. 
St.  Rep.  837) ;  15  Am.  &  Eng.  Ann.  Cas.,  33,  and  note. 

•  •••«••••••» 

The  judgment  must  be  reversed. 


carrier's  liability.  429 


FAUCHER  v.  WILSON. 
68  N.  H.  338 ;  38  Atl.  R.  1002  ;  39  L.  R.  A.  431.     1895. 

Case,  against  the  defendant  as  a  common  carrier  of  goods,  for  the 
loss  of  a  hogshead  of  molasses.     Facts  found  by  the  court. 

The  defendant  was  engaged  in  the  business  of  trucking  goods  for 
hire  from  the  railway  freight  station  in  Manchester  to  different  stores 
in  the  city.  On  one  of  the  warmest  days  in  the  summer  of  1891,  he 
transported  a  hogshead  of  molasses  from  the  freight  station  to  the 
plaintiff's  store  on  Elm  street,  a  distance  of  a  little  over  half  a  mile. 
By  reason  of  the  fermentation  of  the  molasses,  the  hogshead  burst 
while  being  unloaded.  The  plaintiff's  loss  was  not  caused  by  any 
want  of  ordinary  care  on  the  part  of  the  defendant.  Each  party 
moved  for  judgment  in  his  favor. 

Chase,  J.  It  is  not  found  that  the  defendant  was  a  common  car- 
rier. The  finding,  that  he  was  engaged  in  the  business  of  trucking 
goods  for  hire  from  the  railway  freight  station  to  different  stores  in 
the  city,  lacks  the  distinguishing  characteristic  of  a  common  carrier, 
namely,  the  holding  of  oneself  out  as  ready  "  to  carry  at  reasonable 
rates  such  commodities  as  are  in  his  line  of  business,  for  all  persons 
who  offer  them,  as  early  as  his  means  will  allow."  Sheldon  v.  Robin- 
son, 7  N.  H.  157,  163 ;  Elkins  v.  Railroad,  23  N.  H.  275 ;  Moses  v. 
Railroad,  24  N.  H.  71,  80,  88,  89 ;  McDuffee  v.  Railroad,  52  X.  H. 
430,  448 ;  State  v.  Express  Co.,  60  N.  H.  219,  261 ;  2  Kent  597,  598 ; 
Sto.  Bailm.,  ss.  495,  508  ;  Brind  v.  Dale,  8  C.  &  P.  207 ;  Liver  Alkali 
Co.  v.  Johnson,  L.  R.  9  Exch.  338,  343 ;  Scaife  v.  Farrant,  L.  R.  10 
Exch.  358,  365 ;  Nugent  v.  Smith,  1  C.  P.  Div.  423 ;  Fish  v.  Chapman, 
2  Kelly  (Ga.)  349 ;  Allen  v.  Sackrider,  37  N.  Y.  341  [299]  ;  Lough  v. 
Outerbridge,  143  N.  Y.  271,  278.  The  inference  from  this  finding  is 
as  strong,  to  say  the  least,  that  the  defendant's  business  was  limited 
to  trucking  for  particular  customers,  at  prices  fixed  in  each  case  by 
special  contract,  as  it  is  that  he  held  himself  out  as  ready  to  truck  for 
the  public  indiscriminately  at  reasonable  prices.  If  such  was  the 
character  of  his  business,  he  was  not  an  insurer  of  the  plaintiff's 
goods,  —  there  being  no  special  contract  of  insurance,  —  and  was  only 
bound  to  exercise  ordinary  care  in  respect  to  them. 

If  the  defendant  was  a  common  carrier,  he  is  not  liable  for  the 
plaintiff's  loss,  since  it  happened  from  the  operation  of  natural  laws, 
which  a  common  carrier  does  not  insure  against.  Hudson  v.  Baxen- 
dale,  2  H.  &  N.  575;  Great  Western  Railway  Co.  v.  Blower,  20  W.  R. 
776 ;  Nugent  v.  Smith,  1  C.  P.  Div.  423 ;  Nelson  v.  Woodruff,  1  Black, 
156 ;  Smith  v.  Railroad,  12  Allen,  531,  533 ;  Swetland  v.  Railroad, 
102  Mass.  276,  282;  Dow  v.  Packet  Co.,  84  Me.  490;  Coupland  v. 
Railroad,  61  Conn.  531 ;  Rixford  v.  Smith,  52  N.  H.  355.  In  Farrar 
v.  Adams,  1  Bull.  N.  P.  69,  it  is  said  that  "  if  an  action  were  brought 


430  CARRIERS    OF    GOODS. 

against  a  carrier  for  negligently  driving  his  cart  so  that  a  pipe  of  wine 
was  burst  and  was  lost,  it  would  be  good  evidence  for  the  defendant 
that  the  wine  was  upon  the  ferment,  and  when  the  pipe  burst  he  was 
driving  gently." 

It  being  found  that  the  plaintiff's  loss  was  not  due  to  any  want  of 
ordinary  care  on  the  part  of  the  defendant,  there  must  be 

judgment  for  the  defendant. 


e.    Carrier's  Fault  or  Negligence. 

SCOVILL   v.    GRIFFITH. 
12  N.  Y.  509.     1855. 

Action  commenced  in  the  Supreme  Court  in  1849  against  the 
defendant  as  a  common  carrier  to  recover  for  his  omission  to  trans- 
port to  and  deliver  at  Albany  merchandise,  shipped  by  the  plaintiffs 
on  board  the  defendant's  boat  at  New  York,  consigned  to  Albany, 
whereby,  as  the  plaintiffs  alleged,  the  property,  being  of  the  value 
of  three  hundi'ed  and  twenty-four  dollars,  became  lost  to  them,  and 
they  also  lost  the  benefit  of  the  sale  of  the  same  to  one  Greenman, 
to  their  damage  of  one  hundred  dollars;  the  plaintiffs  demanded 
judgment  for  four  hundred  and  twenty-four  dollars,  being  the  amount 
of  the  value  of  the  merchandise  and  the  damages  alleged  to  have 
been  sustained  by  not  selling  it. 

The  cause  was  tried  in  the  city  of  New  York,  before  Mr.  Justice 
Edwards  and  a  jury.  It  appeared  that  on  and  prior  to  the  24th  of 
May,  1849,  the  defendant  was  the  owner  of  a  line  of  barges,  known 
as  "Griffith's  New  York  and  Troy  Line,"  employed  in  transporting 
goods  and  merchandise  on  the  Hudson  River;  that  the  plaintiffs  were 
merchants  in  the  city  of  New  York;  that  prior  to  the  delivery  of 
the  property  in  question  on  board  the  defendant's  boat,  the  plaintii'is 
had  contracted  to  sell  it  to  one  Greenman,  the}7  to  deliver  it  at  the 
store  of  Ainsworth  &  Northrop,  in  Albany,  when  it  was  to  become 
his.  A  witness  on  the  part  of  the  plaintiffs  testified  that  on  the 
23d  of  May,  the  defendant  agreed  with  the  plaintiffs  to  transport  all 
the  merchandise  they  might  desire  to  send  to  Troy  or  Albany  at  six 
cents  a  package;  that  the  defendant,  on  this  occasion,  informed  the 
plaintiffs  that  his  boats  did  not  go  to  Albany,  but  that  when  they 
wished  the  goods  to  go  to  Albany,  to  send  the  carman  with  them  to 
his  office,  and  he  would  give  directions  as  to  the  boat  they  should  be 
delivered  upon.  White,  a  carman,  sworn  on  behalf  of  the  plain- 
tiffs, testified  that  on  the  24th  of  May  he,  at  the  plaintiff's  request, 


carrier's  liability.  431 

delivered  nine  packages  of  medicine  on  board  the  barge  "McCoun," 
then  lying  at  one  of  the  piers  in  New  York,  she  being  one  of  the 
boats  belonging  to  the  defendant's  line,  to  be  transported  and 
delivered  at  Albany;  that  when  he  received  the  packages  he  took 
with  him  the  plaintiff's  receipt  book  with  the  receipt  hereinafter 
set  out  written  therein,  except  the  name  of  the  boat  and  the  signa- 
ture thereto;  that  he  called  with  the  goods  at  the  office  of  the 
defendant's  line  to  get  directions  as  to  the  boat  upon  which- they 
should  be  delivered;  that  he  showed  the  receipt  written  in  the  book 
to  a  person  in  the  office,  who  directed  him  to  deliver  the  packages 
on  board  the  "  McCoun ;  "  that  on  going  to  the  boat  the  captain , 
Wilson,  when  he  saw  the  goods  were  marked  for  Albany,  refused 
to  receive  them,  saying  the  boat  did  not  go  there;  but  upon  being 
informed  by  the  witness  that  there  was  an  understanding  with  the 
defendant  that  they  should  be  taken  on  the  boat,  he  received  them, 
inserted  the  name  of  the  boat  in  the  receipt,  and  signed  it.  The 
receipt  was  as  follows :  — 

"  New  York,  May  24,  1849. 

"Keceived  from  A.  L.  Scovill  &  Co.,  in  good  order,  on  board  the 
Griffith's  line,  bound  for  Albany,  marked  S.,  S.  H.  Greenman. 
"  Care  of  Ainsworth  &  Northrop,  )  McCoun, 

"No.  15  State  street,  Albany.    )  9  boxes  Mdse. 

"Wilson.'1 

This  witness  further  testified:  That  when  the  captain  saw  the 
packages  marked  as  stated  in  the  above  receipt,  he  said  they  should 
be  marked  Troy  instead  of  Albany,  and  that  he,  the  witness,  replied 
that  they  were  correctly  marked,  and  showed  him  the  above  receipt 
prepared  for  signature,  and  also  informed  him  that  he  was  directed 
at  the  office  to  deliver  them  on  that  boat;  that  the  captain  still 
declining  to  receive  and  receipt  them,  he  commenced  reloading  them 
on  his  cart,  when  the  captain  told  him  that  his  boat  did  not  go  to 
Albany,  but  to  leave  the  goods  and  he  would  take  them ;  that  there- 
upon they  were  delivered  on  board  and  the  receipt  signed.  The 
plaintiffs  further  proved,  that  the  usual  time  for  transporting  mer- 
chandise from  New  York  to  Albany  was  twenty-four  hours;  that 
Greenman,  who  resided  in  the  western  part  of  the  State,  advised 
Ainsworth  &  Northrop  that  the  property  would  be  delivered  there 
for  him  about  the  26th  of  May,  and  that  he  called  and  sent  there  for 
it  several  times  soon  after  that  date,  and  that,  it  not  arriving,  he 
gave  them  no  further  directions  in  reference  to  it.  The  plaintiffs 
further  proved  that  the  packages  were  taken  by  the  boat  to  Troy, 
where  they  remained  in  the  defendant's  warehouse  until  the  7th  of 
July,  1849,  when  they  were  delivered  by  the  defendant  to  a  carrier 
to  be  taken  to  Albany  and  delivered  to  Ainsworth  &  Northrop;  and 
that  the  carrier  on  that  day  took  them  to  the  latter  firm  at  Albany 
and  offered  to  deliver  them,  subject  to  the  payment  of  five  shilling 


432  CARRIERS    OF    GOODS. 

his  charge  for  bringing  them  from  Troy ;  but  the  latter  firm  refused 
to  receive  the  goods  because,  as  they  stated,  the  time  for  delivery 
had  passed  and  they  had  orders  not  to  receive  the  property ;  and 
that  thereupon  the  carrier  stored  the  packages  in  Albany,  where  they 
remained  at  the  time  of  the  trial.  The  plaintiff  proved  the  value  of 
the  property  to  be  $324. 

The  court,  among  other  things,  charged  the  jury  that  if,  from  the 
testimony,  they  should  find  that  there  was  an  agreement  by  the 
defendant,  or  those  whose  acts  would  bind  him,  to  carry  the  prop- 
erty in  question  to  Albany,  then  a  question  arose  as  to  the  rule  of 
damages.  That  mere  delay,  although  unreasonable,  did  not  make 
the  defendant  chargeable  for  the  value  of  the  goods.  That  in  this 
case  there  was  no  claim  that  the  property  was  injured  or  deteriorated 
by  the  delay.  That  if  they  had  been  materially  injured  or  deteri- 
orated, this  might  authorize  an  abandonment  of  them  by  the  owner, 
and  give  the  plaintiffs  a  right  to  charge  the  defendant  for  their 
value ;  but  as  it  was,  the  rule  would  be  the  difference  between  the 
highest  market  price  of  the  goods,  when  or  after  they  should  have 
been  delivered,  and  when  they  were  actually  tendered,  and  the 
expense  the  plaintiffs  were  put  to  by  the  delay.  To  this  portion  of 
the  charge  there  was  no  exception. 

The  plaintiffs'  counsel  requested  the  judge  to  charge,  that  if  there 
was  an  agreement  to  carry  the  goods  to  Albany,  that  unreasonable 
delay  in  the  delivery  of  goods  made  the  defendant  liable  to  account 
for  their  full  value ;  that  the  law  imposed  this  liability  upon  com- 
mon carriers,  as  a  penalty  for  delay,  although  it  might  not  be  so 
with  other  bailees.  The  court  refused  to  so  charge,  and  the  counsel 
for  the  plaintiffs  excepted.  The  jury  rendered  a  verdict  in  favor 
of  the  plaintiff  for  $10;  and  judgment  was  rendered  in  favor  of  the 
defendants  for  the  amount  of  their  costs,  less  the  $10.  This  judg- 
ment was  affirmed  by  the  Supreme  Court  at  a  general  term  in  the  1st 
district.     The  plaintiffs  appealed  to  this  court. 

Hand,  J.  The  jury  have  found  the  contract  of  bailment  in  this 
case,  and  assessed  the  damages  for  its  violation  by  the  defendant. 
As  to  the  time  in  which  his  contract  is  to  be  performed,  a  common 
carrier  is  bound  to  use  all  reasonable  diligence.  That  was  not  done 
in  this  case;  and  on  the  question  of  damages,  the  jury  probably  took 
a  view  of  the  circumstances  very  favorable  to  the  defendant.  But 
their  verdict  cannot  be  disturbed  solely  upon  that  ground.  Nor  did 
the  judge  err  in  the  admission  of  evidence  as  to  the  circumstances 
under  which  the  receipt  was  given.  The  proposition  was  not  to 
vary  or  explain  the  terms  of  the  receipt;  and  the  defendant  had  a 
right  to  show,  if  such  was  the  fact,  that  it  was  obtained  from  his 
agent  or  servant  under  such  circumstances  as  did  not  bind  him. 

There  was  no  exception  to  the  charge  as  given;  and  the  only  ques- 
tion really  arising  on  this  bill  of  exceptions  is,  whether  the  judge 
should  have  told  the  jury  that,  if  there  was  a  contract  to  carry  the 


CARRIERS   LIABILITY.  433 

goods  to  Albany,  the  plaintiffs  were  entitled,  as  a  matter  of  law,  to 
recover  the  full  value  of  the  goods  on  account  of  the  delay.  The 
plaintiffs  asked  for  an  unqualified  charge  on  this  point,  without 
reference  to  the  motives  of  the  defendant,  or  any  circumstances  that 
might  be  supposed  to  explain  the  transaction.  I  think  the  judge 
could  not  have  charged  as  requested.  The  plaintiffs  state  in  their 
complaint  that  the  property  was  wholly  lost  to  them,  and  that  they 
lost  the  sale  to  Greenman.  But  the  testimony  does  not  sustain  that 
allegation;  not  in  a  legal  sense. 

Before  the  Code,  a  good  way  of  ascertaining  legal  obligations  was 
by  considering  the  remedies  by  which  they  were  enforced.  A  sup- 
posed uniform  and  universal  remedy  in  all  cases  has,  in  a  measure, 
deprived  us  of  these  aids ;  but  still  some  light  may  be  obtained  from 
analogy.  This  property  was,  from  some  cause,  detained  in  Troy, 
some  half  dozen  miles  from  Albany,  about  six  weeks;  and  the 
defendant,  during  that  time,  made  no  effort  to  send  it  to  its  desti- 
nation. This  was  inexcusable  delay,  and  undoubtedly  entitled  the 
plaintiffs  to  all  real  damages  sustained  by  them  which  were  the 
natural  consequence  of  the  neglect.  But  it  does  not  follow  that 
the  plaintiffs  had  a  right  to  refuse  and  abandon  the  property  and 
recover  its  full  value.  There  is  no  evidence  of  a  refusal  to  deliver, 
nor,  indeed,  that  the  plaintiffs  ever  demanded  the  property  or  gave 
the  defendant  notice  that  it  had  not  been  received.  They  were  not 
bound  to  do  either  to  give  them  a  right  of  action.  But  the  judge 
could  not  say  to  the  jury,  as  matter  of  law,  that  there  had  been  a 
conversion ;  nor  does  it  appear  that  the  property  had  deteriorated  in 
condition  or  had  seriously  depreciated  in  value,  nor  was  it  lost. 
Where  there  has  been  a  deterioration  and  loss,  the  carrier  is  liable. 
Davis  v.  Garrett,  6  Bing.  716  [439] ;  Ellis  v.  Turner,  8  T.  R.  531 ;  Story 
on  Bail.  §  508.  In  Ellis  v.  Turner,  which  was  an  action  on  the 
ease,  the  carrier  conveyed  the  goods  beyond  the  place  of  destina- 
tion, intending  to  deliver  them  on  his  return,  but  they  were  greatly 
damaged  by  the  sinking  of  the  vessel  without  any  want  of  ordinary 
care  or  attention  of  the  master  or  crew,  and  the  carrier  was  held 
liable  to  make  good  the  loss.  Under  the  former  system,  to  main- 
tain trover  against  a  carrier,  there  must  have  been  an  unjustifiable 
refusal  to  deliver,  or  delivery  to  a  wrong  person,  or  sale  or  destruc- 
tion, or  some  actual  wrong  or  injurious  conversion;  something  more 
than  mere  omission.  Packard  v.  Gdtman,  4  Wend.  61.3;  Hawkins 
v.  Hoffman,  6  Hill,  586;  2  Saund.  R.  49.  i.  k.  m.  It  was  not 
necessary  that  the  wrong  should  be  intentional;  but,  as  a  general 
rule,  a  mere  nonfeasance  did  not  and  does  not  work  a  conversion. 
And  indeed  every  unauthorized  intermeddling  with  the  property  of 
another  is  not  a  conversion.  It  was  held  by  the  Court  of  Exchequer 
in  England  that  the  act  of  the  ferryman  in  putting  the  horses  of 
the  plaintiff  on  shore  out  of  his  ferry-boat,  though  the  jury  should 
find  it  was  done  wrongfully,  was  not  a  conversion  of  the  property, 


434  CARRIERS   OF   GOODS. 

unless  done  with  the  intent  to  convert  it  to  his  own  use  or  that  of 
some  third  person,  or  unless  the  act  had  the  effect  to  destroy  it  or 
change  its  quality.  Fouldes  v.  Willoughby,  8  M.  &  W.  540.  If  it 
had  appeared  in  this  case  that  the  defendant,  from  gross  negligence, 
evincing  a  disregard  of  his  contract  and  the  rights  of  the  plaintiffs, 
had  carried  the  property  by  and  on  to  another  port,  and  had,  with 
actual  knowledge  of  all  the  facts,  kept  it  several  weeks,  I  am  not 
prepared  to  say  the  jury  might  not  have  found  that  there  was  some- 
thing more  than  omission,  or  that  the  evidence  would  not  have  sus- 
tained a  verdict  that  the  defendant  was  guilty  of  conversion,  if 
rendered  under  a  proper  charge  from  the  court.  However,  that 
point  need  not  be  decided  here,  for  it  was  not  raised  upon  the  trial; 
plaintiffs  putting  this  part  of  their  case  upon  the  ground  of  mere 
delay,  insisting  that  the  defendant  should  pay  for  the  property  as 
a  penalty  for  that  delay,  and  thus,  as  it  were,  impliedly  treating 
the  case  as  a  continuing  bailment,  rather  than  one  of  loss  or  actual 
conversion  to  the  use  of  the  defendant.  If  the  facts  of  the  case 
would  not  have  sustained  trover,  the  remedy  would  naturally  have 
been  an  action  of  assumpsit  or  case;  and  the  plaintiffs  have  not 
shown  that  they  would  have  been  entitled  to  recover  for  the  full 
value  of  the  property  in  either  of  those  actions.   ... 

The  judgment  should  be  affirmed. 


BLACKSTOCK   v.   NEW   YORK,    etc.    R.    CO. 
20  N.  Y.  48.     1859. 

Appeal  from  the  Superior  Court  of  the  city  of  New  York.  The 
action  was  brought  against  the  defendant  as  a  common  carrier,  for  a 
delay  in  the  carriage  of  a  large  quantity  of  potatoes  in  barrels  and 
sacks,  from  Hornellsville  in  Steuben  County,  to  the  city  of  New 
York.  They  were  received  by  the  defendant  on  different  days  in 
June,  1854,  and  would  have  been  delivered,  according  to  the  usual 
course  of  business,  within  five  days,  but  they  were  detained  about 
seventeen  days,  and  when  delivered  were  found  to  have  become 
unmerchantable,  and  were  nearly  worthless  on  account  of  the  delay 
in  their  transportation. 

The  delay  was  occasioned  by  the  refusal  of  a  large  number  of  the 
defendant's  engineers  (140  out  of  a  total  number  of  168)  to  work, 
under  the  following  circumstances:  On  the  15th  of  May,  1854,  the 
defendant  adopted  a  new  rule  for  the  government  of  its  engineers, 
to  the  effect  that  they  were  respectively  to  be  accountable  for  run- 
ning the.  train  off  the  track  at  a  switch,  at  any  station  where  the 
train  should  stop.     This  rule  was  a  substitute  for  a  former  one  upon 


CARRIERS    LIABILITY. 


435 


the  same  general  subject,  which  had  been  found  impracticable,  and 
which  had  not  therefore  been  enforced.  The  referee  before  whom 
the  case  was  tried,  found,  in  substance,  that  the  new  rule  w. 
reasonable  and  proper  one,  which  ought  to  have  been  submitted  to 
by  the  engineers.  They  did  perform  their  duties  under  it  for  a 
time,  but  when  it  was  ascertained  that  it  would  be  steadily  enforced, 
a  combination,  which  is  called  in  the  case  "a  strike, "  was  enti 
into,  and  they  gave  notice  that  they  should  stop  work  unless  the 
regulation  should  be  rescinded  in  two  days.  That  not  being  done, 
they  refused  to  perform  any  further  services,  and  persisted  for  four- 
teen days;  at  the  expiration  of  which  period  they  returned  to  theii 
duties,  and  have  since  served  under  the  new  rule.  The  defendant 
used  diligent  efforts  to  procure  other  engineers  to  run  its  trains, 
but  was  not  successful.  The  delay  in  transporting  the  potatoes 
was  owing  to  -the  circumstances  mentioned.  The  potatoes  were 
owned  by,  and  the  cause  of  action  (if  any)  accrued  in  favor  of,  one 
Rosbotham,  who  had  assigned  it  to  the  plaintiff.  The  referee  found 
that  the  conduct  of  the  defendant's  engineers  did  not  furnish  a 
defence,  and  reported  in  favor  of  the  plaintiff  for  $800  damages,  for 
which  judgment  was  entered  and  affirmed  at  a  general  term.  The 
case  was  submitted  on  printed  briefs. 

Denio,  J.  The  position  that  the  defendants  are  not  responsible, 
because  the  misconduct  of  their  servants  was  wilful  and  not  negli- 
gent, cannot  be  sustained.  The  action  is  not  brought  on  account  of 
any  injury  done  to  the  property  by  the  engineers,  but  for  an  alleged 
non-performance  of  a  duty  which  the  defendants  owed  to  the  owner 
of  the  property.  If  their  inability  to  perform  Avas  occasioned  by 
the  default  of  persons  for  whose  conduct  they  are  responsible,  they 
must  answer  for  the  consequences  without  regard  to  the  motives  of 
those  persons.  In  the  common  case  of  a  contract  for  services,  as 
for  building  a  house,  which  the  builder  had  been  unable  to  perform 
because  his  workmen  had  abandoned  his  service,  proof  that  their 
conduct  was  wilful  and  every  way  unjustifiable  would  not  give  the 
party  injured  an  action  against  them,  nor  would  it  excuse  the  party 
who  had  made  the  contract.  A  similar  point  was  taken  in  Weed  v. 
The  Panama  Railroad  Company,  17  1ST.  Y.  362,  where  the  miscon- 
duct of  the  defendants'  servants  in  detaining  a  train  of  cars  was 
active,  but  it  was  held  not  to  furnish  any  answer  to  the  action  for 
the  detention.  The  cases  in  which  it  has  been  held  that  if  a  ser- 
vant, while  generally  engaged  in  his  master's  business,  wilfully 
commit  a  trespass,  as  by  intentionally  driving  his  master's  carriage 
against  the  carriage  of  another  person,  the  master  is  not  liable,  have 
no  application  to  the  present  case. 

It  has  been  repeatedly  held,  and  may  be  taken  as  settled  law,  that 
a  carrier  is  not  under  the  same  absolute  obligation  to  carry  the  goods 
intrusted  to  him  in  the  usual  time  which  he  is  to  deliver  them 
ultimately  at  their  destination.     Conger  v.  The  Hudson  River  R.  R 


436  CARRIERS    OF   GOODS. 

Co.,  6  Duer,  375;  Wibert  v.  The  N.  Y.  &  Erie  R.  R.  Co.,  2  Kern. 
245.  But  in  the  absence  of  a  legal  excuse,  he  is  answerable  for 
any  delay  to  forward  them  in  the  time  which  is  ordinarily  required 
for  transportation,  by  the  kind  of  conveyance  which  he  uses.  In 
the  case  referred  to  from  Kernan's  Reports,  we  held  that  where  a 
railroad  was  fully  equipped  with  engines  and  freight  carriages,  but 
more  property  was  offered  at  a  particular  point  than  could  be  sent 
forward  at  once,  the  delay  was  justifiable,  provided  no  unfair  prefer- 
ence was  given  to  other  freight  over  that  of  the  plaintiff.  In  the 
present  case,  the  excuse  arises  wholly  out  of  the  misconduct  of  the 
defendants'  servants  who  wrongfully  refused  to  perform  their  duty, 
and  thus  deprived  the  defendants,  for  the  time,  of  the  ability  to 
send  forward  the  property ;  and  the  question  is  whether  the  defend- 
ants' case  can  be  separated  from  that  of  the  engineers,  so  that  it  can 
be  held  that  though  the  latter  were  culpable,  their  employers,  the 
defendants,  were  without  fault,  and  consequently  not  responsible  to 
the  plaintiff.  This  involves  a  consideration  of  the  legal  effect  of 
the  relations  which  exist  between  these  several  parties.  In  the  first 
place,  there  was  no  privity  between  the  plaintiff  and  the  engineers. 
The  latter  owed  no  duty  to  the  former  which  the  law  can  recognize. 
If  they  had  committed  a  positive  tort  or  trespass  upon  the  property, 
the  owner  might  pass  by  the  employers  and  hold  them  responsible, 
but  for  a  nonfeasance,  or  simple  neglect  of  duty,  they  were  only 
answerable  to  their  employers.  The  maxim  in  such  cases  is  respon- 
deat superior.  Story  on  Agency,  §  309;  Denny  v.  The  Manhattan  Co., 
2  Denio,  115;  s.  c.  in  error,  5  id.  639.  Although  the  nature  of 
the  contract  between  the  railroad  company  and  the  engineers  is  not 
disclosed  in  the  finding,  it  is  quite  improbable  that  it  was  such  that 
the  latter  might  throw  up  their  employment  upon  two  days'  notice 
without  any  legal  cause.  If  it  were  of  that  character,  the  liability, 
moral  as  well  as  legal,  would  rest  upon  the  defendants,  for  in  that 
case  they  would  have  neglected  a  most  ordinary  precaution  for  secur- 
ing the  continuous  running  of  their  trains.  Assuming  then  that 
abandoning  their  work  was  a  breach  of  contract  on  the  part  of  the 
engineers,  they  by  that  act  became  responsible  to  the  defendants  for 
all  its  direct  consequences.  The  case  therefore  is  one  in  which  the 
actual  delinquents,  through  whose  fault  the  injury  was  sustained, 
were  responsible  to  the  defendants,  but  were  not  responsible  to  the 
plaintiff.  This  shows  the  equity  of  the  rule,  which  holds  the  mas- 
ter or  employer  answerable  in  such  cases.  Its  policy  is  not  less 
apparent.  Those  who  intrust  their  goods  to  carriers  have  no  means 
of  ascertaining  the  character  or  disposition  of  their  subordinate 
agents  or  servants;  they  have  no  agency  in  their  selection,  and  no 
control  over  their  actions.  In  the  case  of  a  loss  by  the  misconduct 
of  a  servant,  the  party  injured  has  no  means  of  ascertaining  whether 
due  caution  was  exercised  by  the  master  in  employing  him,  or  pru- 
dence in  retaining  him;  and  in  the  case  of  a  controversy  between 


CARRIERS   LIABILITY. 


137 


the  master  and  the  servant  as  to  which  was  the  real  delinquent,  the 
owner  of  the  property  must  generally  be  without  the  necessary  evi- 
dence to  charge  the  liability  upon  the  master.  The  rule  which  the 
law  has  adopted,  by  which  the  master  is  held  responsible  for  the 
acts  of  his  servants,  is  the  one  best  calculated  to  secure  the  observ- 
ance of  good  faith  on  the  part  of  persons  intrusted  with  the  property 
of  others.  The  motive  of  self-interest  is  the  only  one  adequate  to 
secure  the  highest  degree  of  caution  and  vigilance  by  the  master. 
The  principle  itself  is  extremely  well  settled.  Story  on  Agency, 
§  452;  2  Kent  Com.  259;  Harlow  v.  Humiston,  6  Cow.  189;  Ellis 
v.  Turner,  8  Term  R.  531. 

I  cannot  see  anything  in  the  circumstances  of  the  defendants  to 
take  the  case  out  of  the  rule.  Being  a  corporation,  all  their  business 
must  necessarily  be  conducted  by  agents,  and  if  they  are  not  liable 
for  their  acts  and  omissions,  parties  dealing  with  them  have  no 
remedy  at  all.  A  railroad  corporation  is  no  doubt  peculiarly  ex- 
posed to  loss  from  the  misconduct  of  its  engineers ;  and  in  the  present 
case  it  does  not  appear  that  the  slightest  blame  can  attach  to  any  of 
the  superior  officers  of  the  company.  Still  the  property  intrusted 
to  the  defendants  to  carry  has  been  lost  from  a  failure  on  their  part 
to  perform  the  duty  with  which  they  were  charged,  and  the  only 
answer  which  they  are  able  to  make  to  the  demand  for  compensa- 
tion is  that  the  failure  was  caused  by  the  misconduct  of  their  ser- 
vants. This  we  have  seen  cannot  avail  them  as  a  defence.  I  have 
looked  into  the  exceptions  to  the  rulings  of  the  judge  upon  the  trial, 
and  think  those  rulings  were  in  both  the  instances  where  exceptions 
were  taken  entirely  correct. 

The  judgment  of  the  Supreme  Court  must  be  affirmed. 


GEISMER  v.    LAKE   SHORE,    etc.    R.    CO.,    Appellant. 

102  N.  Y.  563.     1886. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  fifth  judicial  department,  entered  upon  an  order  made  at  the 
October  Term,  1884,  which  overruled  defendant's  exceptions  and 
directed  judgment  for  plaintiff  on  a  verdict  (reported  below,  34 
Hun,  50). 

This  action  was  brought  to  recover  damages  for  alleged  negligence 
on  the  part  of  defendant  in  the  performance  of  a  contract  for  trans- 
portation of  livestock. 

Eakl,  J.  We  are  of  opinion  that  the  learned  trial  judge  fell  into 
error  as  to  rules  of  law  of  vital  and  controlling  importance  in  the 
disposition  of  this  case. 


438  CARRIERS   OF   GOODS. 

A  railroad  carrier  stands  upon  the  same  footing  as  other  carriers, 
and  may  excuse  delay  in  the  delivery  of  goods  by  accident  or  mis- 
fortune not  inevitable  or  produced  by  the  act  of  God.  All  that  can 
be  required  of  it  in  any  emergency  is  that  it  shall  exercise  due  care 
and  diligence  to  guard  against  delay  and  to  forward  the  goods  to 
their  destination ;  and  so  it  has  been  uniformly  decided.  Wibert  v. 
N.  Y.  &  Erie  Railroad  Co.,  12  N.  Y.  245;  Blackstock  v.  N.  Y.  & 
Erie  Railroad  Co.,  20  id.  48  [434]. 

In  the  absence  of  special  contract  there  is  no  absolute  duty  resting 
upon  a  railroad  carrier  to  deliver  the  goods  intrusted  to  it  within 
what,  under  ordinary  circumstances,  would  be  a  reasonable  time. 
Not  only  storms  and  floods  and  other  natural  causes  may  excuse 
delay,  but  the  conduct  of  men  may  also  do  so.  An  incendiary  may 
burn  down  a  bridge,  a  mob  may  tear  up  the  tracks  or  disable  the 
rolling  stock  or  interpose  irresistible  force  or  overpowering  intimi- 
dation, and  the  only  duty  resting  upon  the  carrier,  not  otherwise  in 
fault,  is  to  use  reasonable  efforts  and  due  diligence  to  overcome 
the  obstacles  thus  interposed  and  to  forward  the  goods  to  their 
destination. 

While  the  court  below  conceded  this  to  be  the  general  rule,  it  did 
not  give  the  defendant  the  benefit  of  it  because  it  held  that  the  men 
engaged  in  the  violent  and  riotous  resistance  to  the  defendant  were 
its  employees  for  whose  conduct  it  was  responsible,  and  in  that  hold- 
ing was  the  fundamental  error  committed  by  it.  It  is  true  that 
these  men  had  been  in  the  employment  of  the  defendant.  But  they 
left  and  abandoned  that  employment.  They  ceased  to  be  in  its  ser- 
vice or  in  any  sense  its  agents,  for  whose  conduct  it  was  responsible. 
They  not  only  refused  to  obey  its  orders  or  to  render  it  any  service, 
but  they  wilfully  arrayed  themselves  in  positive  hostility  against  it, 
and  intimidated  and  defeated  the  efforts  of  employees  who  were  will- 
in«-  to  serve  it.  They  became  a  mob  of  vicious  law-breakers  to  be 
dealt  with  by  the  government,  whose  duty  it  was,  by  the  use  of 
adequate  force,  to  restore  order,  enforce  proper  respect  for  private 
property  and  private  rights  and  obedience  to  law.  If  they  had 
burned  down  bridges,  torn  up  tracks,  or  gone  into  passenger  cars 
and  assaulted  passengers,  upon  what  principle  could  it  be  held  that 
as  to  such  acts  they  were  the  employees  of  the  defendant  for  whom 
it  was  responsible?  If  they  had  sued  the  defendant  for  wages  for 
the  eleven  days  when  they  were  thus  engaged  in  blocking  its  busi- 
ness, no  one  will  claim  that  they  could  have  recovered. 

It  matters  not,  if  it  be  true,  that  the  strike  was  conceived  and 
organized  while  the  strikers  were  in  the  employment  of  the  defend- 
ant. In  doing  that,  they  were  not  in  its  service  or  seeking  to  pro- 
mote its  interests  or  to  discharge  any  duty  they  owed  it ;  but  they  were 
engaged  in  a  matter  entirely  outside  of  their  employment  and  seek- 
ing their  own  ends  and  not  the  interests  of  the  defendant.  The 
mischief  did   not  come  from  the  strike  —  from  the   refusal  of  the 


CARRIERS    LIABILITY.  439 

employees   to  work,  but   from    their  violent  and  unlawful  conduct 
after  they  had  abandoned  the  service  of  the  defendant. 

Here  upon  the  facts,  which  we  must  assume  to  be  true,  there  was 
no  default  on  the  part  of  the  defendant.  It  had  employees  who  were 
ready  and  willing  to  manage  its  train  and  carry  forward  the  stock, 
and  thus  perforin  its  contract  and  discharge  its  duty;  but  they  were 
prevented  by  mob  violence  which  the  defendant  could  not  by  reason- 
able efforts  overcome.  That  under  such  circumstances  the  delay 
was  excused  has  been  held  in  several  cases  quite  analogous  to  this 
which  are  entitled  to  much  respect  as  authorities.  Pittsburg  &  C. 
R"  R.  Co.  17.  Hogen,  84  111.  36;  Pittsburg,  C.  W.  L.  R.  Co.  v. 
Hallowell,  65  Ind.  188;  Bennett  v.  L.  S.  &  M.  S.  R.  R.  Co.,  6  Am. 
&  Eng.  R.  Cas.  391;  I.'&  W.  L.  R.  R.  Co.  v.  Juntzen,  10  Bardwell, 
295. 

The  cases  of  Weed  ».  Panama  R.  R.  Co.,  17  N.  Y.  362,  and 
Blackstock  v.  K  Y.  &Erie  R.  R.  Co.,  lBosw.  77;  affirmed,  20  N.  Y. 
48  [434],  do  not  sustain  the  plaintiff's  contention  here.  If  in  this 
case  the  employees  of  the  defendant  had  simply  refused  to  dis- 
charge their  duties,  or  to  work,  or  had  suddenly  abandoned  its  ser- 
vice, offering  no  violence,  and  causing  no  forcible  obstruction  to  its 
business,  those  authorities  could  have  been  cited  for  the  maintenance 
of  an  action  upon  principles  stated  in  the  opinions  of  those  cases. 

Judgment  reversed.1 


DAVIS   v.    GARRETT. 
Common  Pleas.     6  Bing.  716.     1830. 

The  declaration  stated,  that  theretofore,  to  wit,  on  22d  of  Jan- 
uary, 1829,  at  London,  in  the  parish  of  St.  Mary-le-Bow,  in  the 
ward  of  Cheap,  the  plaintiff,  at  the  special  instance  and  request  of 
the  defendant,  delivered  to  the  defendant  on  board  a  certain  barge 
or  vessel  of  the  defendant  called  the  "Safety,"  and  the  defendant 
then  and  there  had  and  received  in  and  on  board  of  the  said  barge 
or  vessel  from  the  plaintiff  a  large  quantity,  to  wit,  114|-  tons  of 
lime  of  the  plaintiff  of  great  value,  to  wit,  of  the  value  of  £100,  to 

1  Where  employees  suddenly  refuse  to  work,  and  are  discharged,  and  delay  results 
from  the  failure  of  the  carrier  to  supply  promptly  their  places,  such  delay  is  attrib- 
utable to  the  misconduct  of  the  employees  in  refusing  to  do  their  duty,  and  this 
misconduct  in  such  case  is  justly  considered  the  proximate  cause  of  the  delay  ;  but 
when  the  places  of  the  recusant  employees  are  promptly  supplied  by  other  competent 
men,  and  the  "strikers"  then  prevent  the  new  employees  from  doing  duty  by  lawless 
and  irresistible  violence,  the  delay  resulting  solely  from  this  cause  is  not  attributable 
to  the  misconduct  of  employees,  but  arises  from  the  misconduct  of  persons  for  whose 
acts  the  carrier  is  in  no  manner  responsible.  Per  Dickey,  J.,  in  Pittsburg  &e.  R  Co. 
v.  Hazeu,  84  111.  36. 


440  CARRIERS    OF   GOODS. 

be  by  the  defendant  carried  and  conveyed  in  and  on  board  the  said 
barge  or  vessel  from  a  certain  place,  to  wit,  Bewly  Cliff  in  the  county 
of  Kent,  to  the  Regent's  Canal  in  the  county  of  Middlesex,  the  act 
of  God,  the  king's  enemies,  fire,  and  all  and  every  other  dangers 
and  accidents  of  the  seas,  rivers,  and  navigation,  of  what  nature  or 
kind  soever  excepted,  for  certain  reasonable  reward  to  be  therefore 
paid  by  the  plaintiff  to  the  defendant:  that  the  said  barge  or  vessel 
afterwards,  to  wit,  on,   etc.,  at,  etc.,  departed  and  set  sail  on  the 
intended  voyage,  then  and  there  having  the  said  lime  on  board  of 
the  same  to  be  carried  and  conveyed  as  aforesaid,  except  as  afore- 
said, and  it  thereby  then  and  there  became  and  was  the  duty  of  the 
defendant  to  have  carried  and  conveyed  the  said  lime  on  board  of 
the  said  barge  or  vessel  from  Bewly  Cliff  to  the  Regent's  Canal,  the 
act  of  God,  and  such  other  matters  and  things   excepted  as  were 
above  mentioned  to  have  been  excepted  by  and  according  to  the 
direct,  usual,  and  customary  way,  course,  and  passage,  without  any 
voluntary  and  unnecessary  deviation  or  departure  from,  or  delay  or 
hindrance  in  the  same:  but  the  defendant,  not  regarding  his  duty  in 
that  behalf,  but  contriving  and  wrongfully  intending  to  injure  and 
prejudice  the  plaintiff  in  that  respect,  did  not  carry  or  convey  the 
said  lime  on  board  of  the  barge  or  vessel  from  Bewly  Cliff  aforesaid 
to  the  Regent's  Canal,  although  not  prevented  by  the  acts,  matters, 
or  things  excepted  as  aforesaid,  or  any  of  them,  by  and  according  to 
the  direct,  usual,  customary  way  and  passage,  without  any  volun- 
tary and  unnecessary  deviation  or  departure  from,  or  delay  or  hin- 
drance in  the  same,  but  on   the  contrary  thereof,  afterwards,  and 
before  the  arrival  of  the  said  barge  or  vessel  as  aforesaid  at  the 
Regent's  Canal,  the  defendant  by  one  John  Town,  the  master  of  the 
said  barge  or  vessel,  and  the  agent  of  the  defendant  in  the  behalf, 
to  wit,  at,  etc.,  without  the  knowledge  and  against  the  will  of  the 
plaintiff,  voluntarily  and  unnecessarily  deviated  and  departed  from 
and  out  of  such  usual  and  customary  way,  course,  and  passage,  with 
the  said  barge  or  vessel  so  having  the  said  lime  on  board  of   the 
same,  to  certain  parts  out  of  such  usual  and  customary  course  and 
passage,  to  wit,  to  a  certain  place  called  the  East  Swale,  and  to  a 
certain  place  called  Whitstable  Bay,  and  did  then  and  there  volun- 
tarily and  unnecessarily  carry  and  navigate  the  said  barge  or  vessel 
with  the  lime  on  board  thereof  as  aforesaid  to  the  said  parts  out  of 
such  usual  and  customary  course  and  passage  as  aforesaid,  and  delay 
and  detain  the  said  last-mentioned  barge  or  vessel  with  the  lime  on 
board  thereof,  for  a  long  space  of  time,  to  wit,  for  the  space  of 
twenty-four  hours  then  next  following :  and  the  said  barge  or  vessel 
so  having  the  said  lime  on  board  of  the  same,  was  by  reason  of  such 
deviation  and  departure,  and  delay  and  detention  out  of  such  usual 
and  customary  course  and   passage,  and  before  her  arrival  at  the 
Regent's  Canal  aforesaid,  to  wit,  on,  etc.,  at,  etc.,  exposed  to  and 
assailed  by  a  great  storm  and  great  and  heavy  sea,  and  was  thereby 


CARRIER  S   LIABILITY.  441 

then  and  there  wrecked,  shattered,  and  broken,  and  by  means  thereof 
the  said  lime  of  the  plaintiff  so  on  board  the  said  barge  or  vessel  as 
aforesaid,  became  and  was  injured,  burned,  destroyed,  and  wholly 
lost  to  the  plaintiff,  to  wit,  at,  etc.,  whereby  the  plaintiff  lost  divers 
great  gains,  profits,  and  emoluments,  amounting  to  a  large  sum  of 
money,  to  wit,  the  sum  of  £50,  which  he  might  and  otherwise  would 
have  made  thereby,  to  wit,  at,  etc. 

At  the  trial  before  Tindal,  C.  J.,  London  sittings  after  Michael-. 
mas  Term  last,  it  appeared  that  the  master  of  the  defendant's  barge 
had  deviated  from  the  usual  and  customary  course  of  the  voyage 
mentioned  in  the  declaration,  without  any  justifiable  cause;  and 
that  afterwards,  and  whilst  such  barge  was  out  of  her  course,  in 
consequence  of  violent  and  tempestuous  weather,  the  sea  communi- 
cated with  the  lime,  which  thereby  became  heated,  and  the  barge 
caught  fire;  and  the  master  was  compelled,  for  the  preservation  of 
himself  and  the  crew,  to  run  the  barge  on  shore,  where  both  the 
lime  and  the  barge  were  entirely  lost. 

A  verdict  having  been  found  for  the  plaintiff, 

Taddy,  Sergt.,  obtained  a  rule  nisi  for  a  new  trial,  or  to  arrest  the 
judgment. 

Tindal,  C.  J.  There  are  two  points  for  the  determination  of  the 
court  upon  this  rule:  first,  whether  the  damage  sustained  by  the 
plaintiff  was  so  proximate  to  the  wrongful  act  of  the  defendant  as 
to  form  the  subject  of  an  action;  and,  secondly,  whether  the  decla- 
ration is  sufficient  to  support  the  judgment  of  the  court  for  the 
plaintiff. 

As  to  the  first  point  it  appeared  upon  the  evidence  that  the 
master  of  the  defendant's  barge  had  deviated  from  the  usual  and 
customary  course  of  the  voyage  mentioned  in  the  declaration  with- 
out any  justifiable  cause;  and  that  afterwards,  and  whilst  such  barge 
was  out  of  her  course,  in  consequence  of  stormy  and  tempestuous 
weather,  the  sea  communicated  with  the  lime,  which  thereby  became 
heated,  and  the  barge  caught  fire,  and  the  master  was  compelled  for 
the  preservation  of  himself  and  the  crew  to  run  the  barge  on  shore, 
where  both  the  lime  and  the  barge  were  entirely  lost. 

Now  the  first  objection  on  the  part  of  the  defendant  is  not  rested, 
as  indeed  it  could  not  be  rested,  on  the  particular  circumstances 
which  accompanied  the  destruction  of  the  barge;  for  it  is  obvious 
that  the  legal  consequences  must  be  the  same,  whether  the  loss  was 
immediately,  by  the  sinking  of  the  barge  at  once  by  a  heavy  sea, 
when  she  was  out  of  her  direct  and  usual  course,  or  whether  it  hap- 
pened at  the  same  place,  not  in  consequence  of  an  immediate  death's 
wound,  but  by  a  connected  chain  of  causes  producing  the  same  ulti- 
mate event.  It  is  only  a  variation  in  the  precise  mode  by  which  the 
vessel  was  destroyed,  which  variation  will  necessarily  occur  in  each 
individual  case. 

But  the  objection  taken  is,  that  there  is  no  natural  or  necessary 


4:42  CARKIERS    OF    GOODS. 

connection  between  the  wrong  of  the  master  in  taking  the  barge  out 
of  its  proper  course,  and  the  loss  itself;  for  that  the  same  loss  might 
have  been  occasioned  by  the  very  same  tempest,  if  the  barge  had 
proceeded  in  her  direct  course. 

But  if  this  argument  were  to  prevail,  the  deviation  of  the  master, 
which  is  undoubtedly  a  ground  of  action  against  the  owner,  would 
never,  or  only  under  very  peculiar  circumstances,  entitle  the  plain- 
tiff to  recover.  For  if  a  ship  is  captured  in  the  course  of  deviation, 
no  one  can  be  certain  that  she  might  not  have  been  captured  if  in 
her  proper  course.  And  yet,  in  Parker  v.  James,  4  Campb.  112, 
where  the  ship  was  captured  whilst  in  the  act  of  deviation,  no  such 
ground  of  defence  was  even  suggested.  Or,  again,  if  the  ship  strikes 
against  a  rock,  or  perishes  by  storm  in  the  one  course,  no  one  can 
predicate  that  she  might  not  equally  have  struck  upon  another  rock, 
or  met  with  the  same  or  another  storm  if  pursuing  her  right  and 
ordinary  voyage. 

The  same  answer  might  be  attempted  to  an  action  against  a 
defendant  who  had,  by  mistake,  forwarded  a  parcel  by  the  wrong 
conveyance,  and  a  loss  had  thereby  ensued ;  and  yet  the  defendant 
in  that  case  would  undoubtedly  be  liable. 

But  we  think  the  real  answer  to  the  objection  is,  that  no  wrong- 
doer can  be  allowed  to  apportion  or  qualify  his  own  wrong ;  and  that 
as  a  loss  has  actually  happened  whilst  his  wrongful  act  was  in  oper- 
ation and  force,  and  which  is  attributable  to  his  wrongful  act,  he 
cannot  set  up  as  an  answer  to  the  action  the  bare  possibility  of  a 
loss,  if  his  wrongful  act  had  never  been  done.  It  might  admit  of  a 
different  construction  if  he  could  show,  not  only  that  the  same  loss 
might  have  happened,  but  that  it  must  have  happened  if  the  act 
complained  of  had  not  been  done;  but  there  is  no  evidence  to  that 
extent  in  the  present  case. 

Upon  the  objection  taken  in  arrest  of  judgment,  the  defendant 
relies  on  the  authority  of  the  case  of  Max  v.  Roberts.  The  first 
ground  of  objection  upon  which  the  judgment  for  the  defendant  in 
that  case  was  affirmed  is  entirely  removed  in  the  present  case.  For 
in  this  declaration  it  is  distinctly  alleged  that  the  defendant  had 
and  received  the  lime  in  and  on  board  of  his  barge,  to  be  by  him 
carried  and  conveyed  on  the  voyage  in  question. 

As  to  the  second  objection  mentioned  by  the  learned  Lord,  in 
giving  the  judgment  in  that  case,  viz.,  that  there  is  no  allegation 
in  the  declaration  that  there  was  an  undertaking  to  carry  directly  to 
Waterford,  it  is  to  be  observed,  that  this  is  mentioned  as  an  addi- 
tional ground  for  the  judgment  of  the  Court,  after  one  in  which  it 
may  fairly  be  inferred  from  the  language  of  the  Chief  Justice  that 
all  the  judges  had  agreed;  and  which  first  objection  appears  to  us 
amply  sufficient  to  support  the  judgment  of  the  Court.  We  cannot, 
therefore,  give  to  that  second  reason  the  same  weight  as  if  it  were 
the  only  ground  of  the  judgment  of  the  Court.     And,  at  all  events, 


CARRIER'S   LIABILITY.  j.43 

we  think  there  is  a  distinction  between  the  language  of  this  record 
and  that  of  the  case  referred  to.  In  the  case  cited,  the  allegation 
was,  that  it  was  the  duty  of  the  defendant  to  carry  the  goods  directly 
to  Waterford;  but  here  the  allegation  is,  "that  it  was  his  duty  to 
carry  the  lime  by  and  according  to  the  direct,  usual,  and  customary 
way,  course,  and  passage,  without  any  voluntary  and  unnecessary 
deviation  and  departure." 

The  words  usual  and  customary  being  added  to  the  word  direct, 
more  particularly  when  the  breach  is  alleged  in  "unnecessarily 
deviating  from  the  usual  and  customary  way,"  must  be  held  to 
qualify  the  meaning  of  the  word  direct,  and  substantially  to  signify 
that  the  vessel  should  proceed  in  the  course  usually  and  customarily 
observed  in  that  her  voyage. 

And  we  cannot  but  think  that  the  law  does  imply  a  duty  in  the 
owner  of  a  vessel,  whether  a  general  ship  or  hired  for  the  special 
purpose  of  the  voyage,  to  proceed  without  unnecessary  deviation  in 
the  usual  and  customary  course. 

We  therefore  think  the  rule  should  be  discharged,  and  that  judg- 
ment should  be  given  for  the  plaintiff. 

Ride  discharged. 


CONSTABLE   v.   NATIONAL   STEAMSHIP   CO. 
154  U.  S.  51.     1894. 

Mr.  Justice  Browx.  This  case  involves  the  liability  of  a  steam- 
ship company  for  the  loss  by  fire  of  a  consignment  of  goods  unloaded 
without  personal  notice  to  the  consignee  upon  the  wharf  of  a  com- 
pany other  than  the  one  owning  the  vessel. 

By  the  Limited  Liability  Act,  Bev.  Stat.  4282,  no  ship-owner  is 
liable  to  answer  for  the  loss  of  any  merchandise  shipped  upon  his 
vessel  by  reason  of  any  fire  "happening  to  or  on  board  the  vessel, 
unless  such  fire  is  caused  by  the  design  or  neglect  of  such  owner," 
and  in  the  case  of  The  Scotland,  105  IT.  S.  24,  the  exemptions  and 
limitations  of  this  act  were  held  to  apply  to  foreign  as  well  as 
domestic  vessels.  A  similar  exemption  from  fire  happening  with- 
out the  "fault  or  privity"  of  the  owner  is  contained  in  the  British 
Merchants'  Shipping  Act  of  1854,  17  and  18  Vict.  c.  104,  sec.  503. 
The  bill  of  lading  in  this  case  also  contains  exemptions  of  liability 
from  loss  caused  by  fire  "before  loading  in  the  ship  or  after  unload- 
ing." There  is  no  comma  after  the  word  "loading"  or  "ship,"  but 
obviously  it  should  be  read  as  if  there  were.  In  view  of  the  fact 
that,  under  no  aspect  of  the  case,  would  the  owner  of  the  vessel  be 
liable  for  the  consequence  of  any  fire  occurring  on  board  of  such  a 
vessel  without  his  fault,  and  that  an  attempt  is  made  in  this  case 


444  CARRIERS   OF   GOODS. 

to  impose  the  liability,  not  of  a  warehouseman,  but  of  a  common 
carrier  and  insurer  against  fire,  after  the  contract  of  carriage  has 
been  fully  performed,  it  would  seem  that  such  liability  ought  not 
to  be  raised  out  of  the  contract  in  this  case  except  upon  clear  evi- 
dence, and  for  the  most  cogent  reasons.     The  liability  of  the  com- 
pany for  the  goods  while  upon  the  wharf  is  a  mere  incident  to  its 
liability  for  them  while  upon  the  ship;  and  if  the  liability  is  more 
extensive  under  the  incidental  contract  of  storage  than  it  was  under 
the  principal  contract  of  carriage  it  is  an  exception  to  the  general 
rule  that  the  incidental  liability  of  a  contracting  party  is  not  broader 
than  his  liability  upon  the  principal  contract. 
. 
It  is  claimed,  however,  that  the  berthing  of  this  ship  at  a  pier 
other  than  her  own  was  in  legal  effect  a  deviation,  which  rendered 
the  company  an  insurer  of  the  cargo  discharged  at  such  pier  without 
notice,  until  its  actual  delivery  to  the  consignee.     In  the  law  mari- 
time a  deviation  is  defined  as  a  "  voluntary  departure  without  neces- 
sity, or  any  reasonable  cause,  from  the  regular  and  usual  course  of 
the  ship  insured."     1  Bouvier's  Law  Diet.  417;  Hostetter  v.  Park, 
137  U.  S.  30, 40  ;  Davis  v.  Garrett,  6  Bing.  716  [439] ;  Williams  v.  Grant, 
1  Conn.  487;  as,  for  instance,  where  a  ship  bound  from  New  York 
to  Norwich,  Conn.,  went  outside  of  Long  Island,  and  lost  her  cargo 
in  a  storm,  Crosby  v.    Fitch,  12  Conn.  410;  or  where  a  carrier  is 
guilty  of  unnecessary  delay  in  pursuing  a  voyage  or  in  the  transpor- 
tation of  goods  by  rail.     Michaels  v.  N.  Y.  Central  Kailroad,  30 
N.  Y.  564.     But,  if  such  deviation   be  a  customary  incident  of  the 
voyage,  and  according  to  the  known  usage  of  trade,  it  neither  avoids 
a  policy  of  insurance,  nor  subjects  the  carrier  to  the  responsibility 
of  an  insurer.     Oliver  v.  Maryland  Ins.  Co.,  7  Cranch,  487;  Colum- 
bian Ins.  Co.  v.  Catlett,  12  Wheat.  383.     In  Hostetter  v.  Park,  137 
IT.  S.  30,  it  was  held  to  be  no  deviation,  in  the  Pittsburg  and  New 
Orleans  barge-trade,  to  land  and  tie  up  a  tow  of  barges,  and  detach 
from  the  tow  such  barge  or  barges  as  were  designated  to  take  on 
cargo  en  route,  and  to  tow  the  same  to  the  several  points  where  the 
cargo  might  be  stored,  it  having  been  shown  that  such  delays  were 
within   the  general  and   established   usage   of   the   trade.     So,    in 
Gracie  v.  Marine  Ins.  Co.,  8  Cranch,  75,  it  was  held  to  be  no  devia- 
tion to  land  goods  at  a  lazaretto  or  quarantine  station,  if  the  usage 
of  the  trade  permitted  it,  though  by  the  bill  of  lading  the  goods 
were  "to  be  safely  landed  at  Leghorn."     See  also  Phelps  v.  Hill, 
1  Q.  B.  D.  (1891),  605. 

•         •••••• 

Upon  the  whole  case  we  are  of  opinion :  — 

1.  That  the  stipulation  in  the  bill  of  lading  that  respondent 
should  not  be  liable  for  a  fire  happening  after  unloading  the  cargo 
was  reasonable  and  valid. 

2.  That  the  discharge  of  the  cargo  at  the  Inman  pier  was  not,  in 


carrier's  liability.  445 

the  eye  of  the  law,  a  deviation  such  as  to  render  the  carrier  au 
insurer  of  the  goods  so  unladen. 

•  ■•■••■•••• 

The  decree  of  the  Circuit  Court  is  therefore  affirmed. 


STEAMBOAT   LYNX  v.    KING. 

12  Mo.  272.     1848. 

King  and  Fisher  brought  their  action  against  the  "S.  B.  Lynx," 
on  a  contract  of  affreightment.  A  parcel  of  wheat  (880  sacks),  was 
shipped  on  board  the  "  Lynx  "  and  her  barges,  from  a  place  in  Illinois, 
above  the  lower  rapids,  consigned  to  K.  &  F.  at  St.  Louis.  The 
barge  that  contained  the  wheat  was  brought  down  in  tow  by  the 
"Lynx,"  to  the  head  of  the  rapids.  The  water  was  too  low  for  the 
boat  to  descend  the  rapids  with  her  barges  in  tow,  and  therefore 
the  barge  which  contained  the  wheat  (and  other  wheat  belonging  to 
others) ,  after  being  lightened  by  putting  200  sacks  of  wheat  on  board 
of  the  "Lynx,"  was  taken  down  to  the  foot  of  the  rapids  at  Keokuk 
in  safety,  and  in  the  manner  accustomed  there,  and  was  moored  there 
in  the  accustomed  place,  and  was  stanch  and  well  manned.  In  the 
after  part  of  the  same  day,  while  the  barge  was  waiting  for  the 
"Lynx"  to  descend  the  rapids,  a  violent  storm  arose,  and  forced  a 
great  quantity  of  the  water  of  the  river  over  the  gunwale  and  into 
the  barge,  by  which  a  portion  of  the  wheat  was  wet.  Every  effort 
was  made  by  the  crew  to  protect  the  barge  and  its  cargo  from  the 
storm  and  wetting.  The  hands  worked  all  night,  and  part  of  the 
next  day,  to  free  the  boat  from  water.  The  storm  and  wetting  of 
the  wheat  occurred  in  the  evening  and  night  of  Tuesday,  and  in  the 
afternoon  of  Wednesday,  the  "  Lynx  "  descended  the  rapids,  and  tak- 
ing the  barge  in  tow,  ran  down  to  St.  Louis  in  thirty  hours,  arriv- 
ing there  on  Thursday  evening,  and  delivered  the  freight  on  the 
levee  next  day,  Friday. 

The  time  was  the  latter  part  of  May,  and  the  weather  was  very 
warm  and  damp,  with  frequent  rains. 

The  defendant  moved  the  court  for  the  following  instruction : 

"If  the  jury  believe  from  the  evidence  that  the  wheat  in  question 
was  damaged  by  an  unavoidable  accident  of  the  river,  and  not  by  the 
negligence  of  the  officers  and  crew  of  the  'Lynx,'  they  ought  to  find 
for  the  defendant,  as  to  the  wheat." 

Which  instruction  the  court  refused  to  give,  but  gave  to  the  jury, 
at  the  instance  of  the  plaintiffs,  the  following:  — 

"It  was  the  duty  of  the  defendant  to  use  all  the  means  in  his 
power  to  cause  the  wheat  to  be  dried  after  it  was  wet  by  the  storm ; 


446  CASHIERS    OF    GOODS. 

and  if  the  jury  believe  from  the  evidence  that  the  wheat  might  have 
been  dried  by  the  defendant,  and  he  did  not  do  it,  then  the  defend- 
ant is  liable  for  all  damage  to  the  wheat  by  reason  thereof." 

Under  this  instruction,  there  was  a  verdict  for  the  plaintiffs,  and 
a  motion  for  a  new  trial,  which  was  overruled;  and  the  defendant 
brings  the  case  here  by  a  writ  of  error. 

Naptox,  Judge,  delivered  the  opinion  of  the  court. 
The  only  question  presented  by  this  record  arises  out  of  the 
refusal  of  the  court  to  give  an  instruction  asked  on  behalf  of  the 
boat,  and  the  giving  an  instruction  for  the  plaintiffs  King  &  Fisher. 
The  instruction  given  was  this :  "  It  was  the  duty  of  the  defendant 
to  use  all  the  means  in  his  power  to  cause  the  wheat  to  be  dried 
after  it  was  wet  by  the  storm;  and  if  the  jury  believe  from  the  evi- 
dence that  the  wheat  might  have  been  dried  by  the  defendant,  and 
he  did  not  do  it,  then  the  defendant  is  liable  for  all  damages  to  the 
wheat  by  reason  thereof."  The  instruction  refused  was  as  follows: 
"If  the  jury  believe  that  the  wheat  in  question  was  damaged  by  an 
unavoidable  accident  of  the  river,  and  not  by  the  negligence  of 
the  officers  and  the  crew  of  the  '  Lynx, '  they  ought  to  find  for  the 
defendants." 

The  doctrine  that  a  common  carrier  is  responsible  for  all  losses, 
except  those  occasioned  by  the  act  of  God,  or  the  public  enemy,  or 
such  others  as  are  expressly  excepted  in  the  bill  of  lading,  has  been 
uniformly  maintained  in  this  State.  Dagget  v.  Price  &  Shaw,  3 
Mo.  R.  264.  Experience  has  shown  the  general  results  of  this 
principle  to  be  highly  beneficial  in  the  main,  although  perhaps  its 
application  in  particular  cases  may  have  been  harsh,  and  we  should 
regret  to  see  any  departure  from  it.  But  when  the  carrier  is  held 
responsible,  not  only  for  every  damage  not  occasioned  by  inevitable 
accident,  but  also  for  the  consequences  of  such  accidents  themselves, 
in  cases  where  any  possible  skill  or  labor  could  restore  the  value  of 
the  property  injured,  either  in  whole  or  in  part,  the  doctrine,  it 
strikes  us,  is  carried  to  an  extent  not  warranted  by  the  law,  and  not 
justified  by  reason  or  principle  of  public  policy. 

In  order  to  view  this  matter  in  a  proper  light,  we  must  recur  to 
the  original  and  well-settled  principle,  — a  carrier  is  responsible  for 
all  losses  brought  about  by  his  own  acts,  or  want  of  action,  for  every 
loss  which  could  have  been  prevented  by  human  exertion,  with  the 
exceptions  heretofore  stated.  If  a  tempest  springs  up,  or  damage 
from  any  other  quarter  threatens,  he  is  certainly  to  use  all  proper 
exertions  to  prevent  loss,  and  when  an  injury  has  been  sustained  by 
a  cause  beyond  his  power  to  prevent,  to  use  every  means  to  prevent 
further  injury.  A  damage  may  result  to  the  bailment  after  an 
injury  received  from  inevitable  accident,  which,  although  it  would 
not  have  happened  had  not  the  accident  occurred,  yet  was  not  neces- 
sarily the  result  of  that  accident .  but  might  have  been  avoided  by 
proper  efforts   on  the  part  of  the  carrier.     For  such  damage  he  is 


CARRIER'S   LIABILITY.  447 

undoubtedly  responsible,  and  he  cannot  charge  it  to  the  inevitable 
accident.     It  is  the  result  of  his  own  negligence.     In  the  case  oi 
Charleston  and  Col,  S.  B.  v.  Bason,  1  Harper,  262,  a  boat  grounded 
on   an    inland   passage   to   Charleston,   from  a  reflux    of    the    1 
and  fell  over,  when  the  bilge-water  ran  into  the  cabin  and  injured 
a  box  of  books  belonging  to  the   plaintiff.     Richardson,  J.,  said 
"  Admitting  the  grounding  to  have  been  accidental  and  unavoidable, 
and  the  carrier  in  no  fault,  yet   the  moment  the  boat  heeled,  the 
bilge-water  was  returned  towards  the  stern;  and  this  the  carrier 
was  bound  to  know,  and  remove  the  cargo  there  stored.     The  bo 
in  question,  being  in  the  cabin,  could  easily  have   been   removed. 
The  carrier  is  liable  for  bad  storage  and  default  in  good  keeping. 
The  injury  therefore  was  through  negligence,  and  does  not  come 
within  the  exception  of  the  bill  of  lading." 

The  true  question  then,  in  such  cases,  must  be  —  is  the  damage 
the  result  of  the  accident;  or  is  it,  or  any  portion  of  it,  attributable 
to  the  negligence  of  the  carrier?  The  defendant  was  certainly  not 
responsible  for  the  damage  the  wheat  received  by  the  storm ;  but  if, 
after  the  storm  passed,  the  wheat,  or  any  portion  of  it,  was  suffered 
to  remain  in  the  water,  which  could  have  been  baled  out,  or  when 
it  could  have  been  removed  to  another  part  of  the  boat,  without 
interference  with  the  rights  of  other  shippers  or  passengers,  a  loss 
happening  for  want  of  such  removal  of  the  wheat  or  the  water  is 
properly  chargeable  to  the  boat.  The  loss  thus  produced  is  not  the 
effect  of  the  accident,  but  is  attributable  to  the  negligence  of  the 
officers  and  crew  of  the  boat.  It  is  the  duty  of  the  carrier  to  take 
all  possible  care  of  the  freight  intrusted  to  him.  His  employment 
is  to  transport  goods  and  passengers  with  speed  and  care.  But  to 
impose  upon  him  the  burden  of  repairing  the  effects  of  accidents  for 
which  he  is  not  responsible,  is  requiring  of  him  a  task  he  has  never 
undertaken,  and  for  which,  we  may  presume,  he  has  no  special 
skill.  The  instruction  given  by  the  Court  of  Common  Pleas 
imposed  upon  the  carrier  this  additional  task.  The  officers  of  the 
•'Lynx"  were  required  to  dry  the  wheat  which  had  been  wet  by  a 
storm,  and  to  use  all  possible  means  to  effect  this  object.  It  will 
be  seen  at  once  that  the  task  of  drying  several  thousand  bushels  of 
wheat  is  not  a  light  one,  and  if  all  the  means  which  skill  and 
science  and  labor  can  bestow  are  to  be  used  in  this  process;  the 
business  of  the  common  carrier  is  lost  sight  of. 

Is  the  master  of  the  boat  to  withdraw  his  crew  from  their  ordinary 
employments  in  the  prosecution  of  the  voyage,  and  employ  them  in 
this  onerous  and  tedious  business,  totally  foreign  to  his  general 
duty,  and  utterly  destructive  it  may  be  of  the  interests  of  the 
owners,  insurers,  and  other  shippers?  Would  it  not  be  most  bene- 
ficial to  all  parties  concerned,  that  he  should  proceed  to  his  port  of 
destination  with  all  possible  despatch,  where  the  owners  or  con- 
signees of  the  wheat  could  take  the  necessary  measures  for  restor- 


448  CARRIERS    OF    GOODS. 

ing  it  to  a  sound  condition?  In  the  case  we  have  cited  from  South 
Carolina,  it  was  not  hinted  in  the  opinion  that  it  was  any  part  of 
the  duty  of  the  master  of  the  steamboat  to  dry  the  books  after  they 
had  been  wet  by  the  bilge-water;  but  he  was  held  responsible  for 
not  removing  them  before  the  water  reached  them.  Suppose  the 
case  of  a  large  assortment  of  dry  goods  shipped  on  one  of  our  west- 
ern boats.  The  boat  is  snagged,  and  the  goods  are  damaged  by  the 
water.  Shall  the  master  and  crew  be  obliged  to  open  the  boxes, 
unfold  the  packages  and  pieces,  and  by  means  of  artificial  or  natural 
heat  undertake  the  tedious  process  of  drying  the  goods? 

The  case  of  Bird  v.  Cromwell,  1  Mo.  R.  81,  certainly  goes  very 
far  to  sustain  the  instruction  given  in  this  case.  That  case  was 
decided  in  1821,  and  the  accident  which  gave  rise  to  the  suit 
occurred  on  a  barge  navigating  the  Mississippi  between  New  Orleans 
and  St.  Louis.  A  quantity  of  coffee,  how  much  is  not  stated,  was 
shipped  on  this  barge  at  New  Orleans,  and  became  wet  and  damaged 
by  an  inevitable  accident.  The  court  held  that  it  was  the  duty  of 
the  master  of  the  barge  to  use  all  possible  exertions  to  dry  the 
coffee.  It  is  impossible  to  conjecture,  from  the  opinion,  what 
character  and  degree  of  exertions  the  court  had  in  view  in  giving 
this  instruction.  The  facts  of  the  case  may  have  authorized  a  ver- 
dict against  the  boat  or  her  owners,  but  the  instruction  approved 
by  the  court  in  its  unqualified  sense  was  certainly  imposing  an 
extraordinary  duty  upon  common  carriers.  Much  consideration  is 
no  doubt  due  to  the  character  of  the  navigation  in  which  the  carrier 
is  engaged.  Whilst  the  general  principles  which  govern  the  con- 
duct of  common  carriers  in  ocean  navigation  have  been  applied  to 
the  navigation  of  our  western  waters,  there  are  cases  and  circum- 
stances in  which  the  duties  of  these  respective  classes  of  carriers 
obviously  vary.  So,  also,  the  navigation  of  the  Mississippi  by  keels 
and  barges  in  1820  may  have  been  attended  with  different  duties 
from  those  devolving  on  the  owners  and  officers  of  steamboats  at  the 
present  day.  When  it  required  from  six  weeks  to  two  months  to 
make  the  voyage  from  New  Orleans  to  St.  Louis,  the  officers  and 
crew  of  the  barge  thus  slowly  impelled  by  human  power,  and  having 
no  intermediate  points  of  trade,  may  have  been  subjected  by  the 
custom  of  the  trade  to  a  greater  variety  of  duties  than  would  now 
be  held  to  devolve  upon  the  class  of  navigators  which  has  succeeded 
them.  The  abstract  principle,  however,  avowed  in  this  opinion  of 
Bird  v.  Cromwell,  we  cannot  consider  as  applicable  to  the  circum- 
stances of  the  present  case. 

The  other  judges  concurring,  the  judgment  is  reversed,  and  the 
cause  remanded. 


carrier's  liability.  449 


BRENNISEN  v.  PENNSYLVANIA  R.    CO. 
100  Minn.  102 ;  110  N.  W.  362.     1907. 

Elliott,  J.  Action  to  recover  damages  which  the  plaintiffs  sus- 
tained by  reason  of  the  alleged  negligence  of  the  defendant  in  the 
transportation  of  a  carload  of  strawberries.  The  case  was  tried  by 
the  court  without  a  jury,  and  judgment  ordered  for  the  plaintiffs.  The 
defendant  appealed  from  an  order  denying  the  motion  for  a  new  trial. 

The  court  found  that  on  May  8,  1905,  the  plaintiffs  delivered  to 
the  Atlantic  Coast  Railway  Company,  a  common  carrier,  at  Mt.  Olive, 
North  Carolina,  a  carload  of  strawberries,  all  then  in  good,  sound, 
merchantable  order  and  shipping  condition,  and  consigned  for  trans- 
portation over  the  line  of  the  said  company  as  the  initial  carrier  and 
succeeding  lines,  including  that  of  the  defendant,  the  Pennsylvania 
Railroad  Company,  to  the  city  of  Buffalo,  New  York,  for  delivery  to 
the  plaintiffs  at  that  point.  The  Atlantic  Coast  Railway  Company 
and  other  connecting  lines  extended  to  Sunbury,  Pennsylvania,  and 
there  connected  with  the  Pennsylvania  Railroad  Company,  which 
extended  from  there  to  Buffalo.  The  car  of  strawberries  in  question 
was,  in  the  usual  course  of  business  between  common  carriers  by  rail, 
transported  with  ordinary  care  over  the  line  of  the  initial  carrier  and 
connecting  carriers  to  Sunbury,  where  it  was  delivered  to  defendant 
in  good  condition  and  by  it  accepted  for  carriage  to  Buffalo.  The 
defendant,  in  transporting  the  berries  from  Sunbury  to  Buffalo,  care- 
lessly and  negligently  conducted  itself  as  a  common  carrier,  and  the 
berries,  by  reason  thereof  and  while  in  the  possession  and  under  the 
control  of  the  defendant  as  such  common  carrier,  became  overheated 
and  mouldy,  and  were  thereby  damaged  in  the  sum  of  $349.16. 

The  assignments  of  error  challenge  the  correctness  of  the  findings 

(a)  that  the  berries  were  delivered  to  the  defendant  in  good  condition'; 

(b)  that  the  defendant,  in  transporting  the  berries,  negligently  and 
carelessly  conducted  itself  as  a  common  carrier ;  (c)  that  the  berries 
became  overheated  and  mouldy  while  in  the  possession  of  the  de- 
fendant; and  (d)  that  the  berries  decayed  and  were  damaged  by 
reason  of  the  negligence  of  the  defendant,  and.  in  handling  and  caring 
for  the  same  while  on  the  way  from  Sunbury  to  Buffalo. 

The  findings  to  which  the  appellant  objects  are  really  the  ultimate 
conclusions  to  which  the  court  arrived  from  the  consideration  of  the 
undisputed  facts,  and  the  question  is  whether  these  conclusions  are 
justifiable.  It  appeared  that  the  berries  were  delivered  to  the  initial 
carrier  at  Mt.  Olive,  N.  C,  in  good  condition  on  May  8,  1905 ;  that 
they  were  placed  in  a  refrigerator  car,  which  was  attached  to  the 
train  which  left  Mt.  Olive  at  4 :  53  p.m.  of  that  day,  and  that  after 
passing  through  the  hands  of  various  connecting  carriers  the  car  was 
delivered  to  and  accepted  by  the  defendant  and  carried  to  Buffalo, 
where  the  berries  were  delivered  to  the  respondent  in  bad  condition. 


450  CARRIERS   OF    GOODS. 

This  made  a  prima  facie  case  against  the  defendant  and  cast  the 
burden  upon  it  to  show  that  the  damages  did  not  result  from  any 
cause  for  which  it  was  legally  responsible.  The  rule  is  settled  in 
this  state  and  requires  no  further  discussion.  Fockens  v.  U.  S.  Ex- 
press Co.,  99  Minn.  404,  109  N.  W.  834,  and  cases  there  cited.  That 
this  is  the  prevailing  rule  in  other  states,  see  Chicago  v.  Moss,  60 
Mass.  1003,  45  Am.  428 ;  Jones  v.  St.  Louis,  115  Mo.  App.  232,  91 
S.  W.  158;  Walter  v.  Alabama,  142  Ala.  474,  39  South.  87;  Hutchin- 
son, Car.  (3d  Ed.)  sec.  1354,  where  the  authorities  are  fully  cited. 

The  appellant  contends  that  there  is  no  presumption  of  negligence 
when  the  damage  results  from  the  natural  process  of  decay,  and  that 
the  evidence  showed  that  it  did  all  that  could  be  demanded  of  it  in 
the  care  of  the  fruit. 

The  rule  which  throws  upon  the  last  carrier  the  burden  of  freeing 
itself  from  responsibility  rests  upon  grounds  of  general  convenience 
and  public  policy,  and  places  no  unreasonable  burden  upon  it.  It  is 
true  that  the  presumption,  which  arises  out  of  common  experience 
and  observation,  that  things  once  shown  to  exist  in  a  particular  state 
are  presumed  to  continue  in  that  condition,  has  little  weight  when 
applied  to  perishable  goods,  which  are  known  to  be  subject  to  in- 
evitable decay.  The  time  element  here  becomes  of  primary  impor- 
tance. But  the  process  of  decay  may  be  retarded  or  hastened  by  the 
acts  of  the  carrier,  and  there  is  no  reason  why  the  burden  should  not 
rest  upon  it  to  show  that  it  exercised  due  care  under  all  the  circum- 
stances. The  methods  of  handling  and  transporting  fruit  are  well 
understood,  and  carriers  accept  freight  for  transportation  with  the 
understanding  and  expectation  that  they  will  observe  proper  care,  as 
that  is  understood  by  the  shippers  and  carriers  of  such  articles.  Ex- 
perience shows  that  perishable  fruit,  when  properly  handled,  can  be 
carried  from  the  southern  states  to  the  northern  markets  in  good 
condition.  The  carriers  assert  their  ability  to  do  this,  and  fix  their 
freight  charges  at  rates  which  enable  them  to  provide  proper  modern 
cars  and  expedite  their  progress,  in  order  that  the  fruit  may  reach 
its  destination  before  the  process  of  decay  has  injured  or  destroyed 
its  value.  Carriers  are  not  insurers  in  such  cases ;  but  each  one  is 
charged  with  the  duty  of  exercising  ordinary  care  to  protect  the  fruit 
from  injury  while  it  is  in  its  charge,  and  this  duty  requires  the  carrier 
to  use  such  care  in  order  to  prevent  the  fruit  from  decaying,  as  well 
as  from  being  damaged  by  other  means.  What  that  duty  requires  in 
any  particular  case  must  be  determined  from  the  circumstances  and 
conditions,  the  nature  of  the  goods,  the  obligations  imposed  by  the 
customs  and  usages  of  the  particular  business,  and  the  terms  of  the 
contract  of  shipment. 

The  appellant  contends  that  the  carrier  is  not  under  an  absolute 
duty  to  ice  cars.  It  depends  upon  the  circumstances.  It  is  required 
to  use  proper  care  for  the  protection  and  preservation  of  the  property 
which  it  accepts  for  transportation,  and,  when  a  failure  to  ice  the  cars 


carrier's  liability.  451 

would  amount  to  want  of  such  care,  it  would  be  an  act  of  negligence. 
As  said  in  Merchants  v.  Cornforth,  3  Colo.  280,  25  Am.  757 :  "  When 
a  common  carrier  accepts  for  transportation  in  the  winter  season  to 
ship  half  across  the  continent  delicate  fruits,  the  character  of  his  em- 
ployment, independent  of  any  contract,  clearly  implies  that  he  will 
ship  them  in  such  cars  and  exercise  such  diligence  as  may  be  reason- 
ably necessary  for  their  safe  passage  to  their  destination.  Having 
failed  to  do  this,  he  cannot  escape  liability."  There  can  be  no  ques- 
tion but  that,  under  the  circumstances  of  this  case,  a  failure  to  prop- 
erly ice  the  cars  would  render  the  carrier  liable  for  damages  resulting 
thereby  to  the  fruit.  See  New  York  v.  Cromwell,  98  Va.  227,  35  S.  E. 
444,  49  L.  R.  A.  462,  81  Am.  St.  722 ;  Popham  v.  Barnard,  77  Mo. 
App.  619 ;  Wing  v.  New  York,  1  Hilt.  235 ;  Beard  v.  Illinois,  79  Iowa 
518,  44  N.  W.  800,  7  L.  R.  A.  280, 18  Am.  St.  381  [452].  "Undoubt- 
edly, under  modern  methods,  in  the  case  of  carriers  by  rail,  the  rule 
would  extend  to  proper  refrigeration  according  to  the  established  cus- 
tom." Hutchinson,  Car.  (3d  Ed.)  sec.  505.  •  The  law  thus  throws 
upon  the  carrier  the  burden  of  showing  a  state  of  circumstances  which 
accounts  for  the  damage  to  the  merchandise  and  frees  it  from  lia- 
bility. The  trial  court  found  that  the  appellant  had  not  shown  that 
the  damage  to  the  strawberries  in  question  was  not  caused  by  some 
act  of  negligence  on  its  part. 

It  appeared  that  a  daily  "  berry  train  "  left  Mt.  Olive  each  day  for 
the  North,  and  that  the  car  in  question  was  attached  to  the  "berry 
train"  which  left  that  station  at  4  :  53  p.  m.  on  May  8.  In  the  usual 
course  of  events  this  car  would  have  been  delivered  to  the  Pennsyl- 
vania Railroad  Company  at  Sunbury  some  time  on  May  10.  The 
appellant's  witness  testified  that  "fast  freight  on  the  berry  train  from 
the  South  arrived  at  Sunbury  on  May  11  at  10 :  43  p.  m.,  and  at  that 
time  the  North  Central  delivered  it  at  Sunbury  to  the  Pennsylvania 
Railroad  Co."  ....  There  is  some  force  in  the  suggestion  that  the  wit- 
ness may  have  told  the  exact  truth  with  reference  to  the  arrival  of  the 
berry  train  on  May  11,  and  yet  the  car  in  question  may  have  arrived  on 
the  corresponding  train  which  arrived  at  Sunbury  about  the  same  hour 
on  the  previous  day.  The  conductor  who  took  the  train  at  Sunbury  tes- 
tified that  his  train  left  the  station  on  the  early  morning  of  May  12, 
and  that  it  contained  the  car  in  question.  The  evidence  certainly 
does  not  preclude  the  possibility  that  the  car  arrived  at  Sunbury  on 
May  10,  when  it  was  due  in  the  regular  course  of  transportation,  and 
through  accident  or  design  was  held  there  until  it  was  started  north 
in  the  early  morning  of  May  12.  The  appellant  should  have  shown 
by  clear  and  satisfactory .  evidence  just  when  the  car  came  into  its 
possession,  and  not  left  the  matter  to  inference  from  such  general 
statements.  The  car  arrived  at  Buffalo  the  evening  of  May  12,  and 
was  delivered  to  the  consignees  the  next  morning.  It  does  not  appear 
how  much,  if  any,  ice  was  in  the  bunkers  when  the  car  reached  Buf- 
falo, or  when  it  was  delivered.     It  is  possible  that  the  damage  to  the 


452  CARRIERS   OF   GOODS. 

berries  may  have  resulted  from  the  neglect  of  the  appellant  to  keep 
the  car  properly  iced  after  its  arrival  at  Buffalo  while  awaiting  deliv- 
ery to  the  respondent.  It  may  have  resulted  from  the  defective  con- 
dition of  the  ventilators,  doors,  traps,  pipes,  or  other  openings  in  the 
car  during  the  time  it  was  in  the  possession  of  the  appellant.  The 
appellant  should  have  shown  the  condition  of  the  car  with  reference 
to  such  matters,  and  thus  precluded  the  inference  which  the  court 
drew  from  the  absence  of  such  evidence.  In  this  state  of  the  record, 
we  cannot  say  that  the  court  erred  in  finding  that  the  defendant  had 
not  sustained  the  burden  of  showing  a  state  of  circumstances  which 
accounted  for  the  damages  on  some  other  theory  than  that  of  its  negli- 
gence. 

The  order  is  therefore  affirmed.1 

1  In  the  case  of  Beard  v.  Illinois  Central  R.  Co.,  79  Iowa,  578  (cited  in  this 
case),  Beck,  J.,  uses  this  language  :  "  A  carrier's  duty  is  not  limited  to  the  trans- 
portation of  goods  delivered  for  carriage.  He  must  exercise  such  diligence  as  is 
required  by  law  to  protect  the  goods  from  destruction  and  injury  resulting  from 
conditions  which,  in  the  exercise  of  due  care,  may  be  averted  or  counteracted. 
He  must  guard  the  goods  from  destruction  or  injury  by  the  elements ;  from  the 
effects  of  delays ;  indeed,  from  every  source  of  injury  which  he  may  avert,  and 
which,  in  the  exercise  of  care  and  ordinary  intelligence,  may  be  known  or  antici- 
pated. Unknown  causes,  or  those  which  are  inherent  in  the  nature  of  the  goods, 
and  cannot  be,  in  the  exercise  of  diligence,  averted,  will  not  render  the  carrier 
liable.  The  nature  of  the  goods  must  be  considered  in  determining  the  carrier's 
duty.  Some  metals  may  be  transported  in  open  cars.  Many  articles  of  commerce, 
when  transported,  must  be  protected  from  rain,  sunshine,  and  heat,  and  must 
have  cars  fitted  for  their  safe  transportation.  Live  animals  must  have  food  and 
water,  when  the  distance  of  transportation  demands  it.  Fruit,  and  some  other 
perishable  articles,  must  be  carried  with  expedition  aud  protection  from  frost. 
So  the  carrier  must  attend  to  the  character  of  the  goods  he  transports.  He  is 
informed  thereof  by  inspection  of  the  freight-bills,  or  by  other  papers  accompany- 
ing the  shipment." 


5.    LIMITATION   OF  LIABILITY. 

a.     What  valid. 

GIBBON  v.   PAYNTON. 

King's  Bench.     4  Burr.  2298.     1769. 

This  was  an  action  against  the  Birmingham  stagecoachman,  for 
£100  in  money  sent  from  Birmingham  to  London  by  his  coach,  and 
lost.  It  was  hid  in  hay,  in  an  old  nail-bag.  The  bag  and  the  hay 
arrived  safe;  but  the  money  was  gone.  The  coachman  had  inserted 
an  advertisement  in  a  Birmingham  newspaper,  with  a  nota  bene, 
"  that  the  coachman  would  not  be  answerable  for  money  or  jewels 


LIMITATION    OF   LIABILITY.  453 

or  other  valuable  goods,  unless  he  had  notice  that  it  was  money  or 
jewels  or  valuable  goods  that  was  delivered  to  him  to  be  earn 
He  had  also  distributed  hand-bills  of  the  same  import.  It  was 
notorious  in  that  country  that  the  price  of  carrying  money  from 
Birmingham  to  London  was  threepence  in  the  pound.  The  plain- 
tiff was  a  dealer  at  Birmingham,  and  had  frequently  sent  goods 
from  thence.  It  was  proved  that  he  had  been  used,  for  a  year 
a  half,  to  read  the  newspaper  in  which  this  advertisement  was  pub- 
lished; though  it  could  not  be  proved  that  he  had  ever  actually  read 
or  seen  the  individual  paper  wherein  it  was  inserted.  A  letter  of 
the  plaintiff's  was  also  produced,  from  whence  it  manifestly  appeared 
that  he  knew  the  course  of  this  trade,  and  that  money  was  not  car- 
ried from  that  place  to  London  at  the  common  and  ordinary  price  of 
the  carriage  of  other  goods.  And  it  likewise  appeared  from  this 
letter  that  he  was  conscious  that  he  could  not  recover,  by  reason  of 
this  concealment.     The  jury  found  a  verdict  for  the  defendant. 

Mr.  Wallace,  on  behalf  of  the  plaintiff,  moved  (on  Thursday,  26th 
January,  1769)  for  a  new  trial,  and  obtained  a  rule  to  show  cause: 
which  rule  he  now  enforced,  and  was  supported  by  Mr.  Hotham. 
They  insisted  that  the  coachman  was  answerable,  though  he  did  not 
know  that  it  was  money.  A  carrier  is  always  answerable,  unless 
he  accepts  the  goods  specially;  but  the  circumstances  of  this  case, 
they  said,  do  not  amount  to  a  special  acceptance.  He  made  no 
inquiry  or  objection;  therefore  he  is  answerable.  It  is  incumbent 
upon  him  to  see  that  he  is  not  cheated.  He  is  bound  to  receive  the 
goods,  and  must  run  the  risk.  If  the  goods  are  lost  by  negligence, 
or  even  if  he  is  robbed,  he  is  liable  to  answer  for  them.  If  the 
trader  deceives  him,  he  may  have  an  action  against  the  trader,  for 
this  deceit.  In  proof  of  their  arguments  and  assertions,  they  cited 
the  following  cases.  Aleyn,  93 ;  Kenrig  v.  Eggleston,  1  Ventr.  238,  a 
like  case  cited  by  Hale,  in  delivering  the  reasons  of  the  resolution  in 
the  case  of  Morse  v.  Slue  [402]  ;  Coggs  v.  Barnard  [4],  in  1  Salk.  26  ;  3 
Salk.  11,  268,  and  Holt,  13,  131,  528 ;  Carthew,  485.  Sir  Joseph  Tyly 
et  al.  v.  Morrice,  2  Shower,  81 ;  Bastard  v.  Bastard,  1  Stra.,  145  [376]  ; 
Titchburne  v.  White,  at  Guildhall ;  where  Lord  Chief  Justice  King 
held  "  that  if  a  box  is  delivered  generally  to  a  carrier,  and  he  accepts 
it,  he  is  answerable,  though  the  party  did  not  tell  him  there  is  money 
in  it." 

Mr.  Dunning  (Solicitor  General)  and  Mr.  Mansfield  argued  on 
behalf  of  the  defendant,  against  a  new  trial.  They  treated  this 
conduct  of  the  plaintiff  as  a  fraud  and  deception  upon  the  defendant. 
A  carrier  may  accept  specially :  this  man  has  done  so.  The  adver- 
tisement is  explicit  against  being  answerable  for  money,  without 
notice.  This  money  was  never  fairly  and  properly  intrusted  to  the 
defendant;  and  a  carrier  shall  not  be  liable,  where  he  is  imposed 
upon ;  which  is  the  present  case. 

Lord   Mansfield    distinguished  between  the   case   of   a  common 


454  CARRIERS   OF   GOODS. 

carrier  and  that  of  a  bailee.  The  latter  is  only  obliged  to  keep  the 
goods  with  as  much  diligence  and  caution  as  he  would  keep  his  own ; 
but  a  common  carrier,  in  respect  of  the  premium  he  is  to  receive,  runs 
the  risk  of  them,  and  must  make  good  the  loss,  though  it  happen 
without  any  fault  in  him;  the  reward  making  him  answerable  for 
their  safe  delivery. 

This  action  is  brought  against  the  defendant  upon  the  foot  of 
being  a  common  carrier.  His  warranty  and  insurance  is  in  respect 
of  the  reward  he  is  to  receive;  and  the  reward  ought  to  be  propor- 
tionable to  the  risk.  If  he  makes  a  greater  warranty  and  insurance, 
he  will  take  greater  care,  use  more  caution,  and  be  at  the  expense  of 
more  guards  or  other  methods  of  security;  and  therefore  he  ought, 
in  reason  and  justice,  to  have  a  greater  reward.  Consequently,  if 
the  owner  of  the  goods  has  been  guilty  of  a  fraud  upon  the  carrier, 
such  fraud  ought  to  excuse  the  carrier.  And  here  the  owner  was 
guilty  of  a  fraud  upon  him :  the  proof  of  it  is  over  abundant.  The 
plaintiff  is  a  dealer  at  Birmingham.  The  price  of  the  carriage  of 
money  from  thence  is  notorious  in  that  place:  it  is  the  rule  of  even- 
carrier  there.  It  is  fairly  presumed  that  a  man  conversant  in  a 
trade  knows  the  terms  of  it.  Therefore  the  jury  were  in  the  right, 
in  presuming  that  this  man  knew  it.  The  advertisement  and  hand- 
bills were  circumstances  proper  to  be  left  to  the  jury.  The  plain- 
tiff's having  been  used,  for  a  j^ear  and  a  half,  to  read  this  newspaper 
is  a  strong  circumstance  for  the  jury  to  ground  a  presumption  that 
he  knew  of  the  advertisement.  Then  his  own  letter  strongly  infers 
his  consciousness  of  his  own  fraud,  and  that  he  meant  to  cheat  the 
carrier  of  his  hire.  Therefore  I  entirely  agree  with  the  jury  in 
their  verdict.  And  if  he  has  been  guilty  of  a  fraud,  how  can  he 
recover?     Ex  dolo  malo  non  oritur  actio. 

As  to  cases  cited  —  that  of  Kenrig  v.  Eggleston,  in  Aleyn,  93,  was 
£100,  in  a  box  delivered  to  a  carrier;  the  plaintiff  telling  him  only 
"that  there  was  a  book  and  tobacco  in  the  box;"  and  Eoll  directed 
that  although  the  plaintiff:'  did  tell  him  of  some  things  in  the  box 
only,  and  not  of  the  money,  yet  he  must  answer  for  it;  for  he  need 
not  tell  the  carrier  all  the  particulars  in  the  box;  but  it  must  come 
on  the  carrier's  part  to  make  special  acceptance.  But  in  respect  of 
the  intended  cheat  to  the  carrier,  he  told  the  jury  they  might  con- 
sider him  in  damages:  notwithstanding  which,  the  jury  gave  £97 
igainst  the  carrier,  for  the  money  only  (the  other  things  being  of 
no  considerable  value),  abating  £3  only  for  carriage.  Quod  durum 
videbatur  circumstantibus.  Now  I  own  that  I  should  have  thought 
this  a  fraud;  and  I  should  have  agreed  in  opinion  with  the  circum- 
stantib'us;  which  seems  to  have  been  also  the  opinion  of  the  reporter. 

So  in  the  case  cited  by  Hale,  in  1  Ventris,  238,  of  a  box  brought, 
to  a  carrier,  with  a  great  sum  of  money  in  it;  and  upon  the  carrier's 
demanding  of  the  owner  "what  Avas  in  it,"  he  answered  "that  it  was 
filled  with  silks  and  such  like  goods  of  mean  value;  "  upon  which, 


LIMITATION    OF    LIABILITY.  455 

the  carrier  took  it,  and  was  robbed;  and  resolved  "that  he  was 
liable."  But  (says  the  case)  if  the  carrier  had  told  the  owner  "that 
it  was  a  dangerous  time;  and  if  there  were  money  in  it,  he  durst  nol 
take  charge  of  it;"  and  the  owner  had  answered  as  before;  this 
matter  would  have  excused  the  carrier.  In  this  case  also,  I  own 
that  I  should  have  thought  the  carrier  excused,  although  lie  had  not 
expressly  proposed  a  caution  against  being  answerable  for  moi 
for  it  was  artfully  concealed  from  him  that  there  was  any  money 
in  the  box. 

The  case  of  Sir  Joseph  Tyly  and  Others  against  Morrice,  in 
Carthew,  485,  was  determined  upon  the  true  principles  —  "that  the 
carrier  was  liable  only  for  what  he  was  fairly  told  of."  Two  bags 
were  delivered  to  him,  sealed  up,  said  to  contain  £200,  and  a 
receipt  taken  accordingly,  with  a  promise  "to  deliver  them  to  T. 
Davis;  he  to  pay  10s.  per  cent  for  carriage  and  risk."  The  carrier 
was  robbed.  The  Chief  Justice  was  of  opinion  that  he  should  answer 
for  no  more  than  £200,  "because  there  was  a  particular  undertaking 
by  the  carrier  for  the  carriage  of  £200  only;  and  his  reward  was  to 
extend  no  further  than  that  sum ;  and  't  is  the  reAvard  that  makes  the 
carrier  answerable:  and  since  the  plaintiffs  had  taken  this  course  to 
defraud  the  carrier  of  his  reward,  they  had  thereby  barred  them- 
selves of  that  remedy  which  is  founded  only  on  the  reward."  So 
the  jury  were  (in  that  case)  directed  to  find  for  the  defendant. 

For  these  reasons,  his  Lordship  was  of  opinion,  in  the  present 
case,  that  the  plaintiff  ought  not  to  recover. 

Mr.  Justice  Yates  held  that  a  carrier  may  make  a  special  accept- 
ance; and  that  this  was  a  special  acceptance. 

By  the  general  custom  of  #the  realm,  a  common  carrier  insures  the 
goods,  at  all  events;  and  it  is  right  and  reasonable  that  he  should 
do  so;  but  he  may  make  a  special  contract,  or  he  may  refuse  to  con- 
tract, in  extraordinary  cases,  but  upon  extraordinary  terms.  And 
certainly,  the  party  undertaking  ought  to  be  apprised  what  it  is  that 
he  undertakes ;  and  then  he  will  or  at  least  may  take  proper  care. 
But  he  ought  not  to  be  answerable  where  he  is  deceived.  Here  he 
was  deceived:  the  money  was  hid  in  an  old  nail-bag;  and  it  was 
concealed  from  him  that  it  was  money.  The  plaintiff's  own  letter 
shows  that  he  knew  the  course  of  this  trade,  and  that  money  was 
not  in  that  place  carried  at  the  common  ordinary  price  of  carrying 
other  things.  And  if  he  was  apprised  of  the  defendant's  advertise- 
ment, that  might  be  equivalent  to  personal  communication  of  the 
carrier's  refusal  to  be  answerable  for  money  not  notified  to  him;  and 
this  was  left  to  the  jury. 

Mr.  Justice  Aston-,  who  tried  the  cause,  said  he  had  no  doubt 
about  the  justice  of  the  case:  his  difficulty  had  only  arisen  from  the 
cases  and  authorities  which  had  been  now  mentioned;  which  put 
him  upon  more  caution  in  admitting  the  evidence.  But  it  appeared 
to  be  notorious  in  the  country  where  this  transaction  happened,  that 


456  CAERIERS   OF   GOODS. 

the  price  of  carrying  money  from  thence  to  London  was  threepence 
in  the  pound;  and  it  manifestly  appeared  that  this  was  money  sent 
under  a  concealment  of  its  being  money.  The  true  principle  of 
carrier's  being  answerable  is  the  reward.  And  a  higher  price  ought, 
in  conscience,  to  be  paid  him  for  the  insurance  of  money,  jewels, 
and  valuable  things,  than  for  insuring  common  goods  of  small  value. 
And  here,  though  it  was  not  directly  and  strictly  brought  home  to 
the  plaintiff  that  he  had  a  clear  certain  knowledge  of  the  defendant's 
advertisements  and  hand-bills,  yet  it  was  highly  probable  that  he 
must  have  known  of  them;  and  his  own  letter  showed  his  being 
conscious  that  he  could  not  recover,  by  reason  of  the  concealment. 
Therefore  I  think  the  verdict  against  him  ought  to  stand. 
Mr.  Justice  Willis  concurred  in  the  same  opinion. 

Per  Cur\  unanimously  —  Rule  discharged. 


HARRIS  v.   PACKWOOD. 

Common  Pleas.     3  Taunt.  264.     1810. 

This  was  an  action  brought  against  the  defendants,  who  were 
common  carriers,  to  recover  the  value  of  forty-six  pounds  of  silk, 
delivered  to  them  in  London,  to  be  carried  from  thence  by  their 
wagon  to  Coventry,  and  never  received  there  by  the  consignees. 
Upon  the. trial,  at  Guildhall,  at  the  sittings  after  the  last  Trinity 
Term,  before  Lawrence,  J.,  it  was  proved  that  the  goods  were 
delivered  and  booked  at  the  warehouse  in  London,  from  whence  the 
wagon  set  out,  and  that  they  were  seen  safe  at  Market  Street,  in 
the  road  to  Coventry,  but  that  they  never  arrived  at  Coventry;  that 
their  value  was  £126;  that  the  wagon  by  which  they  were  carried 
formerly  was  built  with  bows,  and  when  the  bows  were  closed,  it 
was  very  difficult  to  take  a  large  parcel  out  of  the  loaded  wagon,  but 
that  for  some  time  past  these  bows  had  been  taken  off  and  discon- 
tinued, in  order  to  make  it  more  easy  to  load  the  wagon,  and  to 
enable  it  to  receive  a  larger  load,  but  that  this  alteration  rendered 
it  an  easier  matter  to  take  out  a  parcel.  The  wagon  had  also  for- 
merly been  guarded,  but  there  had  been  no  guard  to  attend  it  for 
the  last  two  years.  The  wagon  usually  arrived  at  Towcester  at  two 
o'clock  in  the  morning,  and  remained  there  until  twelve  at  noon,  in 
a  yard,  under  the  wall.  It  was  the  wagoner's  practice  on  his  arrival 
there  to  call  up  the  innkeeper,  and  to  go  to  bed  himself.  The 
defendant  relied  upon  his  having  published  an  advertisement,  in 
November,  1808,  which  he  had  sent  round  to  all  the  silk-traders  who 
then  used  his  wagon,  and  amongst  others  to  the  plaintiff,  announ- 
cing that  he  would  not  be  accountable  for  any  package  whatsoever, 


LIMITATION    OF    LIABILITY.  457 

above  the  value  of  £20,  unless  entered,  and  an  insurance  paid,  o . 
and  above  the  price  charged  for  carriage,  according  to  their  value 
and  that  no  such  insurance  had  been  paid  in  this  case;  the  plaintiff 
answered  this  by  proving  a  former  advertisement  circulated  by  the 
defendant  containing  special  terms  for  the  carriage  of  silk,  viz. ,  9s. 
Ad.  per  cwt. ,  while  for  ordinary  bulky  articles  he  charged  6s.  only, 
and  he  contended  that  the  higher  price  of  9s.  Ad.  per  cwt.  included 
the  premium  of  insurance.  It  was  admitted  that  if  the  goods  had 
been  delivered,  the  plaintiff  would  have  paid  for  them  at  the  rate  of 
9s.  Ad.  per  cwt.  Some  other  persons  paid  a  halfpenny  per  lb.  of 
silk,  besides  the  price  of  carriage,  for  insurance. 

Shepherd,  Sergt. ,  for  the  defendant,  contended  that  the  claim  for 
insurance  meant  the  same  thing  as  if  the  defendants  had  said,  if 
goods  are  of  a  certain  value,  we  must  receive  a  halfpenny  more  in 
every  pound  of  their  value  for  carrying  them;  and  as  the  plaintiff 
had  not  engaged  to  pay  that,  he  could  not  make  the  defendant  in 
any  wise  responsible  for  the  loss. 

Lawrence,  J.,  thought,  that  as -a  specific  sum  was  paid  for  the 
carriage,  and  something  was  to  be  paid  over  and  above  the  carriage 
for  insurance,  the  word  insurance  must  be  applied  to  those  risks 
against  which  a  carrier  is  bound  by  law  to  insure,  qua  insurer,  as 
fire,  robbers,  armed  force,  and  the  like,  and  that  the  sum  required 
for  insurance  must  be  received  as  the  price  of  guarding  against  those 
accidents ;  but  that  without  the  payment  of  any  such  insurance,  he 
was  still  bound  to  guard  against  loss  by  exposure,  carelessness, 
driving  into  the  river,  or  the  like;  otherwise  a  carrier  might  receive 
the  price  of  carrying  the  goods,  and  nevertheless  be  as  careless  as 
he  pleased :  in  this  case  it  did  not  appear  that  the  parcel  was  not 
lost  through  mere  negligence;  there  was  good  reason  why  a  carrier 
should  be  made  accpiainted  with  the  value  of  the  goods  committed 
to  him,  that  he  might  take  the  greater  precaution  against  fire,  or 
take  greater  force  to  resist  felons;  but  here  the  defendant  was 
satisfied  with  the  price  of  the  carriage,  and  undertook  to  carry  for 
that  price,  but  claimed  something  further  for  insurance:  what  does 
that  mean?  surely  not  for  insurance  against  his  own  default  of  duty  I 
It  was  incumbent,  therefore,  on  the  defendant  to  show  that  he  took 
reasonable  care  of  them,  not  on  the  plaintiff  to  prove  a  negative,  and 
that  the  defendant  took  no  care  of  them.  The  jury,  under  his  direc- 
tion, found  a  verdict  for  the  plaintiff,  for  £126  damages,  with  liberty 
reserved  to  the  defendants  to  move  for  a  new  trial,  or  nonsuit,  as 
they  might  be  advised. 

Shepherd,  Sergt.,  having,  accordingly,  in  the  present  term,  obtained 
a  rule  nisi  to  enter  a  nonsuit, 

Best  and  Vaughan,  Sergts. ,  on  this  day,  showed  cause;  when 
Lawrence,  J.,  upon  reporting  the  evidence,  said,  that  at  the  time 
of  the  trial  he  had  not  read  the  case  of  Nicholson  v.  Willan,  5  East, 
507.     In  that  case  there  was  no  distinction   in  the  advertisement 


458  CARRIERS    OF   GOODS. 

between  the  price  of  carriage,  and  the  price  of  insurance,  but  the 
distinction  was  taken  in  argument,  and  relied  on;  the  court,  how- 
ever, held  the  defendant  not  liable.     Best  contended  that  this  differ- 
ence in  the  two  advertisements  materially  distinguished  the  present 
case  from  that  of  Nicholson  v.  Willan;  here  the  contract  is,  that  a 
certain  price  shall  be  paid   for  carriage,  and  an  insurance  over  and 
above  that:  therefore,  inasmuch  as  the  contract  is  to  be  taken  most 
strongly  against  the  party  who  words  it,  the  price  of  carriage  is  the 
compensation  for  the  labor  and  diligence  to  be  bestowed,  and  the 
price  of  insurance  is  the  price  for  covering  those  risks  which  are 
purely  accidental.    '[Lawrence,  J.  In  Nicholson  v.  Willan  it  was 
very  doubtful  whether  the  goods  had  gone  by  any  carriage.]     By  the 
statutes  3&4W.&M.C.  12,  and   21  G.  II.  c.  28,  the  price  of  car- 
riage is  to  be  fixed  by  the  magistrates  at  their  quarter  sessions,  and 
the  latter  statute  inflicts  a  penalty  of  £5  upon  carriers  who  bring 
goods  to  London,  for  taking  a  higher  price  than  is  allowed  by  the 
sessions  of  the  county  from  which  they  set  out;  and  this  statute  is 
not,  as  it  has  been  supposed,  repealed  by  any  subsequent  act;  but  if 
these  statutes  be  now  in  force,  it  is  impossible  that  a  carrier  can 
refuse  to  carry  goods  for  the  price  which  the  sessions  fix.    [Heath,  J. 
It  does  not  appear  that  any  order  of  sessions  has  been  made  in  the 
present  case.]     The  case  of  Oppenheim  v.  Russell,  3  Bos.  &  Pull. 
42,  contradicts  the  position,  that  though  a  carrier  cannot  get  rid  of 
his  whole  responsibility,  he  may  vary  it  in  any  shape  that  he  pleases. 
All  four  of  the  judges  there  held,  that  a  carrier  could  not  create  a 
lien  upon  the  goods  delivered  to  him  for  his  general  balance,  because 
he  was  bound  by  the  law  of  the  country  to  receive  and  carry  goods 
for  a  reasonable  reward.     [Lawrence,  J.     That  was  a  lien  as  against 
the  owner  of  the  goods  to  whom  they  were  consigned:  the  court  did 
not  say  that  the  carrier  could  not  have  a  general  lien  against  the 
party  sending  the  goods,  if  he  were  also  the  owner.]     But  as  the 
law  binds  the  carrier  equally  to  insure  as  to  carry,  if  he  cannot 
prescribe  the  terms  on  which  he  will  carry,  so  neither  can  he  pre- 
scribe the  terms  on  which  he  will  insure;  or,  if  he  may,  yet  it  is 
not  competent  to  him  to  require  payment  for  an  insurance  against 
his  own  negligence,  by  which,  so  far  as  appeared,  this  loss  was 
occasioned.     Nay,  more,  it  was  the  effect  of  his  own  cupidity;  for 
the  wagon  formerly  was  advertised  as  going  with  a  light  and  a  guard, 
and  inasmuch  as  the  defendant  had  never  publicly  countermanded 
that  advertisement,  the  plaintiff  had  a  right  to  suppose  that  it  was 
still  lighted  and'  guarded;  he  was  also  bound  to  have  a  wagon  secure 
from  theft,  to  which  he  has  rendered  it  more  liable  by  taking  off  the 
bows;  yet  without  giving  any  notice  of  the  alteration  he  continued 
to  receive  the  same  rate  of  carriage  as  he  did  when  the  bows  were 
there,  and  the  wagon  guarded,  which   is  a  gross  fraud.     The  non- 
payment of  the  price  of  insurance  cannot  exonerate  the  carrier  from 
the  duty  of  ordinary  diligence  and  care ;  if  he  wishes  to  avail  him- 


LIMITATION    OF   LIABILITY.  459 

self  of  his  renunciation  of  the  character  of  insurer,  he  must  show 
that  the  loss  happened  by  an  insurable  accident,   and  not  by  that 
degree  of  negligence  against  which  every  man  who  undertakes  to  do 
anything  for  hire,  is  bound  to  guard.     The  case  of  Tyly  v.  Morrice, 
Carth.  485,  and  all  the  old  cases,  are  cases  where  a  deceit  is  put  upon 
the  carrier  as  to  the  value  of  the  goods,  and  he  is  relieved  against  it. 
Lane  v.  Cotton,  Salk.  18  [261].  Lord  Holt,  Ch.  J.,  says,  "It  is  a  hard 
thing  to  charge  a  carrier;  but  if  he  should  not  be  charged,  he  might 
keep  a  correspondence   with  thieves,  and  cheat   the  owner  of  his 
goods,  and  he  should  never  be  able  to  prove  it."     This  is  not  only 
sound  law,  but  excellent  sense,  as  well  as  great  authority.     Lyon  v. 
Mells,  5  East,  430.     The  carrier  had  given  notice  "that  he  would 
not  be   liable   for   any  damage  which   should   happen   to  a  cargo, 
unless  it  were  occasioned  by  the  want  of  ordinary  care  in  the  master 
or  crew  of  the  vessel,  and  in  such  case,  he  would  pay  £10  per  cent 
upon  the  loss,  provided  it  did  not  exceed  the  value  of  the  vessel  and 
freight;  and  that  persons  desirous  of  having  their  goods  carried  free 
of  any  risk    might  have  the  same  so  carried  by  entering   into  an 
agreement  for  the  payment  of  extra  freight,  proportionable  to  the 
accepted  responsibility."     Yet  where  a  loss  happened  by  the  vessel 
not  being  seaworthy,  the  owner  was  very  properly  held  liable  to  the 
whole  extent  of  the  loss,  though  it  was  not  one  of  the  events  in 
which  he  consented  to  be  in  any  case  nor  to  any  amount  liable.     Ellis 
v.  Turner,  8  Term  Rep.  532.     The  defendant  endeavored  to  avail 
himself  of  a  similar  notice,  but  the  master  of  the  vessel  having  car- 
ried the  goods  beyond  the  place  where  they  were  to  be  delivered, 
and  at  which  she  touched  and  delivered  a  part,  and  the  ship  being 
lost  on  the  ulterior  voyage,  it  was  held  that  the  owner  was  liable 
beyond  the  £10  per  cent  for  the  full  amount  of  the  loss.     It  would 
be  carrying  the  matter  much  further  than  the  cases  have  hitherto 
gone,  to  say  that  because  a  person  does  not  insure,  therefore  he  shall 
have  no  remedy  for  a  loss  which  is  not  occasioned  by  insurable 
perils.     The  contract  in  this  case  is  not  very  explicit,  but  it  is  to 
be  expounded  with  at  least  as  much  liberality  towards  the  public  as 
towards  the  carrier.     If,  then,   it  had  been  expressly  worded  that 
the  defendant  would  not  be  liable  for  any  loss  incurred  by  the  neg- 
ligence of  himself  or  his   servants,  unless  an   insurance  over  and 
above  the  charge  for  carriage  were  paid,  would  not  the  court  reject 
those   words,    and   say  that  he   should  not   require  a   premium  for 
insurance  against  losses  which  might  happen  for  the  want  of  that 
care  which  is  paid  for  in  the  price  of  carriage? 

Shepherd,  contra.  The  cases  of  Lyon  v.  Mells,  and  Ellis  v. 
Turner,  are  not  applicable;  the  first  was  decided  on  the  ground  of 
gross  negligence  in  the  carrier,  who  had  accepted  the  goods  to  carry, 
not  upon  the  ground  that  he  might  not  limit  his  responsibility.  In 
the  second  case  the  goods  were  not  lost  in  the  course  of  the  carriage 
which  the  defendant  had  undertaken,  but  he  had  gone  beyond  the 


460  CAKKIEHS    OF    GOODS. 

point  where  they  were  to  be  delivered.  If  the  law  that  carriers 
may  limit  their  responsibility  be  wrong,  the  legislature  alone  can 
alter  it;  but  it  probably  is  the  wisest  policy  to  leave  things  to  hnd 
their  own  level;  if  the  law  fixed  the  same  price  for  goods  of  the 
highest  as  of  the  least  value,  no  one  would  be  a  carrier.  To  show 
that  the  law  had  long  been  so  established,  he  cited  Kenrick  v. 
Eggleston,  Aleyn,  93;  Tyly  v.  Morrice;  Gibbon  v.  Paynton,  4  Burr. 
2298  [452];  Clay  v.  Willan,  1  H.  Bl.  298;  Izet  v.  Mountain,  4  East, 
371.  A  warehouse-keeper  may  be  answerable  for  a  loss  by  fire,  if 
the  loss  happens  by  his  especial  gross  negligence;  but  in  general,  a 
warehouseman  is  not  answerable  for  that  species  of  loss.  So  a  car- 
rier, like  any  other  person,  may  be  liable  for  gross  negligence,  but 
if  he  makes  an  especial  acceptance  of  the  goods,  he  is  not  liable 
unless  the  plaintiff  shows  that  he  is  guilty  of  this  gross  negligence. 
It  would  be  impossible  for  the  defendant  ever  to  prove  the  negative, 
that  he  was  not  guilty  of  gross  negligence.  Rothwell  v.  Davis,  B.  R. 
sittings  after  the  last  Easter  Term,  before  Bayley,  J.,  the  carrier 
gave  notice  that  he  would  not  be  answerable  "unless  the  goods  were 
entered,  and  properly  paid  for."  Nothing  was  paid  but  the  booking, 
and  it  was  held  that  the  plaintiff  could  not  recover.  So,  in  this 
case ,  the  carriers  require  the  goods  to  be  "  entered  according  to  their 
value,"  which  is  not  done;  so  that  even  if  all  that  relates  to  the 
insurance  be  laid  out  of  the  question,  still  the  plaintiff  cannot 
recover.  [Lawrence,  J.  No;  the  words  are  "will  not  be  answer- 
able unless  entered ;  "  he  does  not  say  "  entered  according  to  the 
value,"  but  that  the  insurance  shall  be  according  to  the  value.] 
Clay  v.  Willan  is  in  point,  where  the  words  were,  that  he  would  not 
be  answerable  for  goods  above  five  pounds'  value  unless  entered  as 
such,  and  a  penny  insurance  paid  for  each  pound  value.  If  the  car- 
rier were  to  say  he  would  not  be  accountable  for  any  of  his  acts, 
commissive  or  omissive,  although  they  amount  to  gross  negligence, 
that  would  be  an  exception  of  the  very  thing,  and  the  court  would 
not  permit  such  a  contract;  but  that  is  not  this  case. 

Mansfield,  Ch.  J.  These  cases,  so  decided,  seem  to  have  decided 
the  present.  However  we  may  wish  the  law  to  be,  we  cannot  make 
it  different  than  as  we  find  it.  In  looking  into  the  books,  we  find 
the  special  acceptance  much  older  than  I  had  supposed  it  to  be.  And 
it  leads  to  great  frauds,  for  on  account  of  the  number  of  persons 
always  attending  about  these  open  wagon -yards  and  offices,  every 
person  standing  around  is  apprised  that  this  or  that  parcel  contains 
watches  or  jewels  to  the  amount  of  many  hundred  pounds;  this  is  a 
great  inconvenience,  but  however  inconvenient  it  is,  it  seems  that 
from  the  days  of  Aleyn  down  to  this  hour,  the  cases  have  again  and 
again  decided  that  the  liability  of  a  carrier  may  be  so  restrained; 
then  the  question  is,  whether  this  loss  is  within  the  contract  that 
has  been  made,  and  it  seems,  according  to  one  or  two  of  the  cases, 
that   it   is   not;    for   the   losses    have   been    of    a   very   suspicious 


LIMITATION   OF   LIABILITY.  461 

nature ;  in  one  case,  the  parcel  seems  to  have  been  lost  before  it  left 
the  yard ;  but,  however,  as  there  was  no  proof  here  of  express  negli- 
gence, it  seems  that  there  must  be  a  rule  absolute  for  a  nonsuit.  It 
would,  however,  be  useless  to  pass  any  such  statutes  to  limit  the 
price  of  carriage  if  a  carrier  be  at  liberty  to  charge  what  he  pleases: 
the  price  must  be  reasonable. 

Heath,  J.,  was  of  the  same  opinion.  In  some  wagons  there  are 
particular  safe  places  in  the  very  centre,  to  deposit  jewels  and 
articles  of  superior  value,  when  they  are  known  to  be  such. 

Lawrence,  J.  I  was  not  aware  of  the  cases  which  have  been  made 
use  of,  for  the  word  "insurance."  It  is  a  very  foolish  word,  and  if 
the  defendants  had  said,  we  will  not  in  any  case  be  liable  for  the 
goods,  unless  a  certain  sum  is  paid,  according  to  the  value,  it  would 
have  been  clear  and  intelligible ;  and  there  is  nothing  unreasonable 
in  a  carrier  requiring  a  greater  sum,  when  he  carries  goods  of  greater 
value,  for  he  is  to  be  paid  not  only  for  his  labor  in  carrying,  but  for 
the  risk  which  he  runs,  which  is  greater  in  proportion  to  the  value 
of  the  goods.  I  would  not,  however,  have  it  understood  that  carriers 
are  at  liberty  by  law  to  charge  whatever  they  please;  a  carrier  is 
liable  by  law  to  carry  everything  which  is  brought  to  him  for  a  rea- 
sonable sum  to  be  paid  for  the  same  carriage,  and  not  to  extort  what 
he  will. 

Chambre,  J.  I  am  of  the  same  opinion.  The  defendants  say 
they  will  not  be  insurers,  we  will  not  enter  into  that  situation  at  all, 
unless  we  are  paid  according  to  the  value.  Therefore  there  must 
be  a  nonsuit.  Rule  absolute. 


EILEY   v.    HORNE. 
Common  Pleas.     5  Bing.  217.     1828. 

Case  against  the  defendants  as  common  carriers,  for  negligence  in 
losing  goods  intrusted  to  them,  to  be  safely  conveyed  by  them  from 
Kettering  to  London,  and  there  to  be  delivered  to  the  plaintiffs  for 
reward  to  the  defendants  in  that  behalf.    .Plea,  not  guilty. 

At  the  trial,  before  Best,  C.  J.,  London  sittings  after  Hilary 
Term,  1828,  it  appeared  that  the  plaintiffs  were  silk-weavers  residing 
in  London,  and  carrying  on  business  there  and  at  Kettering;  that 
the  defendants'  coach  ran  from  the  George  and  Blue  Boar,  London, 
to  Kettering  and  back;  that  at  the  George  and  Blue  Boar  there  was 
a  notice,  that  the  proprietors  of  coaches  which  set  out  from  that 
office  would  not  be  responsible  for  goods  above  the  value  of  65, 
unless  entered  as  such,  and  paid  for  accordingly;  that  the  plaintiffs 
were  aware  of  this  notice,  and  in  the  habit  of  sending  goods  up  and 
down  by  the  defendants'  coach;  that  the  goods  in  question,   silks 


462  CARRIERS    OF    GOODS. 

to  the  value  of  £46,  were  delivered  to  the  defendants  by  the  plain- 
tiffs' servant,  at  the  defendants'  office  at  Kettering,  to  be  conveyed 
to  London,  and  that  the  servant  saw  no  such  notice  in  the  office  at 
Kettering;  that  the  goods  were  never  delivered  to  the  plaintiffs. 

The  learned  Chief  Justice,  thinking  the  notice  in  the  office  at  the 
George  and  Blue  Boar,  of  which  the  plaintiffs  were  cognizant, 
applied  only  to  the  journey  out  to  Kettering,  and  not  to  the  journey 
back,  a  verdict  was  found  for  the  plaintiffs  with  leave  for  the 
defendants  to  move  to  set  it  aside. 

Best,  C.  J.  In  a  state  of  society  such  as  that  we  live  in,  —  in 
which  we  are  supplied  with  the  necessaries  and  conveniences  of  life 
by  an  interchange  of  the  produce  of  the  soil  and  industry  of  every 
part  of  the  world,  —  so  much  property  must  be  intrusted  to  carriers 
that  it  is  of  great  importance  that  the  laws  relating  to  the  carriage 
of  goods  should  be  rendered  simple  and  intelligible;  and  that  they 
should  be  such  as  to  provide  for  the  safe  conveyance  of  property, 
and  at  the  same  time  protect  the  carrier  against  risks,  the  extent  of 
which  he  cannot  know,  and,  therefore,  cannot  determine  what  pre- 
cautions are  proper  for  his  security. 

When  goods  are  delivered  to  a  carrier,  they  are  usually  no  longer 
under  the  eye  of  the  owner;  he  seldom  follows  or  sends  any  servant 
with  them  to  the  place  of  their  destination.  If  they  should  be  lost 
or  injured  by  the  grossest  negligence  of  the  carrier  or  his  servants, 
or  stolen  by  them,  or  by  thieves  in  collusion  with  them,  the  owner 
would  be  unable  to  prove  either  of  these  causes  of  loss ;  his  witnesses 
must  be  the  carrier's  servants,  and  they,  knowing  that  they  could 
not  be  contradicted,  would  excuse  their  masters  and  themselves. 

To  give  due  security  to  property,  the  law  has  added  to  that  respon- 
sibility of  a  carrier  which  immediately  rises  out  of  his  contract  to 
carry  for  a  reward  —  namely,  that  of  taking  all  reasonable  care  of 
it  —  the  responsibility  of  an  insurer. 

From  his  liability  as  an  insurer,  the  carrier  is  only  to  be  relieved 
by  two  things,  both  so  well  known  to  all  the  country  when  they 
happen,  that  no  person  would  be  so  rash  as  to  attempt  to  prove  that 
they  had  happened  when  they  had  not,  —  namely,  the  act  of  God 
and  the  king's  enemies. 

As  the  law  makes  the  carrier  an  insurer,  and  as  the  goods  he 
carries  may  be  injured  or  destroyed  by  many  accidents,  against 
which  no  care  on  the  part  of  the  carrier  can  protect  them,  he  is  as 
much  entitled  to  be  paid  a  premium  for  his  insurance  of  their 
delivery  at  the  place  of  their  destination,  as  for  the  labor  and 
expense  of  carrying  them  there.  Indeed,  besides  the  risk  that  he 
runs,  his  attention  becomes  more  anxious,  and  his  journey  is  more 
expensive,  in  proportion  to  the  value  of  his  load.  If  he  has  things 
of  great  value  contained  in  such  small  packages  as  to  be  objects 
of   theft  or  embezzlement,   a   stronger  and  more  vigilant  guard  is 


LIMITATION    OF   LIABILITY.  463 

required  than  when  he  carries  articles  not  easily  removed,  and  which 
offer  less  temptation  to  dishonesty.     He  must  take  what  is  offered 
to  him  to  carry  to  the  place  to  which  he  undertakes  to  convey  g(" 
if  he  has  room  for  it  in  his  carriage.     The  loss  of  one  single  package 
might  ruin  him. 

By  means  of  negotiable  bills,  immense  value  is  now  compres 
into  a  very  small  compass.  Parcels  containing  these  bills  are 
tinually  sent  by  common  carriers.  As  the  law  compels  curriers  to 
undertake  for  the  security  of  what  they  carry,  it  would  be  most 
unjust  if  it  did  not  afford  them  the  means  of  knowing  the  extent  of 
their  risk.  Other  insurers  (whether  they  divide  the  risk,  which 
they  generally  do,  amongst  several  different  persons,  or  one 
insurer  undertakes  for  the  insurance  of  the  whole)  always  have 
the  amount  of  what  they  are  to  answer  for  specified  in  the  policy 
of  insurance. 

If  the  extent  of  risk  is  ascertained  in  cases  in  which  persons  are 
not  obliged  to  insure,  and  if  they  do  insure  may  fix  their  own  rate 
of  premium,  there  is  greater  reason  for  ascertaining  it  where  one  is 
compelled  to  become  an  insurer,  and  can  only  charge  what  the 
magistrates  in  sessions,  if  they  think  proper  to  settle  the  rates  of 
carriage,  will  allow  under  the  statute  of  William  and  Mary,  and 
where  no  such  rates  are  made,  what  a  jury  shall  think  reasonable. 
It  would  be  inconvenient,  perhaps  impossible,  to  have  a  formal 
contract  made  for  the  carriage  of  every  parcel  in  which  the  value  of 
the  parcel  should  be  specified,  as  well  as  the  price  to  be  paid  for  the 
carriage.  But  it  would  add  very  little  to  the  labor  of  the  book- 
keeper if  he  entered  the  value  of  each  package,  and  gave  the  person 
who  brought  it  a  written  memorandum  of  such  entry,  like  the  slips 
now  made  on  an  agreement  for  a  policy  of  insurance. 

The  giving  of  such  memorandums  will  entirely  put  an  end  to  the 
litigation  which  the  notices  of  carriers  now  give  occasion  to,  and 
would  make  the  practice  of  carriers,  as  nearly  as  circumstances  will 
permit,  conformable  to  that  of  all  other  insurers.  Perhaps  such 
memoranda  might  bring  the  parties  within  the  reach  of  the  stamp 
laws;  and  the  apprehension  of  this  may  have  prevented  carriers 
from  adopting  a  practice  so  effectual  for  their  security,  and  have 
driven  them  to  the  expedient  of  giving  notices  that  they  will  not  be 
answerable  beyond  a  certain  sum,  unless  the  parcels  are  entered  and 
paid  for  as  parcels  of  value. 

In  Batson  v.  Donovan,  4  B.  &  A.  21,  the  Court  of  King's  Bench 
considered  a  notice  of  this  sort,  the  knowledge  of  which  was  brought 
home  to  the  party  sending  goods,  as  equivalent  to  a  request  on  the 
part  of  the  carrier  to  know  the  value,  and  that  it  made  it  the  duty 
of  the  owner  of  the  goods  to  apprise  the  carrier  that  the  parcel  was 
of  value. 

The  legislature  would  probably  think,  if  its  attention  wer iller] 

to  the  subject,   that  a  stamp  duty  on  contracts  relative  to    inland 


464  CARRIERS    OF    GOODS. 

carriage  would,   be  a  very  heavy  and  very   inconvenient  tax,  and 
would  remove  the  objection  to  written  evidence  of  such  contracts. 

A  carrier  has  a  right  to  know  the  value  and  quality  of  what  he  is 
required  to  carry.  If  the  owner  of  the  goods  will  not  tell  him  what 
his  goods  are  and  what  they  are  worth,  the  carrier  may  refuse  to 
take  charge  of  them;  but  if  he  does  take  charge  of  them,  he  waives 
his  right  to  know  their  contents  and  value.  It  is  the  interest  of  the 
owner  of  goods  to  give  a  true  account  of  their  value  to  a  carrier,  as 
in  the  event  of  a  loss  he  cannot  recover  more  than  the  amount  of 
what  he  has  told  the  carrier  they  were  worth;  and  he  cannot  recover 
more  than  their  real  worth,  whatever  value  he  may  have  put  on 
them  when  he  delivered  them  to  the  carrier. 

It  was  decided  in  Gibbon  v.  Paynton,  4  Burr.  2298  [452]  that 
any  artifice  made  use  of  to  induce  a  carrier  to  think  that  a  parcel  of 
jewelry  contained  only  things  of  small  value,  would  prevent  the 
owner  from  recovering  for  the  loss  of  his  parcel. 

In  Kenrig  v.  Eggleston,  Al.  93,  it  was  held  that  the  owner  was 
not  required  to  state  all  the  contents  of  the  parcel,  but  it  was  for 
the  carriers  to  make  a  special  acceptance.  In  Tyly  and  Others  v. 
Morrice,  Garth.  485,  in  which  the  preceding  case  is  recognized  and 
confirmed,  it  is  said  that  the  true  principle  is,  that  the  carrier  is 
only  liable  for  what  he  is  fairly  told  of.  In  Titchburne  v.  White, 
Str.  145,  it  was  determined  that  a  carrier  is  answerable  for  money, 
although  he  was  not  told  that  the  box  delivered  to  him  contained 
any  money,  unless  he  was  told  that  the  box  did  not  contain  money, 
or  he  accepted  it  on  the  condition  that  it  did  not  contain  money. 

It  may  be  collected  from  these  authorities,  that  it  is  the  duty  of 
the  carrier  to  inquire  of  the  owner  as  to  the  value  of  his  goods,  and 
if  he  neglects  to  make  such  inquiry,  or  to  make  a  special  acceptance, 
and  cannot  prove  knowledge  of  a  notice  limiting  his  responsibility, 
he  is  responsible  for  the  full  value  of  the  goods,  however  great  it 
may  be.  This  is  a  convenient  rule;  it  imposes  no  difficulty  on  the 
carrier.  He  knows  his  own  business,  and  the  laws  relative  to  it. 
Many  persons,  who  have  occasion  to  send  their  goods  by  carriers, 
are  entirely  ignorant  of  what  they  ought  to  do  to  insure  their  goods. 
Justice  and  policy  require  that  the  carriers  should  be  obliged  to  tell 
them  what  they  should  do. 

Although  a  carrier  may  prove  that  the  owner  of  goods  knew  that 
the  carrier  had  limited  his  responsibility  by  a  sufficient  notice,  yet 
if  a  loss  be  occasioned  by  gross  negligence,  the  notice  will  not  pro- 
tect him.  Every  man  that  undertakes  for  a  reward  to  do  any  ser- 
vice obliges  himself  to  use  due  diligence  in  the  performance  of  that 
service.  Independently  of  his  responsibility  as  an  insurer,  a  carrier 
is  liable  for  gross  negligence.  This  point  is  settled  by  Sleat  v. 
Flagg,  5  B.  &  A.  342;  Wright  v.  Snell,  id.  350;  Birkett  v.  Willan, 
2  B.  &  A.  356;  Beck  v.  Evans,  16  East,  244;  and  Bodenham  v. 
Bennett,  4  Price,  31. 


LIMITATION   OF   LIABILITY.  465 

The  jury  are  to  decide  what  is  gross  negligence.  We  may,  how- 
ever, observe  that  the  most  anxiously-attentive  person  may  slip 
into  inadvertence  or  want  of  caution.  Such  a  slip  would  be  negli- 
gence, but  not  such  a  degree  of  negligence  as  would  deprive  a  carrier 
of  the  protection  of  his  notice.  The  notice  will  protect  him,  unless 
the  jury  think  that  no  prudent  person,  having  the  care  of  an  impor- 
tant concern  of  his  own,  would  have  conducted  himself  with  so 
much  inattention  or  want  of  prudence  as  the  carrier  has  been  guilty 
of. 

If  a  notice  touching  the  responsibility  of  the  carrier  be  given,  it 
matters  not  by  whom  it  is  given,  or  in  what  form,  if  it  tells  the 
owner  of  the  goods  that  the  carrier  by  whom  he  proposes  to  send 
them  will  not  undertake  for  their  safe  conveyance,  unless  paid  a 
premium  proportioned  to  their  value. 

We  have  established  these  points,  —  that  a  carrier  is  an  insurer  of 
the  goods  which  he  carries;  that  he  is  obliged,  for  a  reasonable 
reward,  to  carry  any  goods  to  the  place  to  which  he  professes  to 
carry  goods  that  are  offered  him,  if  his  carriage  will  hold  them,  and 
he  is  informed  of  their  quality  and  value;  that  he  is  not  obliged  to 
take  a  package,  the  owner  of  which  will  not  inform  him  what  are 
its  contents,  and  of  what  value  they  are ;  and  if  he  does  not  ask  this 
information,  or  if,  when  he  asks,  and  is  not  answered,  he  takes  the 
goods,  he  is  answerable  for  their  amount,  whatever  that  may  be; 
that  he  may  limit  his  responsibility,  as  an  insurer,  by  notice;  but 
that  a  notice  will  not  protect  him  against  the  consequences  of  a  loss 
by  gross  negligence.1  .  .  . 


HOLLISTER  v.   NOWLEK 
19  Wend.  (N.  Y.  Sup.  Ct.)  234.     1838. 

This  was  an  action  against  the  defendant  as  a  common  carrier  for 
the  loss  of  the  plaintiff's  trunk  and  contents.  A  case  was  agreed  on 
between  the  parties  stating  the  following  facts :  the  defendant  was 
a  member  of  a  company,  the  proprietors  of  the  three  daily  lines  of 
stagecoaches  running  between  Canandaigua  and  Buffalo,  one  of 
which  was  called  the  Telegraph  line.  The  defendant  resided  at 
Avon,  and  with  his  teams  and  coaches  ran  that  part  of  the  route 
lying  between  Avon  and  Le  Roy.  East  of  Canandaigua  the  line 
was  owned  by  other  proprietors.  The  plaintiff  resided  at  Utica, 
and  at  that  place  entered  as  a  passenger  in  the  Telegraph  line  for 
Buffalo.     His  baggage  consisted  of  a  trunk,  containing  clothing 

1  The  judge  discusses  the  sufficiency  of  certain  notices,    but   that  portion  of  the 
opinion  is  not  deemed  important,  and  is  omitted.  —  [Ed.] 


466  CARRIERS    OF    GOODS. 

the  value  of  $116.75.  The  fare  was  duly  paid.  On  the' 20th  July, 
1833,  before  daylight  in  the  morning,  the  plaintiff  left  Avon  in  the 
defendant's  coach  ou  his  way  to  Buffalo.  The  trunk  was  placed  in 
the  boot  behind  the  coach,  which  was  carefully  secured  by  strong 
leather  covering,  fastened  with  strong  leather  straps,  and  buckles, 
and  was  made  secure  against  any  loss  except  by  violence.  After 
proceeding  about  three  miles  it  was  discovered  that  the  straps  con- 
fining the  cover  of  the  boot  had  been  cut,  and  the  plaintiff's  trunk 
with  its  contents  had  been  feloniously  stolen  and  carried  off.  There 
was  no  negligence  on  the  part  of  the  defendant  or  his  servants  in 
relation  to  the  trunk,  further  than  may  be  implied  from  the  facts 
above  stated.  The  plaintiff  left  the  stage,  went  back  to  Avon,  and 
reported  his  loss;  and  the  defendant  offered  a  reward,  and  made  all 
proper  efforts  for  the  recovery  of  the  property,  but  without  success. 

The  Telegraph  line  was  established  in  1828.  A  public  notice 
that  baggage  sent  or  carried  in  the  Telegraph  line  would  be  at  the 
risk  of  the  owner  thereof,  printed  on  a  large  sheet,  had  been  uni- 
formly kept  placarded  in  most  of  the  stage  offices  and  public  houses 
from  Albany  to  Buffalo;  and  particularly  such  notice  had  been 
continually  affixed  up  in  the  stage  office  and  principal  public  houses 
at  Utica,  where  the  plaintiff  had  resided  for  the  last  three  years 
before  the  trunk  was  lost.  It  was  stipulated  that  should  the  court 
be  of  opinion  that  the  plaintiff  was  entitled  to  recover,  judgment 
should  be  entered  in  his  favor  for  $116.75,  and  interest  from  July 
20,  1833,  besides  costs. 

Bronson,  J.  Stagecoach  proprietors,  and  other  carriers  by  land 
and  water,  incur  a  very  different  responsibility  in  relation  to  the 
passenger  and  his  baggage.  For  an  injury  to  the  passenger  they 
are  answerable  only  where  there  has  been  a  want  of  proper  care, 
diligence,  or  skill;  but  in  relation  to  baggage  they  are  regarded  as 
insurers,  and  must  answer  for  any  loss  not  occasioned  by  inevitable 
accident  or  public  enemies.  As  the  point,  though  made,  was  not 
discussed  by  the  defendant's  counsel,  I  shall  content  myself  with 
referring  to  a  few  cases  to  prove  that  they  are  liable  as  common 
carriers,  for  the  loss  or  injury  of  the  property  of  the  passenger. 
Orange  Co.  Bank  v.  Brown,  9  Wendell,  85  [322]  ;  Camden  Company 
v.  Burke,  13  id.  611;  Brooke  v.  Pickwick,  4  Bing.  218;  4  Esp.  K, 
177;  2  Kent,  601.  The  fact  that  the  owner  is  present,  or  sends  his 
servant  to  look  after  the  property,  does  not  alter  the  case.  Robin- 
son v.  Dunmore,  2  Bos.  &.  Pull.  418.  Chambre,  J.,  said:  "It  has 
been  determined,  that  if  a  man  travel  in  a  stagecoach  and  take  his 
portmanteau  with  him,  though  he  has  his  eye  upon  the  portmanteau, 
yet  the  carrier  is  not  absolved  from  his  responsibility,  but  will  be 
liable  if  the  portmanteau  be  lost."  The  liability  of  a  carrier  is  like 
that  of  an  innkeeper;  and  it  was  said  in  Cayle's  case,  8  Co.  63  [163], 
that  "  it  is  no  excuse  for  the  innkeeper  to  say  that  he  delivered  the 
^uest  the  key  of  the  chamber  in  which  he  lodged,  and  that  he  left 


LIMITATION    OF   LIABILITY.  467 

the  door  open ;  but  he  ought  to  keep  the  goods  and  chattels  of  his 
guest  there  in  safety."  When  there  is  no  fraud,  the  fact  that  the 
owner  -accompanies  the  property  cannot  affect  the  principle  on  which 
the  carrier  is  charged  in  case  of  loss. 

The  principal  question  in  the  cause  arises  out  of  the  notice  given 
by  the  coach  proprietors,  that  baggage  carried  by  t lie  Telegraph  line 
would  be  at  the  risk  of  the  owner ;  and  the  first  inquiry  is,  whether 
there  was  sufficient  evidence  to  charge  the  plaintiff  with  a  knowl- 
edge of  the  notice.     If  we  are  to  follow  the  current  of  modern  Eng- 
lish decisions  on  this  subject,  it  cannot  be  denied  that  there  was 
evidence  to  be  left  to  a  jury,  and  upon  which  they  might  find  that 
the  plaintiff  had  seen  the  notice.     But  I  think  the  carrier,  if  he  can 
by  any  means  restrict  his  liability,  can  only  do  so  by  proving  actual 
notice  to  the  owner  of  the  property.     I  agree  to  the  rule  laid  down 
by  Best,    C.    J.,   in  Brooke  v.  Pickwick,  4  Bing.  218,    decided  in 
1827,  when  the  courts  of  Westminster  Hall  had  commenced  retra- 
cing their  steps   in  relation  to  the  liability  of  carriers,  and  were 
endeavoring  to   get  back  on  to  the  firm  foundation  of  the  common 
law.     He  said:  "If  coach  proprietors  wish  honestly  to  limit  their 
responsibility,  they  ought  to  announce  their  terms  to  every  individ- 
ual who  applies  at  their  office,  and  at  the  same  time  to  place  in  his 
hands  a  printed  paper,  specifying  the  precise  extent  of  their  engage- 
ment.    If  they   omit  to  do  this,  they  attract  customers  under  the 
confidence  inspired  by  the  extensive  liability  which  the  common  law 
imposes  upon  carriers,  and  then  endeavor  to  elude  that  liability  by 
some   limitation  which  they  have  not  been   at  the  pains  to  make 
known  to  the  individual  who  has  trusted  them." 

I  should  be  content  to  place  my  opinion  upon  the  single  ground 
that  if  a  notice  can  be  of  any  avail,  it  must  be  directly  brought 
home  to  the  owner  of  the  property;  and  that  there  was  no  evidence 
in  this  case  which  could  properly  be  submitted  to  a  jury  to  draw  the 
inference  that  the  plaintiff  knew  on  what  terms  the  coach  proprietor 
intended  to  transact  his  business.  But  other  questions  have  been 
discussed;  and  there  is  another  case  before  the  court  where  the 
judge  at  the  circuit  thought  the  evidence  sufficient  to  charge  the 
plaintiff  with  notice.  It  will  therefore  be  proper  to  consider 
the  other  questions  which  have  been  made  by  the  counsel. 

Can  a  common  carrier  restrict  his  liability  by  a  general  notiee, 
in  any  form,  brought  home  to  the  opposite  party?  Without  intend- 
ing to  go  much  at  large  into  this  vexed  question,  it  will  be  necessary 
to  state  some  leading  principles  relating  to  the  duties  and  liabilities 
of  the  carrier,  -and  the  ground  upon  which  his  responsibility  rests. 

The  rules  of  the  common  law  in  relation  to  common  carriers  are 
simple,  well  defined,  and,  what  is   no   less   important,  well  under- 
stood.    The  carrier  is  liable  for  all  losses  except  those  occasione 
by  the   act  of   God   or  the   public-   enemies.      He   is  regarded  as  an 
insurer  of  the  property  committed  to  his  charge,  and  neither  destruc- 


468  CARRIERS    OF    GOODS. 

tion  by  fire,  nor  robbery  by  armed  men,  will  discharge  him  from 
liability.  Holt,  C.  J.,  in  pronouncing  his  celebrated  judgment  in 
the  case  of  Coggs  v.  Barnard,  2  Ld.  Eaym.  918  [4],  said:  "This  is  a 
politic  establishment,  contrived  by  the  policy  of  the  law  for  the 
safety  of  all  persons,  the  necessity  of  whose  affairs  obliges  them  to 
trust  these  sorts  of  persons,  that  they  may  be  safe  in  their  ways  of 
dealing."  In  Forward  v.  Pittard,  1  T.  E.  27  [385],  where  the 
carrier  was  held  liable  for  a  loss  by  fire,  Lord  Mansfield  said,  that 
"  to  prevent  litigation,  collusion,  and  the  necessity  of  going  into 
circumstances  impossible  to  be  unravelled,  the  law  presumes  against 
the  carrier,  unless  he  shows  it  was  done  by  the  king's  enemies,  or 
by  such  act  as  could  not  happen  by  the  intervention  of  man,  as 
storms,  lightnings,  and  tempests."  And  in  relation  to  a  loss  by 
robbery  he  said,  "  The  true  reason  is,  for  fear  it  may  give  room  for 
collusion,  that  the  master  may  contrive  to  be  robbed  on  purpose,  and 
share  the  spoil."  The  rule  has  been  fully  recognized  in  this  State. 
Colt  v.  McMechen,  6  Johns.  B.  160  [392]  ;  Elliot  v.  Eossell,  10  Johns. 
E.  1 ;  Kemp  v.  Coughtry,  11  Johns.  E.  107.  In  Roberts  v.  Turner, 
12  Johns.  E.  232  [320],  Spencer,  J.,  said,  the  carrier  "is  held 
responsible  as  an  insurer  of  the  goods,  to  prevent  combinations, 
chicanery,  and  fraud." 

A  common  carrier  exercises  a  public  employment,  and  conse- 
quently has  public  duties  to  perform.  He  cannot,  like  the  trades- 
man or  mechanic,  receive  or  reject  a  customer  at  pleasure,  or  charge 
any  price  that  he  chooses  to  demand.  If  he  refuse  to  receive  a 
passenger  or  carry  goods  according  to  the  course  of  his  particular 
employment,  without  a  sufficient  excuse,  he  will  be  liable  to  an 
action;  and  he  can  only  demand  a  reasonable  compensation  for  his 
services  and  the  hazard  which  he  incurs.  2  Ld.  Eay.  917;  Bac. 
Ab.,  Carriers  (B.)  Skin.  279;  1  Salk.  249,  50;  5  Bing.  217;  3  Taunt. 
272,  per  Lawrence,  J.;  2  Kent,  599;  Story  on  Bailments,  328; 
Jeremy  on  Carriers,  59. 

It  has  been  said  that  the  carrier  is  liable  in  respect  of  his  reward. 
Lane  v.  Cotton,  1  Salk.  143  [261].  Lord  Coke  says,  "He  hath  his 
hire,  and  thereby  implicitly  undertaketh  the  safe  delivery  of  the  goods 
delivered  to  him."  Co.  Litt.  89  [a.].  The  carrier  may  no  doubt 
demand  a  reward  proportioned  to  the  services  he  renders  and  the 
risk  he  incurs;  and,  having  taken  it,  he  is  treated  as  an  insurer,  and 
bound  to  the  safe  delivery  of  the  property.  But  the  extent  of  his 
liability  does  not  depend  on  the  terms  of  his  contract;  it  is  declared 
by  law.  His  undertaking,  when  reduced  to  form,  does  not  differ 
from  that  of  any  other  person  who  may  agree  to  carry  goods  from 
one  place  to  another;  and  yet  one  who  does  not  usually  exercise 
this  public  employment  will  incur  no  responsibility  beyond  that  of 
an  ordinary  bailee  for  hire ;  he  is  not  answerable  for  a  loss  by  any 
means  against  which  he  could  not  have  guarded  by  ordinary  dili- 
gence.    It  is  not  the  form  of  the  contract,  but  the  policy  of  the  law. 


LIMITATION    OF   LIABILITY.  469 

which  determines  the  extent  of  the  carrier's  liability.  In  Ansell  v. 
Waterhouse,  2  Chit.  R.  1,  which  was  an  action  on  the  case  against 
the  proprietor  of  a  stagecoach  for  an  injury  to  the  plaintiff's  wife, 
Holroyd,  J.,  said :  "  This  action  is  founded  on  what  is  quite  col- 
lateral to  the  contract,  if  any;  and  the  terms  of  the  contract,  unless 
changing  the  duty  of  a  common  carrier,  are  in  this  case  quite  imma- 
terial. The  declaration  states  an  obligation  imposed  upon  him  by 
the  law.  This  is  an  action  against  a  person,  who,  by  an  ancient 
law,  held  as  it  were  a  public  office,  and  was  bound  to  the  public. 
This  action  is  founded  on  the  general  obligation  of  the  law."  In 
Forward  v.  Pittard,  1  T.  E.  27  [385],  Lord  Mansfield  said:  "It 
appears  from  all  the  cases  for  100  years  back  that  there  are  events 
for  which  the  carrier  is  liable  independent  of  his  contract.  By  the 
nature  of  his  contract,  he  is  liable  for  all  due  care  and  diligence; 
and  for  any  negligence  he  is  suable  on  his  contract.  But  there  is  a 
further  degree  of  responsibility  by  the  custom  of  the  realm,  that  is, 
by  the  common  law ;  a  carrier  is  in  the  nature  of  an  insurer."  See 
also  Hide  v.  Proprietors,  etc.,  1  Esp.  R.  36. 

The  law  in  relation  to  carriers  has  in  some  instances  operated 
with  severity,  and  they  have  been  charged  with  losses  against  which 
no  degree  of  diligence  could  guard.  But  cases  of  this  description 
are  comparatively  of  rare  occurrence;  and  the  reason  why  they  are 
included  in  the  rule  of  the  common  law  is  not  because  it  is  fit  in 
itself  that  any  man  should  answer  without  a  fault,  but  because  there 
are  no  means  of  effectually  guarding  the  public  against  imposition 
and  fraud,  without  making  the  rule  so  broad  that  it  will  sometimes 
operate  harshly.  It  was  well  remarked  by  Best,  C.  J.,  in  Riley  v. 
Home,  5  Bing.  217  [461],  that  "  when  goods  are  delivered  to  the 
carrier,  they  are  usually  no  longer  under  the  eye  of  the  owner;  he 
seldom  follows  or  sends  any  servant  with  them  to  their  place  of  des- 
tination. If  they  should  be  lost  or  injured  by  the  grossest  negli- 
gence of  the  carrier  or  his  servants,  or  stolen  by  them,  or  by  thieves 
in  collusion  with  them,  the  owner  would  be  unable  to  prove  either 
of  1;hese  causes  of  loss.  His  witnesses  must  be  the  carrier's  ser- 
vants, and  they,  knowing  that  they  could  not  be  contradicted,  would 
excuse  their  masters  and  themselves."  These  remarks  lose  little  of 
their  force  when  applied  to  the  case  of  passengers  in  stages,  steam- 
boats, and  railroad  cars.  For  although  they  are  in  the  neighbor- 
hood of  their  property,  it  is  neither  under  their  eye,  nor  have  they 
any  efficient  means  of  protecting  it  against  the  consequences  of  negli- 
gence and  fraud.  The  traveller  is  usually  among  strangers;  his 
property  is  in  the  hands  of  men  who  are  sometimes  selected  with 
little  regard  to  their  diligence  and  fidelity;  and  if  the  remedy  of  the 
owner  in  the  case  of  loss  depend  on  the  question  of  actual  negligence 
or  fraud,  he  must  make  out  his  right  to  recover  by  calling  the  very 
men  whose  recklessness  or  frailty  has  occasioned  the  injury.  It  was 
remarked  by  Best,  C.  J.,  in  Brooke  v.  Pickwick,  4  Bing.  218,  that, 


470  CARRIERS    OF   GOODS. 

"though  coach  proprietors  of  the  present  day  are  a  respectable  and 
opulent  class,  many  of  the  persons  employed  by  them  resemble 
*<liose  whom  the  common  law  meant  to  guard  against." 

There  is  less  of  hardship  in  the  case  of  the  carrier  than  has 
sometimes  been  supposed;  for  while  the  law  holds  him  to  an  extra- 
ordinary degree  of  diligence,  and  treats  him  as  an  insurer  of  the 
property,  it  allows  him,  like  other  insurers,  to  demand  a  premium 
proportioned  to  the  hazards  of  his  employment.  The  rule  is  founded 
upon  a  great  principle  of  public  policy ;  it  has  been  approved  by 
many  generations  of  wise  men ;  and  if  the  courts  were  now  at  liberty 
to  make  instead  of  declaring  the  law,  it  may  well  be  questioned 
whether  they  could  devise  a  system  which,  on  the  whole,  would 
operate  more  beneficially.  I  feel  the  more  confident  in  this  remark 
from  the  fact  that  in  Great  Britain,  after  the  courts  had  been  per- 
plexed for  thirty  years  with  various  modifications  ofN  the  law  in 
relation  to  carriers,  and  when  they  had  wandered  too  far  to  retrace 
their  steps,  the  legislature  finally  interfered,  and  in  all  its  most 
important  features  restored  the  salutary  rule  of  the  common  law. 

The  doctrine  that  a  carrier  might  limit  his  responsibility  by  a 
general  notice  brought  home  to  the  employer,  prevailed  in  England 
for  only  a  short  period.     In  Smith  v.  Home,  8  Taunt.  144,  Burrough, 
J.,  said:  "The  doctrine  of  notice  was  never  known  until  the  case  of 
Forward  v.  Pittard,  1  T.  R.  27  [385],  which  I  argued  many  years 
ago."     That  case  was  decided  in  1785,  and  it  is  remarkable  that  it 
does  not  contain  one  word  on  the  subject  of  notice.     If  that  question 
was  in  any  form  before  the  court,  it  is  not  mentioned  by  the  reporter; 
and  the  decision   was  against   the   carrier,  although  the   loss   was 
occasioned   by    fire,    without   his    default.     The  doctrine  was  first 
recognized  in  Westminster  Hall  in  1804,  when  the  case  of  Nicholson 
v.  Willan,  5  East,  507,  was  decided.     Lord  Ellenborough  said,  the 
practice  of  making  a  "special  acceptance"  had  prevailed  for  a  long 
time,  and  that  there  was  "  no  case  to  be  met  with  in  the  books  in 
which  the  right  of  a  carrier  thus  to  limit  by  special  contract  his  own 
responsibility  has  ever  been  by  express  decision  denied."     What- 
ever maybe  the  rule  where  there  is  in  fact  a  special  contract,  the 
learned  judge  could  not  have  intended  to    say,  that  a  carrier  had 
for  a  long  time  been  allowed  to  limit  his  liability  by  a  general 
notice,  or   that  a  special  contract  had  .  been   implied  from  such  a 
notice ;  for  he  refers  to  no  case  in  support  of  the  position,  and  would 
have  searched  in  vain  to  find  one.     Only  eleven  years   before  (in 
1793),  Lord  Kenyon  had  expressly  laid  down  a  different  rule  in  Hide 
v.  Proprietors,  etc.  1  Esp.  R.  36.     He  said,  "  There  is  a  difference 
where  a  man  is  chargeable  by  law  generally,  and  where  on  his  con- 
tract.    Where  a  man  is  bound  to  any  duty  and  chargeable  to  a  certain 
extent  by  the  operation  of  law,  in  such  case,  he  cannot  by  any  net  of 
his  own  discharge  himself."     And  he  put  the  case  of  common  car- 
riers,  and  said,  they  cannot  discharge  themselves  "by  any  act  of 


LIMITATION    OF    LIABILITY.  471 

their  own,  as  hy  giving  notice,  for  example,  to  that  effect."  This 
case  was  afterwards  before  the  K.  B.,  but  on  another  point  (1  T.  R. 
389). 

The  doctrine  in  question  was  not  received  in  Westminster  Hall 
without  much  doubt;  and  although  it  ultimately  obtained  something 
like  a  firm  footing,  many  of  the  English  judges  have  expressed  their 
regret  that  it  was  ever  sanctioned  by  the  courts.  Departing  as  it 
did  from  the  simplicity  and  certainty  of  the  common-law  rule,  it 
proved  one  of  the  most  fruitful  sources  of  legal  controversy  which 
has  existed  in  modern  times.  When  it  was  once  settled  that  a 
carrier  might  restrict  his  liability  by  a  notice  brought  home  to  his 
employer,  a  multitude  of  questions  sprung  up  in  the  courts  which  no 
human  foresight  could  have  anticipated.  Each  carrier  adopted  such 
a  form  of  notice  as  he  thought  best  calculated  to  shield  himself  from 
responsibility  without  the  loss  of  employment;  and  the  legal  effect 
of  each  particular  form  of  notice  could  only  be  settled  by  judicial 
decision.  Whether  one  who  had  given  notice  that  he  would  not  be 
answerable  for  goods  beyond  a  certain  value  unless  specially  entered 
and  paid  for,  was  liable  in  case  of  loss  to  the  extent  of  the  value 
mentioned  in  the  notice,  or  was  discharged  altogether;  whether, 
notwithstanding  the  notice,  he  was  liable  for  a  loss  by  negligence, 
and  if  so,  what  degree  of  negligence  would  charge  him;  what  should 
be  sufficient  evidence  that  the  notice  came  to  the  knowledge  of  the 
employer,  whether  it  should  be  left  to  the  jury  to  presume  that  he 
saw  it  in  a  newspaper  which  he  was  accustomed  to  read,  or  observed 
it  posted  up  in  the  office  where  the  carrier  transacted  his  business; 
and  then  whether  it  was  painted  in  large  or  small  letters,  and 
whether  the  owner  went  himself  or  sent  his  servant  with  the  goods, 
and  whether  the  servant  could  read,  — these  and  many  other  ques- 
tions were  debated  in  the  courts,  while  the  public  suffered  an  almost 
incalculable  injury  in  consequence  of  the  doubt  and  uncertainty 
which  hung  over  this  important  branch  of  the  law.  See  1  Bell's 
Com.  474.  After  years  of  litigation,  parliament  interfered  in  1830 
and  relieved  both  the  courts  and  the  public,  by  substantially  re- 
asserting the  rule  of  the  common  law.     Stat.  1  AVm.  4,  c.  68. 

Without  going  into  a  particular  examination  of  the  English  cases, 
it  is  sufficient  to  say  that  the  question  has  generally  been  presented, 
on  a  notice  by  the  carrier  that  he  would  not  be  responsible  for  any 
loss  beyond  a  certain  sum,  unless  the  goods  were  specially  entered 
and  paid  for;  and  the  decisions  have  for  the  most  part  only  gone  far 
enough  to  say  that  if  the  owner  do  not  comply  with  the  notice  1  in- 
stating the  true  value  of  the  goods  and  having  them  properly 
entered,  the  carrier  will  be  discharged.  In  these  cases,  the  carrier 
had  not  attempted  to  exclude  all  responsibility.  But  there  are  two 
nisi  prius  decisions  which  allow  the  carrier  to  cast  off  all  liability 
whatever.  In  Maving  v.  Todd,  1  Stark.  R.  72,  the  defendant  had 
given  notice  that  he  would  not  answer  for  a  loss  by  fire,  and  such  a 


472  CARRIERS   OF   GOODS. 

loss  having  occurred,  Lord  Ellenborough  thought  that  carriers  might 
exclude  their  liability  altogether,  and  nonsuited  the  plaintiff.  In 
Leeson  v.  Holt,  1  Stark.  11.  186,  tried  in  1816,  he  made  a  like 
decision ;  though  he  very  justly  remarked,  that  "  if  this  action  had 
been  brought  twenty  years  ago,  the  defendant  would  have  been 
liable;  since  by  the  common  law  a  carrier  is  liable  in  all  cases  except 
two."  We  have  here,  what  will  be  found  in  many  of  the  cases,  a 
very  distinct  admission  that  the  courts  had  departed  from  the  law 
of  the  land,  and  allowed  what  Jeremy's  Treatise  on  Carriers,  35,  6, 
very  properly  terms  "recent  innovations." 

Some  of  the  cases  which  have  arisen  under  a  general  notice  have 
proceeded  on  the  ground  of  fraud  (Batson  v.  Donovan,  4  B.  &  Aid. 
21) ;  others  on  the  notion  of  a  special  acceptance  or  special  contract 
(Nicholson  v.  Willan,  5  East,  507;  Harris  v.  Packwood,  3  Taunt. 
271  [456]);  while  in  some  instances  it  is  difficult  to  say  what  general 
principle  the  court  intended  to  establish. 

So  far  as  the  cases  have  proceeded  on  the  ground  of  fraud,  and 
can  properly  be  referred  to  that  head,  they  rest  on  a  solid  founda- 
tion; for  the  common  law  abhors  fraud,  and  will  not  fail  to  over- 
throw it  in  all  the  forms,  whether  new  or  old,  in  which  it  may  be 
manifested.     As  the  carrier  incurs  a  heavy  responsibility,  he  has  a 
right  to  demand  from  the  employer  such  information  as  will  enable 
him  to  decide  on  the  proper  amount  of  compensation  for  his  services 
and  risk,  and  the  degree  of  care  which  he  ought  to  bestow  in  dis- 
charging his  trust;  and  if  the  owner  giv^  an  answer  which  is  false 
in  a  material  point,  the  carrier  will  be  absolved  from  the   conse- 
quences of  any   loss   not  occasioned  by  negligence  or  misconduct. 
The  case  of  Kenrig  v.  Eggleston,   Aleyn,  93,  was  decided  in  1649. 
The  plaintiff  delivered  a  box  to  the  porter  of  the  carrier,  saying, 
"there  was  a  book  and  tobacco  in  the  box,"  when  in  truth  it  con- 
tained £100  in  money,  besides.     Roll,  J.,  thought  the  carrier  was 
nevertheless   liable  for  a  loss  by  robbery;  "but  in  respect  of  the 
intended  cheat  to  the  carrier,  he  told  the  jury  they  might  consider 
him  in  damages."     The  jury,  however,  found  the  whole  sum  (abat- 
ing the  carriage)  for  the  plaintiff,  quod  durum  videbatur  circumstan- 
tibus.     In  Gibbon  v.  Faynton,  4  Burr.  2298  [452] ,  Lord  Mansfield 
said,  this  was  a  case  of  fraud,  and  he  "should  have  agreed  in  opinion 
with  the   circumstantibas."     In    Tyly  v.   Morrice,   Carth.  485,  two 
bags  of  money  sealed  up  were  delivered  to  the  carrier,  saying  they 
contained  £200,  and  he  gave  a  receipt  for  the  money.     In  truth  the 
bags  contained  £450,  and  the  carrier,  having  been  robbed,  paid  the 
£200;  and  in  this  action  brought  to  recover  the  balance,  the  Chief 
Justice  told  the  jury  that  "since  the  plaintiffs  had  taken  this  course 
to  defraud  the  carrier  of  his  reward,  they  should  find  for  the  defend- 
ant."    And  the  same  point  was  decided  in  another  action  against 
the  same  carrier.     In  Gibbon  v.  Paynton,  4  Burr.  2298  [452],  £100 
in  money  was  hid  in  hay  in  an  old  nail-bag,  which  fact  the  plaintiff 


LIMITATION    OF   LIABILITY.  473 

concealed  from  the  carrier;  and  the  money  having  been  stolen,  the 
court  held  that  this  fraud  would  discharge  the  defendant.  In  the 
case  of  the  Orange  Co.  Bank  v.  Brown,  9  Wendell,  85  [322], 
the  agent  of  the  plaintiffs  put  $11,000  in  bank  bills  in  his  trunk, 
and  delivered  it  to  the  captain  of  the  steamboat  as  his  baggage.  The 
court  held  that  the  term  baggage  would  only  include  money  for  the 
expenses  of  travelling,  and  not  a  large  sum,  as  in  this  case,  taken 
for  the  mere  purpose  of  transportation;  and  it  was  said  that  the 
conduct  of  the  plaintiff's  agent  was  a  virtual  concealment  as  to  the 
money,  that  "his  representation  of  his  trunk  and  the  contents  as 
baggage  was  not  a  fair  one,  and  was  calculated  to  deceive  the  cap- 
tain." The  owner  is  not  bound  to  disclose  the  nature  or  value  of 
the  goods;  but  if  he  is  inquired  of  by  the  carrier,  he  must  answer 
truly.     Phillips  v.  Earle,  8  Pick.  182. 

Fraud  cannot,  I  think,  be  imputed  to  the  owner,  from  the  mere 
fact  that  he  delivers  goods  after  having  seen  a  general  notice  pub- 
lished by  the  carrier,  whatever  may  be  its  purport.  If  the  carrier 
wishes  to  ascertain  the  extent  of  his  risk,  he  should  inquire  at  the 
time  the  goods  are  delivered;  and  then  if  he  is  not  answered  truly, 
he  will  have  a  defence.  See  4  Bing.  218.  A  different  rule  prac- 
tically changes  the  burden  of  proof.  At  the  common  law  it  is 
enough  that  the  owner  prove  the  undertaking  of  the  carrier,  and 
that  the  goods  did  not  reach  their  destination.  But  this  doctrine  of 
implying  fraud  from  a  notice  requires  him  to  go  further,  and  show 
that  he  complied  with  the  terms  of  the  advertisement.  He  may 
have  informed  the  carrier  truly  of  the  value  of  the  goods :  there  may 
be  no  fraud,  but  still  he  is  required  to  prove  himself  innocent  before 
he  can  recover.  Independent  of  a  notice,  the  onus  would  rest 
where,  upon  general  principles,  it  ought  to  rest,  on  him  who  imputes 
fraud;  and  the  carrier  could  not  discharge  himself  without  showing 
some  actual  misrepresentation  or  fraudulent  concealment.  It  does 
not  lie  on  the  employer  to  show  how  the  loss  was  occasioned,  or 
that  he  has  acted  properly;  but  the  law  presumes  against  the  carrier, 
until  he  proves  that  the  loss  happened  by  means  or  under  circum- 
stances for  which  he  is  not  answerable.  1  T.  R.  33;  Murphy  v. 
Staton,  3  Munf.  (Va.)  239;  Story  on  Bail.  338. 

But  it  is  enough  for  this  case,  that  the  question  of  fraud  can  never 
arise  under  such  notice  as  was  given  by  the  defendant.  He  did  not 
say  to  the  public  that  he  would  not  be  answerable  for  baggage 
beyond  a  certain  sum,  unless  the  owner  disclosed  the  value;  he  said 
he  would  not  be  answerable  in  any  event.  It  was,  in  effect,  a  notice 
that  he  would  not  abide  the  liabilities  which  the  law,  upon  prin- 
ciples of  public  policy,  had  attached  to  his  employment.  If  the 
notice  can  aid  the  defendant  in  any  form,  it  certainly  does  not  go  to 
the  question  of  fraud. 

The  only  remaining  ground  of  argument  in  favor  of  the  carrier 
is,  that  a  special  contract  may  be  inferred  from  the  notice.     Inde- 


474  CARRIERS   OF   GOODS. 

pendent  of  the  modern  English  cases,  it  seems  never  to  have  been 
direct]}7  adjudged  that  the  liability  of  the  carrier  can  be  restricted 
by  a  special  contract.  Noy  (Maxims),  92,  after  speaking  of  a  loss 
by  negligence,  says:  "If  a  carrier  would  refuse  to  carry,  unless  a 
promise  were  made  to  him  that  he  should  not  be  charged  with  any 
such  miscarriage,  that  promise  were  void."  If  he  cannot  stipulate 
for  a  partial,  it  is  difficult  to  see  how  he  can  for  a  total,  exemption 
from  liability.  In  Nicholson  v.  Willan,  5  East,  513,  Lord  Ellen- 
borough  found  no  direct  adjudication  in  favor  of  the  position  that  a 
carrier  may  limit  his  responsibility  by  a  special  contract;  but  he 
relied  on  the  fact  that  such  an  exemption  had  never  been  "by 
express  decision  denied."  Although  this  mode  of  reasoning  is  not 
the  most  conclusive,  I  shall  not  deny  that  the  carrier  may,  by 
express  contract,  restrict  his  liability;  for,  though  the  point  has 
never  been  expressly  adjudged,  it  has  often  been  assumed  as  good 
law.  Aleyn,  93;  4  Co.  84,  note  to  Southcote's  case;  4  Burr.  2301, 
per  Yates,  J.,  1  Vent.  190,  238;  Peake,  N.  P.  Cas.  150;  2  Taunt. 
271;  1  Stark.  E.  186.  If  the  doctrine  be  well  founded,  it  must,  I 
think,  proceed  on  the  ground  that  the  person  intrusted  with  the 
goods,  although  he  usually  exercises  that  employment,  does  not  in 
the  particular  case  act  as  a  common  carrier.  The  parties  agree  that 
in  relation  to  that  transaction  he  shall  throw  off  his  public  character, 
and,  like  other  bailees  for  hire,  only  be  answerable  for  negligence 
or  misconduct.  If  he  act  as  a  carrier,  it  is  difficult  to  understand 
how  he  can  make  a  valid  contract  to  be  discharged  from  a  duty  or 
liability  imposed  upon  him  by  law. 

But,  conceding  that  there  may  be  a  special  contract  for  restricted 
liability,  such  a  contract  caunot,  I  think,  be  inferred  from  a  general 
notice  brought  home  to  the  employer.  The  argument  is,  that  where 
a  party  delivers  goods  to  be  carried  after  seeing  a  notice  that  the 
carrier  intends  to  limit  his  responsibility,  his  assent  to  the  terms  of 
the  notice  may  be  implied.  But  this  argument  entirely  overlooks  a 
very  important  consideration.  Notwithstanding  the  notice,  the 
owner  has  a  right  to  insist  that  the  carrier  shall  receive  the  goods 
subject  to  all  the  responsibilities  incident  to  his  employment.  If 
the  delivery  of  goods  under  such  circumstances  authorizes  an  impli- 
cation of  any  kind,  the  presumption  is  as  strong,  to  say  the  least, 
that  the  owner  intended  to  insist  on  his  legal  rights,  as  it  is  that  he 
was  willing  to  yield  to  the  wishes  of  the  carrier.  If  a  coat  be 
ordered  from  a  mechanic  after  he  has  given  the  customer  notice  that 
he  will  not  furnish  the  article  at  a  less  price  than  one  hundred 
dollars,  the  assent  of  the  customer  to  pay  that  sum,  though  it  be 
double  the  value,  may  perhaps  be  implied;  but  if  the  mechanic  had 
been  under  a  legal  obligation  not  only  to  furnish  the  coat,  but  to  do 
so  at  a  reasonable  price,  no  such  implication  could  arise.  Now  the 
carrier  is  under  a  legal  obligation  to  receive  and  convey  the  goods 
safely,  or  answer  for  the  loss.     He  has   no  right  to  prescribe  any 


LIMITATION    OF   LIABILITY.  475 

other  terms ;  and  a  notice  can  at  the  most  only  amount  to  a  proposal 
for  a  special  contract,  which  requires  the  assent  of  the  other  party. 
Putting  the  matter  in  the  most  favorable  light  for  the  carrier,  the 
mere  delivery  of  goods  after  seeing  a  notice  cannot  warrant  a  stron  i 
presumption  that  the  owner  intended  to  assent  to  a  restricted  liabil- 
ity on  the  part  of  the  carrier,  than  it  does  that  he  intended  to  insist 
on  the  liabilities  imposed  by  law;  and  a  special  contract  cannot  be 
implied  where  there  is  such  an  equipoise  of  probability 

Making  a  notice  the  foundation  for  presuming  a  special  contri 
is  subject  to  a  further  objection.  It  changes  the  burden  of  proof. 
Independent  of  the  notice,  it  would  be  sufficient  for  the  owner  to 
prove  the  delivery  and  loss  of  the  goods:  and  it  would  then  lie  on 
the  carrier  to  discharge  himself  by  showing  a  special  contract  for  a 
restricted  liability.  But  giving  effect  to  the  notice  makes  it  nei 
sary  for  the  owner  to  go  beyond  the  delivery  and  loss  of  the  goods, 
and  prove  that  he  did  not  assent  to  the  proposal  for  a  limited 
responsibility.  Instead  of  leaving  the  onus  of  showing  assent  on 
him  who  sets  up  that  affirmative  fact,  it  is  thrown  upon  the  other 
party,  and  he  is  required  to  prove  a  negative,  that  he  did  not 
assent. 

After  all  that  has  been  or  can  be  said  in  defence  of  these  notices, 
whether  regarded  either  as  a  ground  for  presuming  fraud  or  imph  - 
ing  a  special  agreement,  it  is  impossible  to  disguise  the  fact  that 
they  are  a  mere  contrivance  to  avoid  the  liability  which  the  law  has 
attached  to  the  employment  of  the  carrier.  If  the  law  is  too  rigid, 
it  should  be  modified  by  the  legislature,  and  not  by  the  courts.  It 
has  been  admitted  over  and  over  again  by  the  most  eminent  English 
judges,  that  the  effect  given  to  these  notices  was  a  departure  from 
the  common  law;  and  they  have  often  regretted  their  inability  fco 
get  back  again  to  that  firm  foundation.  The  doctrine  that  a  carrier 
may  limit  his  responsibility  by  a  notice  was  wholly  unknown  to 
the  common  law  at  the  time  of  our  revolution.  It  has  never  been 
received  in  this,  nor,  so  far  as  I  have  observed,  in  any  of  the  other 
States.  The  point  has  been  raised,  but  not  directly  decided.  Barney 
v.  Prentiss,  4  Har.  &  Johns.  R.  317;  Dwight  v.  Brewster,  1  Pick. 
50  [304].  Should  it  now  be  received  among  us,  it  will  be  after  it 
has  been  tried,  condemned,  and  abandoned  in  that  country  to  which 
we  have  been  accustomed  to  look  for  light  on  questions  of  juris- 
prudence. 

The  Act  of  Parliament  already  mentioned  enumerates  vari< 
articles  of  great  value  in  proportion  to  the  bulk,  and  others  which 
are  peculiarly  exposed  to  damage  in  transportation,  and  declares 
that  the  carrier  shall  not  be  liable  for  the  loss  or  injury  of  those 
articles  when  the  value  exceeds  £10,  unless  at  the  time  of  delivery 
the  owner  shall  declare  the  nature  and  value  of  the  property,  and 
pay  the  increased  charge  which  the  carrier  is  allowed  to  make  for 
his  risk  and  care.     If  the  owner  complies  with  this  requirement, 


476  CARRIERS    OF   GOODS. 

the  carrier  must  give  him  a  receipt  for  the  goods,  "acknowledging 
the  same  to  have  been  insured,"  and  if  he  refuse  to  give  the  receipt, 
he  remains  "liable  and  responsible  as  at  the  common  law"  The 
provision  extends  to  the  proprietors  of  stagecoaches  as  well  as  all 
other  carriers,  and  to  property  which  may  "accompany  the  person 
of  any  passenger,"  as  well  as  other  goods;  and  the  statute  declares 
that  after  the  first  day  of  September,  1830,  "no public  notice  or  decla- 
ration heretofore  made,  or  hereafter  to  be  made,  shall  be  deemed 
or  construed  to  limit,  or  in  any  wise  affect  the  liability  at  common  law  " 
of  any  carriers;  but  that  all  and  every  such  carrier  shall  be  "liable 
as  at  the  common  law  to  answer  "  for  the  loss  or  injury  of  the  prop- 
erty, "  any  public  notice  or  declaration  by  them  made  and  given 
contrary  thereto,  or  in  any  wise  limiting  such  liability,  notwith- 
standing." The  only  modification  of  the  common-law  rule  in  rela- 
tion to  carriers  made  by  this  statute,  is  that  which  requires  the 
owner,  without  a  special  request,  to  disclose  the  nature  and  value  of 
the  package,  when  it  contains  articles  of  a  particular  description. 
The  premium  for  care  and  risk,  the  carrier  might  have  required 
before.  In  relation  to  all  articles  not  enumerated,  and  in  relation 
to  those  also,  if  the  owner  comply  with  the  requirements  of  the  act, 
the  carrier  is  declared  liable  as  an  insurer,  and  must  answer  "as 
at  the  common  law."  The  whole  doctrine  which  had  sprung  up 
under  notices  is  cut  up  by  the  roots,  and  in  such  language  as 
renders  it  apparent  that  the  legislature  deemed  it  an  innovation  on 
the  law  of  the  land. 

If  after  a  trial  of  thirty  years  the  people  of  Great  Britain,  whose 
interests  and  pursuits  are  not  very  dissimilar  to  our  own,  have  con- 
demned the  whole  doctrine  of  limiting  the  carrier's  liability  by  a 
notice ;  if  after  a  long  course  of  legal  controversy  they  have  retraced 
their  steps,  and  returned  to  the  simplicity  and  certainty  of  the  com- 
mon-law rule,  —  we  surely  ought  to  profit  by  their  experience,  and 
should  hesitate  long  before  we  sanction  a  practice  which  not  only 
leads  to  doubt  and  uncertainty  concerning  the  rights  and  duties  of 
the  parties,  but  which  encourages  negligence,  and  opens  a  wide  door 
to  fraud. 

If  the  policy  of  the  law  in  relation  to  carriers  were  more  ques- 
tionable than  I  think  it  is,  it  would  be  the  business  of  the  legis- 
lature, and  not  of  the  courts,  to  apply  the  proper  remedy.  The 
plaintiff  is  entitled  to  judgment  in  pursuance  of  the  stipulation  con- 
tained in  the  case.1 

1  A  lengthy  opinion  by  Cowen,  J.,  on  the  same  question  was  rendered  at  the  sam* 
term  in  Cole  v.  Goodwin,  19  Wend.  251. 


LIMITATION    OF    LIABILITY.  477 

JUDSON  v.   WESTERN   R.    CO. 

6  Allen  (Mass.),  486.     1863. 

Contract  in  which  the  plaintiff  seeks  to  charge  the  defendants  as 
common  carriers,  for  the  loss  of  a  quantity  of  dressed  deer-skins, 
which  were  in  the  defendants'  freight  depot  at  East  Albany  on  the 
evening  of  the  5th  of  July,  1861,  when  it  with  all  its  contents  was 
destroyed  by  an  accidental  fire. 

At  the  second  trial  in  the  Superior  Court,  before  Putnam,  J.,  after 
the  decision  reported  in  4  Allen,  520,  there  was  evidence  tending  to 
show,  and  it  was  found  by  the  jury,  that  on  the  afternoon  of  the  5th 
of  July,  '1861,  two  boxes,  marked  "G.  C.  Judson,  Springfield, 
Mass.,  by  railroad,"  were  delivered  by  the  New  York  Central  Rail- 
road Company  to  the  defendants  at  East  Albany,  for  immediate 
transportation,  with  the  necessary  vouchers  and  expense  bills ;  and 
it  further  appeared  that  the  defendants  have  for  the  past  ten  years 
issued  freight  tariffs,  which  were  in  force  in  July,  1861,  containing 
among  other  provisions  the  following:  "No  risk  assumed  beyond 
$ 200  on  any  one  package  except  by  special  agreement.  All  goods 
and  merchandise  will  be  at  the  risk  of  the  owners  while  in  the  cor- 
poration's storehouses,  and  no  responsibility  will  be  admitted  for 
any  loss  or  injury  except  such  as  may  arise  by  fire  from  the  loco- 
motive engines,  or  by  negligence  of  the  agents  of  the  corporation; 
nor  for  a  greater  amount  than  $200  on  any  one  package,  except  by 
special  agreement."  These  tariffs  were  posted  in  all  the  freight- 
houses  of  the  corporation,  and  liberally  distributed  to  the  public, 
and,  before  the  5th  of  July,  1861,  a  large  number  of  these  freight 
tariffs  were  delivered  by  the  defendants  to  the  freight  agents  of  the 
New  York  Central  Railroad  Company  at  Albany.  A  notice  similar 
to  that  contained  in  the  freight  tariffs  was,  and  for  many  years  had 
been,  inserted  in  the  printed  receipts  given  for  goods  delivered  at 
the  several  stations  of  the  defendants  for  transportation,  but  the 
defendants  did  not  propose  to  bring  these  notices  home  to  the  plain- 
tiff in  any  other  way  than  as  above  stated;  and  the  plaintiff  himself 
testified  that  he  had  never  seen  them,  and  was  ignorant  of  their 
existence. 

The  New  York  Central  Railroad  Company  received  the  boxes 
from  the  plaintiff's  agent,  at  Eonda,  in  the  State  of  New  York,  and 
gave  for  them  a  shipping  receipt  which  contained  the  following 
stipulation,  amongst  others :  "  Goods  or  property  consigned  to  any 
place  off  the  company's  line  of  road,  or  to  any  point  or  place  beyond 
its  termini,  will  be  sent  forward  with  as  reasonable  despatch  as  the 
general  business  of  the  corporation  at  its  warehouse  within  men- 
tioned will  admit,  by  a  carrier  or  freight  man,  when  there  are  such 


478  CARRIEES   OF    GOODS. 

known  to  the  station  agent  at  said  warehouse  willing  to  receive  the 
same,  unconditionally,  for  transportation,  the  company  acting,  for 
the  purpose  of  delivery  to  such  carrier  or  freight  man,  as  the  agents 
of  the  consignor  or  consignee,  and  not  as  carriers." 

The  defendants  requested  the  court  to  instruct  the  jury  that  the 
limitations  and  conditions  contained  in  their  tariff  and  freight 
receipts,  brought  home  to  the  knowledge  of  the  agents  of  the  New 
York  Central  Kailroad  Company  as  above  stated,  would  exempt 
them  from  all  liability  for  the  loss  of  the  goods,  or  in  any  event 
would  exempt  them  from  liability  beyond  $200  on  each  parcel.  The 
judge  declined  so  to  rule. 

The  jury  returned  a  verdict  for  the  plaintiff,  with  $1020.93 
damages,  and  the  case  was  reported  for  the  consideration  of  this 
court. 

Bigelow,  C.  J.  It  would  not  be  profitable  to  enter  upon  a  cita- 
tion and  discussion  of  the  numerous  and  conflicting  cases  bearing 
on  the  question  of  the  rights  of  a  common  carrier,  by  a  general  notice, 
to  absolve  himself  entirely  from  his  common-law  liability  for  property 
intrusted  to  his  care,  or  to  modify  and  limit  his  responsibility  by  a 
mere  constructive  notice  to  those  who  may  have  occasion  to  place 
goods,  wares,  and  merchandise  in  his  keeping  for  the  purpose  of 
transportation.  A  careful  examination  of  the  authorities  would  not 
lead  to  any  very  satisfactory  result,  or  throw  much  light  on  the  real 
principles  on  which  the  respective  rights  and  duties  of  carriers  and 
the  public  mainly  depend.  A  very  full  and  clear  statement  of  the 
results  arrived  at  in  the  leading  cases  on  the  subject  can  be  found 
in  the  elementary  writers,  especially  in  Redfield  on  Railways,  2G4; 
Angell  on  Carriers,  §§  232-245;  1  Parsons  on  Con.  707. 

There  is,  however,  one  conclusion  which  is  fully  supported  by  the 
weight  of  authority  in  the  American  courts,   concerning  which  no 
serious  doubt  can  be  entertained;  that  is,  that  a  public  carrier  may 
enter  into  a  special  contract  with  his  employer  by  which  he  may 
stipulate  for  a  partial   or  entire  exoneration  from  his  liability  at 
common  law  as  an  insurer  of  property  committed  to  his  custody,  and 
that  such   contract   is  not  contrary  to  public  policy,  or  invalid  as 
transcending  the  just  limits  of  the  right  of  parties  to  regulate  their 
dealings  by  special  stipulations.     As  a  necessary  corollary  of  this 
conclusion,  it  is  also  held  in  the  best-considered  cases  and  by  the 
most  approved  text-writers,  that  a  notice  by  a  carrier  that  he  will 
not  assume  the  ordinary  responsibilities  imposed  on  him  by  law,  if 
brought  home  to  the  owner  of  goods  delivered  for  transportation, 
and  assented  to  clearly  and  unequivocally  by  him,  will  be  binding 
and   obligatory  upon  him,  because  it  is  tantamount  to  an  express 
contract  that  the  goods  shall  be  carried  on  the  terms  specified  in 
such  notice.     To  this  extent,  the  doctrine  that  a  carrier  may  limit 
or  modify  his  liability  seems  to  be  most  just  and  reasonable.     Inas- 
much as  the  rule  of  law  which  holds  a  carrier  to  the  responsibility 


LIMITATION    OF    LIABILITY.  479 

of  an  insurer,  except  in  certain  special  cases,  is  founded  in  a  policy 
which  is  designed  solely  for  the  security  and  benefit  of  the  o. 
goods,  there  can  be  no  sufficient  reason  for  regarding  the  rule  as 
absolutely  inflexible  or  irrepealable,  when  the  party,  in  whose  favor 
it  will  operate,  directly  or  by  necessary  implication  consents  to 
waive  it,  or  agrees  to  an  essential  modification  of  his  own  rights 
under  it. 

But  it  is  a  very  different  proposition  to  assert  that  a  common  car- 
rier may  escape  his  legal  liability  or  materially  change  it  by  a  general 
notice  to  all  persons  that  he  will  not  be  responsible  for  the  loss  or 
injury  of  property  intrusted  to  his  custody,  or  only  liable  therefor 
under  such  conditions  and  limitations  as  he  may  think  proper  to 
impose.     A  common  carrier  is  in  a  certain  sense  a  public  servant, 
exercising  an  employment  not  merely  for  his  own  emolument  and 
advantage,  but  for  the  convenience  and  accommodation  of  the  com- 
munity in  which  he  pursues  his  calling.     The  law  imposes  on  him 
certain  duties  and  responsibilities  different  from  and  greater  than 
those  which  attach  to  an  occupation  of  a  purely  private  nature,  in 
regard  to  the  conduct   of  which  the  public   have  no  interest,  and 
which  can  be  carried  on  at  the  option  or  according  to  the  pleasure  of 
the  person  who  is  engaged  in  it.     A  common  carrier  cannot  legally 
refuse  to  transport  property  of  a  kind  which  comes  within  the  class 
which  he  usually  carries  in  the  course  of  his  employment,  if  it  is 
tendered  to  him  at  a  suitable  time  and  place,  with  an  offer  of  a 
reasonable   compensation.      Like    an    innkeeper,    he    is    obliged   to 
exercise  his  calling  upon  due  request  under  proper  circumstances, 
and  is  liable  to  an  action  for  damages  if  he  wrongfully  refuses  to 
do  so.     A  legal  obligation  rests  upon  him  to  assume  the  duty  which 
he  holds  himself  out  as  ready  to  perform,  and  a  correlative  right 
belongs  to  the  owner  of  goods  to  ask  for  and  require  their  reception 
and  transportation  upon  the  terms  of  liability  fixed  and  defined  by 
the  established  rules   of  law.     The  carrier  has  not  the  option  to 
accept  or  refuse  the  carriage  of  the  goods  at  his  pleasure;  but  the 
person  seeking  to  have  them  transported  can  choose  whether  they 
shall  be  carried  without  any   restriction   of  the  carrier's    duty  as 
prescribed  by  law,  or  whether  he  will  waive  a  portion  of  his  rights, 
and  consent  to  a  modification  of  the  legal  liability  which  attaches 
to  the  carrier.     Such  being  the  legal  relation  which  subsists  between 
a  common  carrier  and  his  employer,  it  certainly  would  be  inconsis- 
tent with  it  to  hold  that  a  carrier,  by  a  mere  notice  brought  home  to 
the  owner  of  goods  intrusted  to  his  care  that  he  did  not  intend  to 
assume  all  the  liabilities  of  his  calling,  could  escape  or  materially 
change  the  responsibility  winch  the  law  annexes  to  the  contra  ;t 
the  parties.     It  would  in  effect  put  it  in  the  power  of  the  carrier  to 
abrogate  the  rules  of  law  by  which  the  exercise  of  his  employment 
is  regulated  and  governed.     Certainly  such  a  notice,  even  if  shown 
to  have  been  within  the  knowledge  of  the  owner  of  goods,  would,  in 


480  CARRIERS    OF    GOODS. 

the  absence  of  evidence  of  his  direct  assent  to  its  terms,  afford  no 
sufficient  ground  for  the  inference  that  he  had  voluntarily  agreed 
without  any  consideration  to  relinquish  and  give  up  the  valuable 
right  of  having  his  goods  carried  at  the  risk  of  the  carrier.  On  the 
contrary,  it  would  be  quite  as  reasonable  to  infer  under  such  circum- 
stances that  the  carrier  did  not  intend  to  rely  upon  a  notice  upon 
which  he  could  not  legally  insist,  as  that  the  owner  of  goods  meant 
to  surrender  a  right  to  which  he  was  entitled  by  law.  In  such  case, 
mere  silence  cannot  be  said  to  amount  to  acquiescence.  The  leading 
cases  in  the  American  courts  in  which  these  doctrines  have  been 
recognized  and  established  are  New  Jersey  Steam  Navigation  Co.  v. 
Merchants'  Bank,  6  How.  (U.  S.)  344;  Farmers'  &  Mechanics'  Bank 
v.  Champlain  Transportation  Co.,  23  Verm.  186,  205;  Kimball  v. 
Kutland  &  Burlington  Railroad,  26  Verm.  247;  Moses  v.  Boston  & 
Maine  Railroad,  4  Fost.  (N.  H.)  71.  See  also  the  recent  English 
case  of  Garton  v.  Bristol  &  Exeter  Railway,  1  Best  &  Smith,  112, 
161. 

The  application  of  these  principles  to  the  present  case  is  decisive 
against  the  right  of  the  defendants  to  insist  on  the  instructions  for 
which  they  asked  at  the  trial.     It  is  not  contended  that  the  plaintiff 
had  any  actual  knowledge  of  the  notice  issued  by  the  defendants, 
containing  a  limitation   of   their  common-law  liability  as  carriers. 
If  he  had  any  knowledge  at  all,  it  was  at  most  only  constructive, 
through  the  New  York   Central   Railroad  Company,  who   received 
the  goods  for  transmission  over  their  own  road,  to  be  delivered  to 
the  defendants  to  be  forwarded  over  a  portion  of  their  route.     There 
is  no  fact  in  the  case  from  which  any  assent  by  the  plaintiff  to  the 
terms  of  the  notice  can  be  inferred.     One  portion  of  the  notice  on 
which  the  defendants  rely  goes  to  the  extent  of  repudiating  all  lia- 
bility for  the  loss  or  injury  of  goods  delivered  to  the  defendants  and 
in  process  of  transportation,  except  such  as  might  be  caused  by  fire 
from  the  locomotive  engines  or  by  the  negligence  of  the  agents  of 
the  corporation.     This  certainly  was  not  binding  on  the  plaintiff. 
Equally  invalid  was  that  portion  of  the  notice  which  announced  that 
the  defendants  would  not  be  liable  for  a  greater  amount  than  two 
hundred  dollars  on  any  one  package,  except  by  special  agreement. 
This  was  equivalent  to  a  notice  that  they  would  not  be  liable  for  a 
greater  amount  than  two  hundred  dollars  on  a  single  package,  unless 
they  chose  to  assume  a  further  liability.     It  was  optional  with  them, 
under  this  notice,  whether  they  would  make  any  such  agreement  or 
not.     If  they  refused  or  omitted  to  do  so,  the  owner  of  goods  had  no 
power  to  compel  them  to  enter  into  any  agreement.     Nor,   if   the 
notice  of  itself  is  binding  on  him,  had  he  any  means  of  obtaining 
the  safe  transportation  of  his  goods   by  the  defendants  above  the 
value  of  two  hundred  dollars,  under  the  liabilities  imposed  by  law 
upon  common  carriers. 

We  do  not  mean  to  say  that  a  general  notice  brought  home  to  an 


LIMITATION   OF   LIABILITY.  481 

owner  of  goods  may  not  be  available  to  qualify  and  limit  the  respon- 
sibility of  common  carriers  to  a  certain  extent  and  within  certain 
limits.  Doubtless  they  may  by  such  a  notice  require  that  informa- 
tion shall  be  given  to  them  of  the  nature  and  value  of  the  property 
which  they  are  required  to  carry,  in  order  that  they  may  exercise 
a  needful  degree  of  care  in  its  transportation,  and  may  ascertain 
and  demand  a  reasonable  sum  for  its  carriage.  So  they  may  give 
notice  that  property  above  a  certain  amount  in  value  will  not  be 
transported  for  ordinary  rates  of  freight,  but  that  the  price  for  its 
carriage  will  be  regulated  by  the  nature  of  the  articles  and  the 
aggregate  value  of  each  package.  In  like  manner  they  may  by  a 
general  notice  protect  themselves  against  liability  for  loss  or  injury 
of  merchandise,  unless  it  is  properly  packed  or  arranged  for  trans- 
portation, so  that  it  may  with  reasonable  diligence  and  care  be 
safely  and  securely  carried.  These  and  other  similar  notices  would 
be  reasonable  and  perfectly  consistent  with  the  nature  of  the  employ- 
ment of  a  common  carrier,  and  the  rules  of  law  by  which  it  is  regu- 
lated, and  they  would  be  valid  and  binding  on  all  to  whom  they 
were  brought  home,  without  any  express  assent.  All  that  we  mean 
to  decide  is,  that  a  common  carrier  cannot  by  a  general,  notice  exon- 
erate himself  entirely  from  his  legal  liability,  nor  limit  it  absolutely 
to  a  certain  amount  beyond  which  he  will  not  be  held  responsible  in 
case  of  injury  or  loss.  This  was  the  legal  effect  of  the  notice  on 
which  the  defendants  rely  in  the  present  case,  as  is  admitted  by 
their  counsel,  who  puts  his  defence  to  this  action  on  the  ground  that 
they  are  not  liable  at  all,  or  only  for  the  sum  of  two  hundred  dollars 
on  each  package.  Such  a  notice,  being  invalid,  was  not  binding 
on  the  plaintiff,  and  he  is  therefore  entitled  to 

Judgment  on  the  verdict. 


BOON  v.    STEAMBOAT   BELFAST. 
40  Ala.  184.     1866. 

Appellants  filed  a  libel  in  admiralty  against  the  steamboat  "  Bel- 
fast" to  recover  the  value  of  some  cotton  which  they  shipped  on  this 
boat  at  Columbus  to  be  transported  to  Mobile,  and  which  was  never 
delivered.  The  owners  of  the  boat  intervened,  and  in  their  answer 
alleged  that  while  the  boat  was  proceeding  down  the  river,  it  was 
forcibly  boarded  and  seized  by  a  body  of  armed  men,  and  without 
any  fault  on  the  part  of  the  officers  and  crew,  and  that  the  cotton 
was  thereby  lost.     The  remaining  facts  appear  from  the  opinion. 

Judge,  J.  The  respondents,  in  their  answer  to  the  libel,  made  the 
following  averment,  in  substance,  as  one  of  their  grounds  of  defence: 
"That  it  is  the  universal  practice  and  understanding  amongst  all 
persons  navigating  the  waters  of  the  Tombigbee  River,  and  of  all 


482  CARRIERS    OF    GOODS. 

persons  shipping  cotton  to  Mobile  on  said  river,  that  where  cotton  is 
received  on  board  of  a  steamboat  to  be  transported  to  Mobile,  if  the 
boat  is  captured  by  armed  men,  and  the  cotton  thereby  lost  to  the 
owner  or  owners,  without  any  fault  or  neglect  of  the  officers  or  crew 
of  the  boat,  neither  the  boat  nor  the  owners  of  the  boat  are  liable 
for  said  loss;  that  the  said  practice  and  understanding  is  general, 
and  universally  known  to  all  persons  navigating  said  river  to  Mobile ; 
that  is,  that  said  custom  is  general,  universal,  and  uniform,  and 
known  to  all  persons  navigating  said  river,  and  all  persons  shipping 
cotton  upon  said  river;  that  said  custom  existed  at  the  time  of  the 
contract  of  shipment,  and  before  that  time,  and  was  known  to  all 
persons  who  were  engaged  in  shipping  cotton  on  said  river  to  Mobile, 
and  to  all  persons  navigating  said  river." 

This  allegation  was  excepted  to  by  the  libellants  as  setting  up  a 
custom  in  direct  conflict  with  the  law,  and  as  being  no  bar  to  the 
libel.  The  court  overruled  the  exception,  and  on  the  trial  permitted 
parol  evidence  to  be  introduced  by  the  respondents  to  sustain  the 
allegation,  against  the  objection  of  libellants. 

The  bill  of  lading  was  in  the  usual  form.  It  acknowledged  the 
receipt  of  a  certain  number  of  bales  of  cotton  at  Vienna,  to  be 
delivered  at  Mobile,  "dangers  of  the  river  excepted."  As  to  this 
cotton,  the  boat  and  its  owner  became  answerable  for  accidents  and 
thefts,  and  even  for  a  loss  by  robbery.  They  became  answerable  for 
all  losses  which  do  not  fall  within  the  excepted  cases  of  the  act  of 
God  and  public  enemies.  This,  as  Chancellor  Kent  remarks  in  his 
Commentaries,  "has  been  the  settled  law  of  England  for  ages;  and 
the  rule  is  intended  as  a  guard  against  fraud  and  collusion,  and  it  is 
founded  on  the  same  broad  principles  of  public  policy  and  conven- 
ience which  govern  the  case  of  innkeepers."     2  Kent's  Com.  598. 

"The  only  exception  expressed  in  the  contract  in  this  case  is 
'  dangers  of  the  river. '  The  only  exceptions  implied  by  law  are  the 
act  of  God  or  of  the  public  enemies."  Cox,  Brainard  &  Co.  v. 
Peterson,  30  Ala.  608. 

Whilst  in  all  contracts,  "  as  to  the  subject-matter  of  which  known 
usages  prevail,  parties  are  found  to  proceed  with  the  tacit  assump- 
tion of  these  usages,"  and  whilst  "parol  evidence  of  custom  and 
usage  is  always  admissible  to  enable  us  to  arrive  at  the  real  meaning 
of  the  parties,  who  are  naturally  presumed  to  have  contracted  in 
conformity  with  the  known  and  established  usage,"  yet  "  it  is  not 
admitted  to  contradict,  or  substantially  to  vary,  the  legal  import  of 
a  written  agreement.  The  usage  of  no  class  of  men  can  be  sus- 
tained in  opposition  to  the  established  principles  of  law."  Addison 
on  Contracts,  853;  Price  v.  White,  9  Ala.  563;  McClure  &  Co.  i». 
Cox,  Brainard  &  Co.,  32  id.  617. 

The  true  and  appropriate  office  of  a  usage  or  custom  is  correctly 
stated  by  Judge  Story  in  the  case  of  Schooner  Reeside,  2  Sum.  567. 
In  that  case,  it  was  attempted  to  vary  the  common  bill  of  lading, 


LIMITATION    OF   LIABILITY.  483 

by  which  goods  were  to  be  delivered  in  good  order  and  condition, 
"the  danger  of  the  seas  only  excepted,"  by  establishing  a  custom 
that  the  owners  of  packet  vessels  between  New  York  and  Boston 
should  be  liable  only  for  damages  to  goods  occasioned  by  their  own 
neglect.  In  delivering  the  opinion  of  the  court,  Judge  Story  said : 
"The  true  and  appropriate  office  of  a  usage  or  custom  is  to  interpret 
the  otherwise  indeterminate  intentions  of  parties,  and  to  ascertain 
the  nature  and  extent  of  their  contracts,  arising  not  from  express 
stipulations,  but  from  mere  implications  and  presumptions  and  acts 
of  a  doubtful  or  equivocal  character.  It  may  be  also  admitted  to 
ascertain  the  true  meaning  of  a  particular  word,  or  of  particular 
words,  in  a  given  instrument,  when  the  word  or  words  have  various 
senses,  some  common,  some  qualified,  and  some  technical,  according 
to  the  subject-matter  to  which  they  are  applied.  But  I  apprehend 
that  it  can  never  be  proper  to  resort  to  any  usage  or  custom  to  con- 
trol or  vary  the  positive  stipulations  in  a  written  contract,  and  a 
fortiori  not  in  order  to  contradict  them.  An  express  contract  of  the 
parties  is  always  admissible  to  supersede  or  vary  or  control  a  custom 
or  usage;  for  the  latter  may  always  be  waived  at  the  will  of  the 
parties.  But  a  written  and  express  contract  cannot  be  controlled  or 
varied  or  contradicted  by  a  usage  or  custom;  for  that  would  not  only 
be  to  admit  parol  evidence  to  control,  vary,  or  contradict  written 
contracts,  but  it  would  be  to  allow  mere  presumptions  and  implica- 
tions, properly  arising  in  the  absence  of  any  positive  expressions  of 
intention,  to  control,  vary,  or  contradict  the  most  formal  and  deliber- 
ate written  declarations  of  the  parties."  See  also  2  Parsons  on 
Contracts,  note  on  page  59,  and  authorities  there  cited;  Hone  v. 
Mutual  Safety  Ins.  Co.,  1   Sand.  137. 

"It  may  be  difficult  to  draw  the  precise  line  of  distinction  between 
cases  in  which  evidence  of  usage  and  custom  ought  to  be  admitted, 
and  cases  in  which  it  ought  not  to  be  admitted."  Upon  this  ques- 
tion, "much  confusion  and  inaccuracy  have  crept  into  the  adjudged 
cases,  so  that  any  attempt  to  reconcile  them  would  necessarily  prove 
abortive."  McClure  &  Co.  v.  Cox,  Brainard  &  Co.,  32  Ala.  617; 
Barlow  v.  Lambert,  28  id.  704.  But  we  think  it  clearly  settled  by 
the  decided  weight  of  authority  that  a  general  usage,  the  effect  of 
which  is  to  control  rules  of  law,  is  inadmissible;  and  that  the  clear 
and  explicit  language  of  a  contract  cannot  be  enlarged  or  restricted 
by  proof  of  a  custom  or  usage. 

The  decisions  of  this  court  upon  the  question  have  generally  been 
in  accordance  with  this  view.  Andrews  v.  Roach  and  Caffey,  3  Ala. 
590;  Price  v.  White,  9  id.  563;  West,  Oliver  &  Co.  v.  Ball,  12  id. 
340;  Ivey  v.  Phifer,  13  id.  821;  Petty  v.  Gayle,  25  id.  472;  Barlow 
v.  Lambert,  28  id.  704;  Alabama  and  Tennessee  Rivers  R.  R.  Co.  v. 
Kidd,  29  id.  221;  Smith  v.  Mobile  Nav.  Ins.  Co.7  30  id.  167;  Cox, 
Brainerd  &  Co.  v.  Peterson,  30  id.  60S;  McClure  &  Co.  v.  Cox, 
Brainard  &  Co.,  32  id.  617;  Jones  v.  Fort,  36  id.  422. 


484  CARRIERS   OF   GOODS. 

The  decision  in  Steele  v.  McTyer's  Adm'r,  31  Ala.  677,  lays  down 
a  contrary  principle;  and  so  much  of  that  decision  as  holds  that 
parol  evidence  is  admissible  to  show  that  by  a  custom  existing  on  a 
particular  river  flatboatmen  were  not  responsible  for  a  loss  caused 
by  dangers  of  the  river,  although  the  bill  of  lading  contained  no 
such  exception,  being  in  opposition  to  the  principle  announced  in 
this  opinion  on  that  question,  is  overruled. 

In  Sampson  v.  Gazzam,  6  Port.  123,  it  was  held  to  be  permissible 
for  the  owner  of  a  steamboat,  when  sued  for  the  loss  of  goods  by 
fire,  to  show  by  parol  that  the  exceptive  words  "  dangers  of  the 
river,"  in  a  bill  of  lading,  by  custom  and  usage,  includes  dangers  by 
fire.  This  decision  has  been  so  often  recognized  and  followed  by 
this  court  in  cases  involving  the  identical  question  that  the  principle 
established  by  it  must  now  be  regarded  as  the  settled  law  of  the 
State  in  its  application  only  to  cases  of  the  particular  class  to  which 
it  specially  relates ;  we  are  unwilling  to  extend  its  application  beyond 
this  limit.     See  Hibler  v.  McCartney,  31  Ala.  501. 

The  rule  which  makes  the  common  carrier  in  the  nature  of  an 
insurer,  and  answerable  for  every  loss,  not  attributable  to  the  act  of 
God  or  the  public  enemies,  according  to  Lord  Holt,  "was  a  politic 
establishment,  contrived  by  the  policy  of  the  law  for  the  safety  of 
all  persons  the  necessity  of  whose  affairs  obliged  them  to  trust  those 
sorts  of  persons ; "  "  it  was  introduced  to  prevent  the  necessity  of 
going  into  circumstances  impossible  to  be  unravelled."  "If  it  were 
not  for  such  a  rule,  the  common  carrier  might  contrive  by  means  not 
to  be  detected  to  be  robbed  of  his  goods  in  order  to  share  the  spoil." 
2  Kent's  Com.  603. 

The  same  public  policy  which  established  this  rule,  and  which 
has  continued  it  in  existence  for  ages,  forbids  its  destruction  at  this 
day  in  any  locality,  by  any  pretended  custom,  especially  when  the 
business  of  common  carriers  has  so  much  increased,  and  the  necessity 
for  the  rule,  instead  of  being  diminished,  is  also  increased.  The 
custom,  then,  sought  to  be  established  in  this  case  is  contrary  to 
law,  in  contravention  of  a  sound  public  policy,  and  cannot  receive 
our  sanction. 

It  follows  that  the  court  below  erred  in  overruling  the  designated 
exceptions  to  the  answer  of  respondents,  and  in  admitting  parol  evi- 
dence to  establish  the  custom  relied  on;  and  its  decree  must  be 
reversed  and  the  cause  remanded. 


LIMITATION   OF   LIABILITY.  485 

BLOSSOM  v.    DODD. 
43  N.  Y.  264.     1870. 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court, 
in  the  second  judicial  district,  setting  aside  a  judgment  entered  upon 
the  report  of  a  referee  and  granting  a  new  trial. 

This  action  was  brought  to  recover  for  baggage  of  the  plaintiff  lost 
by  the  defendant. 

The  defendant  was  the  president  of  Dodd's  Express,  a  joint  stock 
company,  doing  business  in  the  city  of  New  York  and  its  vicinity. 

On  the  17th  of  October,  1866,  the  plaintiff  was  a  passenger  on  a 
train  of  cars,  which  was  proceeding  to  New  York  on  the  New  Jersey 
Central  Railroad.  When  the  train  was  nearly  at  the  end  of  its  route, 
and-  between  the  hours  of  ten  and  eleven  o'clock  in  the  evening,  a 
messenger  of  Dodd's  Express  entered  the  car  and  inquired  of  him  if 
he  had  any  baggage  to  be  delivered. 

The  plaintiff  thereupon  handed  to  the  messenger  two  railroad 
baggage-checks,  one  of  which  was  for  a  gun-case  containing  a  gun, 
and  the  other  was  a  valise  containing  wearing  apparel  and  other 
articles.  The  messenger  entered  the  numbers  of  the  checks  in 
pencil  upon  a  card  or  receipt  of  which  the  following  is  a  copy,  omit- 
ting the  advertisement  in  large  type  at  the  top  of  the  paper. 


Dodd's  Express. 


1ST.  J.  R.  R.  Depot,  Pier  13  N.  R., 
No.  944  Broadway,  N.  Y. 


3D     j>  tfi 

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W  PL, 

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w  w  Q 

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It  is  mutually  agreed,  and  is  part  of  the  consideration  of  the  contract, 
that  Dodd's  Express  shall  not  be  liable  for  merchandise  or  jewelry  contained 
in  baggage,  nor  for  loss  by  fire,  nor  for  an  amount  exceeding  One  Hundred 
Dollars  upon  any  article  unless  specially  agreed  for  in  writing  on  the  re- 
ceipt and  the  extra  risk  paid  therefor,  nor  for  baggage  to  railroad,  steamboat, 
or  steamship  lines  after  the  same  has  been  left  at  the  usual  place  of  delivery 
to  such  lines,  and  the  owner  hereby  agrees  that  Dodd's  Express  shall  be  liable 
only  as  above  ;  and  it  is  farther  agreed  that  said  express  shall  not  bo  liable 
for  loss  or  damage  unless  the  claim  therefor  be  made  in  writing  at  their  prin- 
cipal office,  with  this  receipt  annexed,  within  thirty  days  thereafter. 


486  CAERIEES    OF   GOODS. 

At  the  time  the  cars  were  running  rapidly,- the  lights  were  mostly 
out,  and  the  car  in  which  the  plaintiff:  was,  was  nearly  dark,  but  there 
was  one  light  at  the  end. 

This  light  was  insufficient  to  enable  the  plaintiff  to  read  the  printed 
matter  at  the  place  where  he  sat,  and  he  did  not  read  it. 

The  said  Dodd's  Express  received  the  valise  and  gun-case  from  the 
railroad  company,  and  on  the  following  day  delivered  the  gun-case, 
but  neglected  to  deliver  the  valise  or  any  of  its  contents  to  the 
plaintiff.  Evidence  tending  to  show  it  was  stolen,  or  fell  from  one 
of  the  plaintiff's  wagons,  was  given. 

The  valise  and  its  contents  were  worth  about  $260.  The  referee 
found  that  the  valise  was  stolen  from  the  defendant's  wagon. 

The  answer  put  in  issue  the  negligence  and  the  value  of  the  prop- 
erty lost,  and  set  up  a  special  contract  restricting  the  liability  of 
the  defendant. 

The  case  was  tried  before  a  referee,  who  found,  as  conclusions  of 
law :  — 

1.  The  said  baggage  was  received  by  the  said  Dodd's  Express,  to 
be  transported  to  plaintiff's  residence,  under  and  subject  to  the  con- 
ditions expressed  in  said  receipt,  and  not  otherwise. 

2.  That,  by  delivery  to  the  plaintiff,  and  his  acceptance  of  the  said 
card  or  receipt,  under  the  circumstances,  he  consented  and  agreed 
that  said  Dodd's  Express  should  not  be  liable  for  the  loss  of  the  said 
valise  to  an  amount  exceeding  one  hundred  dollars. 

3.  That  the  plaintiff  is  entitled  to  recover  from  defendant  only 
the  sum  of  one  hundred  dollars  and  interest  from  October  17,  1866. 

To  all  of  which  conclusions  of  law  the  plaintiff  excepted. 

From  the  judgment  entered  upon  this  report,  an  appeal  was  taken 
to  the  General  Term,  where  the  judgment  was  set  aside  and  a  new 
trial  ordered;  and  from  such  order  an  appeal  was  taken  to  this 
court. 

Church,  Ch.  J.  The  common-law  liability  of  common  carriers 
cannot  be  limited  by  a  notice,  even  though  such  notice  be  brought  to 
the  knowledge  of  the  persons  whose  property  they  carry.  Dorr  v. 
N.  J.  Steam  Navigation  Co.,  1  Kern.  485.  But  such  liabilities 
may  be  limited  by  express  contract.  Id. ;  Bissell  v.  N.  Y.  Central 
B.  K.  Co.,  442;  French  v.  Buffalo,  N.  Y.  &  Erie  B.  B.  Co.,  4 
Keyes,   108. 

The  principal  question  in  this  case  is,  whether  there  was  a  con- 
tract made  between  the  parties  limiting  the  liability  of  the  defend- 
ants to  a  loss  of  $100  for  the  valise  and  its  contents,  which  the 
plaintiff  intrusted  to  their  care.  A  facsimile  of  the  card  upon  which 
the  alleged  contract  was  printed  has  been  furnished  in  the  papers. 
It  does  not  appear,  on  examination,  like  a  contract,  and  would  not, 
from  its  general  appearance,  be  taken  for  anything  more  than- a 
token  or  check  denoting  the  numbers  of  the  checks  received,  to  be 
used  for  identification  upon  the  delivery  of  the  baggage.     The  larger 


LIMITATION    OF   LIABILITY.  457 

portion  of  the  printed  matter  is  an  advertisement,  in  large  type. 
The  alleged  contract  is  printed  in  very  small  type,  and  is  illegible 
in  the  night  by  the  ordinary  lights  in  a  railroad  car,  and  is  not  at 
all  attractive,  while  other  parts  of  the  paper  are  quite  so. 

Considerable  stress  is  laid  upon  the  fact  that  the  words,  "Read 
this  receipt,"  were  printed  on  the  card  in  legible  type. 

The  receipt  reads :  "  Received  of  M articles  or  checks  numbered 

as  below:  368—319."  "For  Dodd's  Express."  The  blank  is  not 
filled,  nor  is  the  receipt  signed  by  any  one.  The  invitation  is  not 
to  read  the  contract,  but  the  receipt.  In  order  to  read  it,  the  paper 
must  be  turned  sideways;  and  no  one,  thus  reading  the  receipt, 
would  suspect  that  it  had  any  connection  with  the  alleged  contract, 
which  is  printed  in  different  and  very  small  type  across  the  bottom 
of  the  paper.  It  is  no  part  of-  the  receipt,  is  not  connected  with  it, 
and  is  not  referred  to  in  any  other  part  of  the  paper.  The  defend- 
ants are  dealing  with  all  classes  of  the  communit}r;  and  public  policy. 
as  well  as  established  principles,  demand  that  the  utmost  fairness 
should  be  observed. 

This  paper  is  subject  to  the  criticism  made  by  Lord  Ellenborough, 
in  Butler  v.  Heane,  Camp.  415,  in  which  he  said,  that  "  it  called 
attention  to  everything  that  was  attractive,  and  concealed  what  was 
calculated  to  repel  customers;  "  and  added:  "If  a  common  carrier  is 
to  be  allowed  to  limit  his  liability,  he  must  take  care  that  any  one 
who  deals  with  him  is  fully  informed  of  the  limits  to  which  he  con- 
fines it."  Nor  did  the  nature  of  the  business  necessarily  convey 
the  idea  of  a  contract  to  the  traveller  in  such  a  manner  as  to  raise 
the  presumption  that  he  knew  it  was  a  contract,  expressive  of  the 
terms  upon  which  the  property  was  carried,  or  limiting  the  liability 
of  the  carrier.  Baggage  is  usually  identified  by  means  of  checks  or 
tokens.  And  such  a  card  does  not  necessarily  import  anything  else. 
At  all  events,  to  have  the  effect,  claimed,  the  limitation  should  be  as 
conspicuous  and  legible  as  other  portions  of  the  paper.  In  Brown 
v.  E.  R.  R.  Co.,  11  Cush.,  97,  where  the  limitation  was  printed 
upon  the  back  of  a  passenger  ticket,  the  court  say :  "  The  party 
receiving  it  might  well  suppose  that  it  was  a  mere  check,  signifying 
that  the  party  had  paid  his  passage  to  the  place  indicated  on  the 
ticket."  In  the  cases  of  Prentice  u.  Decker,  49  Barb.  21,  ami 
Limburger  v.  Wescott,  id.  283,  limitations  were  claimed  upon  the 
delivery  of  similar  cards  of  another  express  company,  and  the  court 
held,  in  both  cases,  that  such  delivery  did  not  charge  the  persons 
receiving  them  with  knowledge  that  they  contained  contracts. 

A  different  construction  was  put  upon  the  delivery  of  a  similar 
card,  in  Hopkins  v.  Wescott,  6  Blatchf.  R.  64;  but  I  infer  that 
the  learned  judge  who  delivered  the  opinion  intended  to  decide  that 
something  short  of  an  express  contract  will  suffice  to  screen  the 
carrier  from  his  common-law  liability,  and  that  a  notice,  personally 
served,  which  could  be  read,  would  have  that  effect.     The  attention 


488  CARRIERS    OF    GOODS. 

of  the  court  does  not  seem  to  have  been  directed  to  the  distinction 
between  such  a  notice  and  a  contract.  The  delivery  and  acceptance 
of  a  paper  containing  the  contract  may  be  binding,  though  not  read, 
provided  the  business  is  of  such  a  nature  and  the  delivery  is  under 
such  circumstances  as  to  raise  the  presumption  that  the  person 
receiving  it  knows  that  it  is  a  contract,  containing  the  terms  and 
conditions  upon  which  the  property  is  received  to  be  carried.  In 
such  a  case  it  is  presumed  that  the  person  assents  to  the  terms, 
whatever  they  may  be.  This  is  the  utmost  extent  to  which  the  rule 
can  be  carried,  without  abandoning  the  principle  that  a  contract  is 
indispensable.  The  recent  case  of  Grace  v.  Adams,  100  Mass.  560 
[548],  relied  upon  by  the  defendant's  counsel,  was  decided  upon 
this  principle.  The  plaintiff  delivered  a  package  of  money  to  an 
express  company,  and  took  a  receipt  containing  a  provision  exempt- 
ing the  company  from  liability  for  loss  by  fire ;  and  the  court  held 
that  he  knew  that  the  paper  contained  the  conditions  upon  which 
the  money  was  to  be  carried,  and  was  therefore  presumed  to  have 
assented  to  them,  although  he  did  not  read  the  paper.  The  court 
say:  "It  is  not  claimed  that  he  did  not  know,  when  he  took  it,  that 
it  was  a  shipping  contract,  or  bill  of  lading."  So,  in  Van  Goll  v. 
The  S.  E.  E.  Co.,  104  Eng.  Com.  Law  E.  75,  the  same  principle 
was  decided.  Willes,  J.,  said:  "Assuming  that  the  plaintiff  did. 
not  read  the  terms  of  the  condition,  it  is  evident  she  knew  they  were 
there."  Keating,  J.,  said:  "It  was  incumbent  on  the  company  to 
show  that  such  was  the  contract."  ...  "I  think  there  was  evidence 
that  the  plaintiff  assented  to  those  terms." 

As  to  bills  of  lading  and  other  commercial  instruments  of  like 
character,  it  has  been  held  that  persons  receiving  them  are  pre- 
sumed to  know,  from  their  uniform  character  and  the  nature  of  the 
business,  that  they  contain  the  terms  upon  which  the  property  is  to 
be  carried.  But  checks  for  baggage  are  not  of  that  character,  nor  is 
such  a  card  as  was  delivered  in  this  instance.  It  was,  at  least, 
equivocal  in  its  character.  In  such  a  case  a  person  is  not  presumed 
to  know  its  contents,  or  to  assent  to  them. 

The  circumstances  under  which  the  paper  was  received  repel  the 
idea  of  a  contract.  No  such  intimation  was  made  to  the  plaintiff. 
He  did  not,  and  could  not,  if  he  had  tried,  read  it  in  his  seat.  It 
is  found  that  he  might  have  read  it  at  the  end  of  the  car,  or  by  the 
lights  on  the  pier  or  in  the  ferry-boat;  and  it  is  claimed  that  he 
should  have  done  so,  and,  if  dissatisfied,  should  have  expressed  his 
dissent.  If  he  had  done  so,  and  in  the  bustle  and  confusion  inci- 
dent to  such  occasions,  could  have  found  the  messenger  and  demanded 
his  baggage,  the  latter  might  have  claimed,  upon  the  theory  of  this 
defence,  that  the  contract  was  completed  at  the  delivery  of  the 
paper,  and  that  he  had  a  right  to  perform  it  and  receive  the 
compensation. 

It  is  impossible  to  maintain  this  defence  without  violating  estab- 


LIMITATION    OF    LIABILITY.  4gQ 

lislied  legal  principles  in  relation  to  contracts.  It  was  suggested  on 
the  argument,  that  the  stipulation  to  charge  according  to  the  value 
of  the  property  is  just  and  proper.  This  may  be  true;  but  the 
traveller  should  have  something  to  say  about  it.  The  contract 
cannot  be  made  by  one  party.  If  the  traveller  is  informed  of  the 
charges  graduated  by  value,  he  can  have  a  voice  in  the  bargain;  but 
in  this  case  he  had  none.  Whilst  the  carrier  should  be  protected 
in  his  legal  right  to  limit  his  responsibility,  the  public  should  also 
be  protected  against  imposition  and  fraud.  The  carrier  must  deal 
with  the  public  upon  terms  of  equality;  and,  if  he  desires  to  limit 
his  liability,  he  must  secure  the  assent  of  those  with  whom  he 
transacts  business. 

My  conclusion  is,  that  no  contract  was  proved. 

1.  Because  it  was  obscurely  printed. 

2.  Because  the  nature  of  the  transaction  was  not  such  as  neces- 
sarily charged  the  plaintiff  with  knowledge  that  the  paper  contained 
the  contract. 

3.  Because  the  circumstances  attending  the  delivery  of  the  card 
repel  the  idea  that  the  plaintiff  had  such  knowledge,  or  assented  in 
fact  to  the  terms  of  the  alleged  contract. 

The  order  granting  a  new  trial  must  be  affirmed,  and  judgment 
absolute  ordered  for  the  plaintiff,   with  costs. 

All  the  judges  concurring,  upon  the  ground  that  no  contract  limit- 
ing the  liability  of  defendants  was  proved. 

Order  affirmed  and  judgment  absolute  for  the  plaintiff  ordered. 


b.  In  case  of  negligence. 

LIVERPOOL   STEAM   CO.    v.    PHENIX   INS.    CO. 
129  U.  S.  397.     1S89. 

Mr.  Justice  Gray.  This  is  an  appeal  by  a  steamship  company 
from  a  decree  rendered  against  it  upon  a  libel  in  admiralty,  "  in  a 
cause  of  action  arising  from  breach  of  contract,"  brought  by  an  insur- 
ance company,  claiming  to  be  subrogated  to  the  rights  of  the  owners 
of  goods  shipped  on  board  the  "Montana,"  one  of  the  appellant's 
steamships,  at  Xew  York,  to  be  carried  to  Liverpool,  and  lost  or 
damaged  by  her  stranding,  because  of  the  negligence  of  her  master 
and  officers,  in  Holyhead  Bay,  on  the  coast  of  Wales,  before  reaching 
her  destination. 

In  behalf  of  the  appellant,  it  was  contended  that  the  loss  was 
caused  by  perils  of  the  sea,  without  any  negligence  on  the  part  of 
master  and  officers;  that  the  appellant  was  not  a  common  carrier; 
that  it  was  exempt  from  liability  by  the  terms  of  the  bills  of  lading; 


490  CARRIERS    OF    GOODS. 

and  that  the  libellant  had  not  been  subrogated  to  the  rights  of  the 
owners  of  the  goods. 

It  is  to  be  remembered  that  the  jurisdiction  of  this  court  to  review 
the  decree  below  is  limited  to  questions  of  law,  and  does  not  extend 
to  questions  of  fact.  Act  of  February  16, 1875,  c.  77,  sec.  1 ;  18  Stat. 
315;  The  Gazelle,  128  U.  S.  474,  484,  and  cases  there  cited. 

"On  the  foregoing  facts,"  the  only  conclusion  of  law  stated  by  the 
Circuit  Court  (except  those  affecting  the  right  of  subrogation  and 
the  amount  to  be  recovered)  is  in  these  words :  "  The  stranding  of 
the  '  Montana  '  and  the  consequent  damage  to  her  cargo  having  been 
the  direct  result  of  the  negligence  of  the  master  and  officers  of  the 
steamer,  the  respondent  is  liable  therefor."  Negligence  is  not  here 
stated  as  a  conclusion  of  law,  but  assumed  as  a  fact  already  found. 
The  conclusion  of  law  is,  in  effect,  that,  such  being  the  fact,  the  re- 
spondent is  liable,  notwithstanding  any  clause  in  the  bills  of  lading. 

We  are  then  brought  to  the  consideration  of  the  principal  ques- 
tion in  the  case ;  namely,  the  validity  and  effect  of  that  clause  in 
each  bill  of  lading  by  which  the  appellant  undertook  to  exempt 
itself  from  all  responsibility  for  loss  or  damage  by  perils  of  the  sea, 
arising  from  negligence  of  the  master  and  crew  of  the  ship. 

The  question  appears  to  us  to  be  substantially  determined  by  the 
judgment  of  this  court  in  Railroad  Co.  v.  Lockwood,  17  Wall.  357. 

That  case,  indeed,  differed  in  its  facts  from  the  case  at  bar.  It 
was  an  action  brought  against  a  railroad  corporation  by  a  drover, 
who,  while  being  carried  with  his  cattle  on  one  of  its  trains  under 
an  agreement  which  it  had  required  him  to  sign,  and  by  which  he 
was  to  pay  certain  rates  for  the  carriage  of  the  cattle,  to  pass  free 
himself,  and  to  take  the  risks  of  all  injuries  to  himself  or  to  them, 
was  injured  by  the  negligence  of  the  defendant  or  its  servants. 

The  judgment  for  the  plaintiff,  however,  was  not  rested  upon  the 
form  of  the  agreement,  or  upon  any  difference  between  railroad 
corporations  and  other  carriers,  or  between  carriers  by  land  and 
carriers  by  sea,  or  between  carriers  of  passengers  and  carriers  of 
goods,  but  upon  the  broad  ground  that  no  public  carrier  is  permitted 
by  law  to  stipulate  for  an  exemption  from  the  consequence  of  the 
negligence  of  himself  or  his  servants. 

The  very  question  there  at  issue,  defined  at  the  beginning  of  the 
opinion  as  "whether  a  railroad  company,  carrying  passengers  for 
hire,  can  lawfully  stipulate  not  to  be  answerable  for  their  own  or 
their  servants'  negligence  in  reference  to  such  carriage,"  was  stated 
a  little  further  on  in  more  general  terms  as  "the  question  before 
propounded;  namely,  whether  common  carriers  may  excuse  them- 
selves from  liability  for  negligence;  "  and  a  negative  answer  to  the 
question  thus  stated  was  a  necessary  link  in  the  logical  chain  of 
conclusions  announced  at  the  end  of  the  opinion  as  constituting  the 
ratio  decidendi     17  Wall.  359.  363,  384. 


LIMITATION    OF    LIABILITY.  491 

The  course  of  reasoning,  supported  by  elaborate  argument  and 
illustration,  and  by  copious  references  to  authorities,  by  which 
those  conclusions  were  reached,   may  be  summed  up  as  follows: 

By  the  common  law  of  England  and  America  before  the  Declara- 
tion of  Independence,  recognized  by  the  weight  of  English  authority 
for  half  a  century  afterwards,  and  upheld  by  decisions  of  the 
highest  courts  of  many  States  of  the  Union,  common  carriers  could 
not  stipulate  for  immunity  for  their  own  or  their  servants'  negli- 
gence. The  English  Railway  and  Canal  Traffic  Act  of  1854,  declar- 
ing void  all  notices  and  conditions  made  by  those  classes  of  common 
carriers,  except  such  as  should  be  held  by  the  courts  or  judge  before 
whom  the  case  should  be  tried  to  be  just  and  reasonable,  was  sub- 
stantially a  return  to  the  rule  of  the  common  law. 

The  only  important  modification  by  the  Congress  of  the  Unit.-! 
States  of  the  previously  existing  law  on  this  subject  is  the  Ad  of 
1851,  to  limit  the  liability  of  ship-owners  (Act  of  March  3,  1851, 
c.  43 ;  9  Stat.  635 ;  Rev.  Stat.  sec.  4282-4289,  and  that  act  leaves  fchem 
liable  without  limit  for  their  own  negligence,  and  liable  to  the  extent 
of  the  ship  and  freight  for  the  negligence  or  misconduct  of  their 
master  and  crew. 

The  employment  of  a  common  carrier  is  a  public  one,  charging 
him  with  the  duty  of  accommodating  the  public  in  the  line  of  his 
employment.  A  common  carrier  is  such  by  virtue  of  his  occupation, 
not  by  virtue  of  the  responsibilities  under  which  he  rests.  Even  if 
the  extent  of  these  responsibilities  is  restricted  by  law  or  by  con- 
tract, the  nature  of  his  occupation  makes  him  a  common  carrier 
still.  A  common  carrier  may  become  a  private  carrier,  or  a  bailee 
for  hire,  when,  as  a  matter  of  accommodation  or  special  engagement, 
he  undertakes  to  carry  something  which  it  is  not  his  business  to 
carry.  But  when  a  carrier  has  a  regularly  established  business  for 
carrying  all  or  certain  articles,  and  especially  if  that  carrier  is  a 
corporation  created  for  the  purpose  of  the  carrying  trade,  and  the 
carriage  of  the  articles  is  embraced  within  the  scope  of  its  chartered 
powers,  it  is  a  common  carrier,  and  a  special  contract  about  its 
responsibility  does  not  divest  it  of  that  character. 

The  fundamental  principle,  upon  which  the  law  of  common 
carriers  was  established,  was  to  secure  the  utmost  care  and  dili- 
gence in  the  performance  of  their  duties.  That  end  was  effected  in 
regard  to  goods,  by  charging  the  common  carrier  as  an  insurer,  and 
in  regard  to  passengers  b}r  exacting  the  highest  degree  of  carefulness 
and  diligence.  A  carrier  who  stipulates  not  to  be  bound  to  the 
exercise  of  care  and  diligence  seeks  to  put  off  the  essential  duties 
of  his  employment. 

Nor  can  those  duties  be  waived  in  respect  to  his  agents  or  servants, 
especially  where  the  carrier  is  an  artificial  being,  incapable  of  acting 
except   by  agents  and  servants.     The  law  demands  of  the  carri<  t 


492  CARRIERS    OF   GOODS. 

carefulness  and  diligence  in  performing  the  service;  not  merely  an 
abstract  carefulness  and  diligence  in  proprietors  and  stockholders 
who  take  no  active  part  in  the  business.  To  admit  such  a  distinc- 
tion in  the  law  of  common  carriers,  as  the  business  is  now  carried 
on,  would  be  subversive  of  the  very  object  of  the  law. 

The  carrier  and  his  customer  do  not  stand  upon  a  footing  of 
equality.  The  individual  customer  has  no  real  freedom  of  choice. 
He  cannot  afford  to  higgle  or  stand  out,  and  seek  redress  in  the 
courts.  He  prefers  rather  to  accept  any  bill  of  lading,  or  to  sign 
any  paper,  that  the  carrier  presents;  and  in  most  cases  he  has  no 
alternative  but  to  do  this,  or  to  abandon  his  business. 

Special  contracts  between  the  carrier  or  the  customer,  the  terms 
of  which  are  just  and  reasonable  and  not  contrary  to  public  policy, 
are  upheld;  such  as  those  exempting  the  carrier  from  responsibility 
for  losses  happening  from  accident,  or  from  dangers  of  navigation 
that  no  human  skill  or  diligence  can  guard  against;  or  for  money 
or  other  valuable  articles,  liable  to  be  stolen  or  damaged  —  unless 
informed  of  their  character  or  value;  or  for  perishable  articles  or 
live  animals,  when  injured  without  default  or  negligence  of  the 
carrier.  But  the  law  does  not  allow  a  public  carrier  to  abandon 
altogether  his  obligations  to  the  public,  and  to  stipulate  for  exemp- 
tions which  are  unreasonable  and  improper,  amounting  to  an  abne- 
gation of  the  essential  duties  of  his  employment. 

It  being  against  the  policy  of  the  law  to  allow  stipulations  which 
will  relieve  the  railroad  company  from  the  exercise  of  care  and  dili- 
gence, or  which,  in  other  words,  will  excuse  it  for  negligence  in  the 
performance  of  its  duty,  the  company  remains  liable  for  such 
negligence. 

This  analysis  of  the  opinion  in  Railroad  Co.  v.  Lockwood  shows 
that  it  affirms  and  rests  upon  the  doctrine  that  an  express  stipulation 
by  any  common  carrier  for  hire,  in  a  contract  of  carriage,  that  he 
shall  be  exempt  from  liability  for  losses  caused  by  the  negligence 
of  himself  or  his  servants,  is  unreasonable  and  contrary  to  the  public 
policy,  and  consequently  void.  And  such  has  always  been  the 
understanding  of  this  court,  expressed  in  several  later  cases. 
Express  Co.  v.  Caldwell,  21  Wall.  264,  268  [536]) ;  Railroad  Co.  v. 
Pratt,  22  Wall.  123,  134 ;  Bank  of  Kentucky  v.  Adams  Express  Co., 
93  U.  S.  174,  183  ;  Railway  Co.  v.  Stevens,  95  U.  S.  G55  [1010]  ;  Hart 
v.  Pennsylvania  Railroad,  112  U.  S.  331,  338;  Phoenix  Ins.  Co.  v. 
Erie  Transportation  Co.,  117  U.  S.  312,  322;  Inman  v.  South  Carolina 
Railway,  ante  [129  U.  S.],  128. 

It  was  argued  for  the  appellant,  that  the  law  of  New  York ,  the 
lex  loci  contractus,  was  settled  by  recent  decisions  of  the  Court  of 
Appeals  of  that  State  in  favor  of  the  right  of  a  carrier  of  goods  or 
passengers,  by  land  or  water,  to  stipulate  for  exemption  from  all 


LIMITATION    OF    LIABILITY.  493 

liability  for  his  own  negligence.     Mynard  v.  Syracuse  Railroad.  77 
N.  Y.  180.1     Spinette  v.  Atlas  Steamship  Co.,  SO  X.  Y.  71. 

i  MYNARD  v.  SYRACUSE,  etc.  R.  CO. 

71  N.   Y.  180.     1877. 

This  action  was  brought  to  recover  damages  for  the  loss  of  a  steer,  while  being 
transported  on  defendant's  road  from  Syracuse  to  Binghamton. 

Church,  Ch.  J.  The  parties  stipulated  that  the  animal  was  lost-  by  reason  of  the 
negligence  of  some  of  the  employees  of  the  defendant  without  the  fault  of  the  plaintiff. 
The  defence  rested  solely  upon  exemption  from  liability  contained  in  the  contract 
of  shipment,  by  which,  for  the  consideration  of  a  reduced  rate,  the  plaintiff  agreed  to 
"release  and  discharge  the  said  company  from  all  claims,  demands,  and  liabilities  of 
every  kind  whatsoever  for,  or  on  account  of,  or  connected  with  any  damage  or  injury 
to  or  the  loss  of  said  stock,  or  any  portion  thereof,  from  whatsoever  cause  arising." 

The  question  depends  upon  the  construction  to  be  given  to  this  contract,  whether 
the  exemption  "from  whatever  cause  arising"  should  be  taken  to  include  a  loss 
accruing  by  the  negligence  of  the  defendant  or  its  servants.  The  language  is  general 
and  broad.  Taken  literally  it  would  include  the  loss  in  question,  and  it  would  also 
include  a  loss  accruing  from  an  intentional  or  wilful  act  on  the  part  of  servants. 
It  is  conceded  that  the  latter  is  not  included.  We  must  look  at  the  language  in 
connection  with  the  circumstances  and  determine  what  was  intended  and  whether  the 
exemption  claimed  was  within  the  contemplation  of  the  parties. 

The  defendant  was  a  common  carrier,  and  as  such  was  absolutely  liable  for  the  safe 
carriage  and  delivery  of  property  intrusted  to  its  care,  except  for  loss  or  injury 
occasioned  by  the  acts  of  God  or  public  enemies.  The  obligations  are  imposed  by  law, 
and  not  by  contract.  A  common  carrier  is  subject  to  two  distinct  classes  of  liabilities, 
—  one  where  he  is  liable  as  an  insurer  without  fault  on  his  part  ;  the  other,  as  an 
ordinary  bailee  for  hire,  when  he  is  liable  for  default  in  not  exercising  proper  care  and 
diligence  ;  or,  in  other  words,  for  negligence.  General  words  from  whatever  cause 
arising  may  well  be  satisfied  by  limiting  them  to  such  ordinary  liabilities  as  carriers 
are  under  without  fault  or  uegligence  on  their  part. 

When  general  words  may  operate  without  including  the  negligence  of  the  carrier  or 
his  servants,  it  will  not  be  presumed  that  it  was  intended  to  include  it.  Every 
presumption  is  against  an  intention  to  contract  for  immunity  for  not  exercising 
ordinary  diligence  in  the  transaction  of  any  business,  and  hence  the  general  rule  is 
that  contracts  will  not  be  so  construed,  unless  expressed  in  unequivocal  terms.  In 
New  Jersey  Steam  Navigation  Company  o.  Merchants'  Bank,  6  How.  [U.  S.  R.],  344, 
a  contract  that  the  carriers  are  not  responsible  in  any  event  for  loss  or  damages  was 
held  not  intended  to  exonerate  them  from  liability  for  want  of  ordinary  care.  Nelson, 
J.,  said  :  "  The  language  is  general  and  broad,  and  might  very  well  comprehend  every 
description  of  risk  incident  to  the  shipment.  But  we  think  it  would  be  going  further 
than  the  intent  of  the  parties  upon  any  fair  and  reasonable  construction  of  the  agree- 
ment, were  we  to  regard  it  as  stipulating  for  wilful  misconduct,  gross  negligence,  or 
want  of  ordinary  care,  either  in  the  seaworthiness  of  the  vessel,  her  proper  equipments 
and  furniture,  or  in  her  management  by  the  master  and  hands."  . 

These  authorities  are  directly  in  point,  and  they  accord  with  the  wise  public  policj 
by  which  courts  should  be  guided  in  the  construction  of  contracts  designed  to  relieve 
common  carriers  from  obligation  to  exercise  care  and  diligence  in  the  prosecution  of 
their  business,  which  the  law  imposes  upon  ordinary  bailees  for  hire  engaged  in  prii 
business.  In  the  recent  case  of  Loekwood  v.  Railroad  Co.,  17  Wall.  357,  the  Supreme 
Court  of  the  United  States  decided  that  a  common  carrier  cannot  lawfully  stipnl 
for  exemption  from  responsibility  for  the  negligence  of  himself  or  his  servants.  Ii  we 
felt  at  liberty  to  review  the   question,  the  reasoning  of  Justice   Bradley  in  that 


494  CARRIERS    OF   GOODS. 

But  on  this  subject,  as  on  any  question  depending  upon  mercantile 
law  and  not  upon  local  statute  or  usage,  it  is  well  settled  that  the 
courts  of  the  United  States  are  not  bound  by  decisions  of  the  courts 
of  the  State,  but  will  exercise  their  own  judgment,  even  when  their 
jurisdiction  attaches  only  by  reason  of  the  citizenship  of  the  parties, 
in  an  action  at  law  of  which  the  courts  of  the  State  have  concurrent 
jurisdiction,  and  upon  a  contract  made  and  to  be  performed  within 
the  State.  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  368;  Myrick  v. 
Michigan  Central  Railroad,  107  IT.  S.  102;  Carpenter  v.  Washington 
Ins.  Co..  16  Pet.  495,  511;  Swift  v.  Tyson,  16  Pet.  1;  Railroad  Co. 
c.  National  Bank,  102  U.  S.  14;  Burgess  v.  Seligman,  107  U.  S. 
20,  33;  Smith  v.  Alabama,  124  U.  S.  365,  478;  Bucher  v.  Cheshire 
Railroad,  125  U.  S.  555,  583.  The  decision  of  the  State  courts 
certainly  cannot  be  allowed  any  greater  weight  in  the  Federal  courts 
when  exercising  the  admiralty  and  maritime  jurisdiction  exclusively 
vested  in  them  by  the  Constitution  of  the  United  States. 

It  was  also  argued  in  behalf  of  the  appellant  that  the  validity 
and  effect  of  this  contract,  to  be  performed  principally  upon  the 
high  seas,  should  be  governed  by  the  general  maritime  law,  and 
that  by  that  .law  such  stipulations  are  valid.  To  this  argument 
there  are  two  answers. 

First.  There  is  not  shown  to  be  any  such  general  maritime  law. 
The  industry  of  the  learned  counsel  for  the  appellant  has  collected, 
articles  of  codes,  decisions  of  courts,  and  opinions  of  commentators 
in  France,  Italy,  German}7,  and  Holland,  tending  to  show  that,  by 
the  law  administered  in  those  countries,  such  a  stipulation  would 
be  valid.  But  those  decisions  and  opinions  do  not  appear  to  have 
been  based  on  general  maritime  law,  but  largely,  if  not  wholly, 
upon  provisions  or  omissions  in  the  codes  of  the  particular  country; 
and  it  has  been  said  by  many  jurists  that  the  law  of  France,  at 
least,  was  otherwise.  See  2  Pardessus  Droit  Commercial,  no.  542; 
4  Goujet  &  Meyer  Diet.  Droit  Commercial  (2d  ed.)  2  Voiturier, 
nos.  1,  81;  2  Tropling  Droit  Civil,  nos.  894,  910,  942,  and  other 
books  cited  in  Peninsular  &  Oriental  Co.  v.  Stand,  3  Moore  P.  C. 
(x.  s.)  272,  278,  285,  286;  25  Laurent  Droit  Civil  Francais,  no. 
532;  Mellish,  L.  J.,  in  Cohen  v.  Southeastern  Railway,  2  Ex.  D. 
253,  257. 

Second.  The  general  maritime  law  is  in  force  in  this  country,  or 
in  any  other,  so  far  only  as  it  has  been  adopted  by  the  laws  or  usage 
thereof;  and  no  rule  of  the  general  maritime  law  (if  any  exists) 
concerning  the  validity  of  such  a  stipulation  as  that  now  before  us 
has  ever  been  adopted  in  the  United  States  or  England,  or  recog- 

wotild  be  entitled  to  serious  consideration  ;  but  the  right  thus  to  stipulate  has  been  so 
repeatedly  affirmed  by  this  court  that  the  question  cannot  with  propriety  be  regarded 
as  an  open  one  in  this  State.  8  N.  Y.  375  ;  11  id.  485  ;  24  id.  181-196;  26  id. 
442  ;  42  id.  212  ;  49  id.  263  ;  51  id.  61. 


Li.MLJ'ATiON    OF    LIABILITV, 


nized  in  the  admiralty  courts  of  either.  The  Lottawanna,  21  Wall. 
558;  The  Scotland,  105  U.  S.  24,  29,  33;  The  Belganland,  111 
U.  S.  355,  369;  The  Harrisburg,  119  U.  S.  199;  The  Hamburg.  _' 
Moore  P.  C.  (x.  s.)  289,  319;  s.  c.  Brown  &  Lush,  253,  272; 
Lloyd  v.  Guibert,  L.  R.  1  Q.  B.  115,  123,  124;  s.  c.  6  B.  &  S.  100, 
134,  136;  The  Gaetano  &  Maria,  7  P.  D.  137,  143. 

It  was  argued  in  this  court,  as  it  had  been  below,  that  as  the  con- 
tract was  to  be  chiefly  performed  on  board  of  a  British  vessel  am! 
be  finally  completed  in  Great  Britain,  and  the  damage  occurred  in 
Great  Britain,  the  case  should  be  determined  by  the  British  law.  and 
that  by  that  law  the  clause  exempting  the  appellant  from  liability 
for  losses  occasioned  by  the  negligence  of  its  servants  was  valid. 

It  appears  by  the  cases  cited  in  behalf  of  the  appellant,  and  is 
hardly  denied  by  the  appellee,  that  under  the  existing  law  of  Great 
Britain,  as  declared  by  the  latest  decisions  of  her  courts,  common 
carriers,  by  land  or  sea,  except  so  far  as  they  are  controlled  by  the 
pro  visions  of  the  Railway  and  Canal  Traffic  Act  of  1854,  are  per- 
mitted to  exempt  themselves  by  express  contract  from  responsibility 
for  losses  occasioned  by  negligence  of  their  servants.  The  Duero, 
L.  B.  2  Ad.  &  Ec.  393;  Taubman  v.  Pacific  Co.,  26  Law  Times 
(jt.  s.)  704;  Steel  v.  State  Line  Steamship  Co.,  3  App.  Cas.  72; 
Manchester,  etc.  R.  v.  Brown,  8  App.  Cas.  703.  It  may  therefore 
be  assumed  that  the  stipulation  now  in  question,  though  invalid  by 
our  law,  would  be  valid  according  to  the  law  of  Great  Britain. 

The  general  rule  as  to  what  law  should  prevail,  in  case  of  a  con- 
flict of  laws  concerning  a  private  contract,  was  concisely  and  exactly 
stated  before  the  Declaration  of  Independence  by  Lord  Mansfield 
(as  reported  by  Sir  William  Blackstone,  who  had  been  of  counsel  in 
the  case)  as  follows:  "The  general  rule,  established  ex  comitate  et 
jure  gentium  is  that  the  place  where  the  contract  is  made,  and  not 
where  the  action  is  brought,  is  to  be  considered  in  expounding  and 
enforcing  the  contract.  But  the  rule  admits  of  an  exception,  when 
the  parties  (at  the  time  of  making  the  contract)  had  a  view  to  a 
different  kingdom."  Robinson  v.  Bland,  1  W.  Bl.  234,  256,  258; 
s.  c.  2  Bur.  1077,  1078. 

This  court  has  not  heretofore  had  occasion  to  consider  by  what 
law  contracts  like  those  now  before  us  should  be  expounded.  But  it 
lias  often  affirmed  and  acted  on  the  general  rule  that  contracts  are 
to  be  governed  as  to  their  nature,  their  validity,  and  their  interpre- 
tation, by  the  law  of  the  place  where  they  were  made,  unless  the 
contracting  parties  clearly  appear  to  have  had  some  other  law  in 
view.  Cox  v.  United  States,  6  Pet.  172;  Scudder  v.  Union  Bank, 
91  U.  S.  406;  Pritchard  v.  Norton,  106  U.  S.  124;  Lamar  v.  Micon, 
114  U.  S.  218;  Watts  v.  Camors,  115  U.  S.  353,  362. 


496  CARRIERS   OF    GOODS. 

This  review  of  the  principal  cases  demonstrates  that  according  to 
the  great  preponderance,  if  not  the  uniform  concurrence,  of  author- 
ity, the  general  rule  that  the  nature,  the  obligation,  and  the  inter- 
pretation of  a  contract  are  to  be  governed  by  the  law  of  the  place 
where  it  is  made,  unless  the  parties  at  the  time  of  making  it  have 
some  other  law  in  view,  requires  a  contract  of  affreightment,  made 
in  one  country  between  citizens  or  residents  thereof,  and  the  per- 
formance of  which  begins  there,  to  be  governed  by  the  law  of  that 
country,  unless  the  parties,  when  entering  into  the  contract,  clearly 
manifest  a  mutual  intention  that  it  shall  be  governed  by  the  law  of 
some  other  country. 

There  does  not  appear  to  us  to  be  anything  in  either  of  the  bills 
of  lading  in  the  present  case  tending  to  show  that  the  contracting 
parties  looked  to  the  law  of  England,  or  to  any  other  law  than  to 
that  of  the  place  where  the  contract  was  made. 

The  bill  of  lading  for  the  bacon  and  hams  was  made  and  dated  at 
New  York,  and  signed  by  the  ship's  agent  there.  It  acknowledges 
that  the  goods  have  been  shipped  "  in  and  upon  the  steamship  called 
Montana,  now  lying  in  the  port  of  New  York  and  bound  for  the  port 
of  Liverpool."  It  contains  no  indication  that  the  owners  of  the 
steamship  are  English,  or  that  their  principal  place  of  business  is  in 
England,  rather  than  in  this  country.  Oh  the  contrary,  the  only 
description  of  the  line  of  steamships  or  of  the  place  of  business  of 
their  owners,  is  in  a  memorandum  in  the  margin,  as  follows:  "Guion 
Line.  United  States  Mail  Steamers.  New  York:  29  Broadway. 
Liverpool:  11  Rumford  St."  No  distinction  is  made  between  the 
places  of  business  at  New  York  and  at  Liverpool,  except  that  the 
former  is  named  first.  The  reservation  of  liberty,  in  case  of  an 
interruption  of  the  voyage,  "to  transship  the  goods  by  any  other 
steamer,"  would  permit  transshipment  into  a  vessel  of  any  other  line, 
English  or  American.  And  general  average  is  to  be  computed, 
not  by  any  local  law  or  usage,  but  "according  to  York- Antwerp 
rules,"  which  are  the  rules  drawn  up  in  1864  at  York  in  England, 
and  adopted  in  1877  at  Antwerp  in  Belgium,  at  international  con- 
ferences of  representatives  of  the  more  important  mercantile  associa- 
tions of  the  United  States,  as  well  as  of  the  maritime  countries  of 
Europe.     Lowndes  on  General  Average  (3d  ed.),  Appendix  Q. 

The  contract  being  made  at  New  York,  the  shipowner  having  a 
place  of  business  there,  and  the  shipper  being  an  American,  both 
parties  must  be  presumed  to  have  submitted  themselves  to  the  law 
there  prevailing,  and  to  have  agreed  to  its  action  upon  their  con- 
tract. The  contract  is  a  single  one,  and  its  principal  object,  the 
transportation  of  the  goods,  is  one  continuous  act,  to  begin  in  the 
port  of  New  York,  to  be  chiefly  performed  on  the  high  seas,  and  to 
end  at  the  port  of  Liverpool.  The  facts  that  the  goods  are  to  be 
delivered  at  Liverpool,  and  the  freight  and  primage,  therefore,  pay- 
able there  in  sterling  currency,  do  not  make  the  contract  an  English 


LIMITATION    OF    LIABILITY.  497 

contract,  or  refer  to  the  English  law  the  question  of  the  liability  of 
the  carrier  for  the  negligence  of  the  master  and  crew  in  the  course 
of  the  voyage.  Peninsular  &  Oriental  Co.  v.  Shand,1  Lloyd  v. 
Guibert; 2  and  Chartered  Bank  of  India  v.  Netherlands  Steam  Navi- 
gation Co.,8  before  cited. 

There  is  even  less  ground  for  holding  the  three  bills  of  lading  of 
the  cotton  to  be  English  contracts.     Each  of  them  is  made  and  dated 
at  Nashville,  an  inland  city,  and  is  a  through  bill  of  lading,  over 
lie  Louisville  and  Nashville  Railroad  and  its  connections,  and  by 
he  Williams  and  Guion    Steamship  Company,  from   Nashville   to 
Liverpool;  and  the  whole  freight  from  Nashville  to  Liverpool  is  to 
be  "at  the  rate  of  fifty -four  pence  sterling  per  100  lbs.  gross  weight." 
It  is  stipulated  that  the  liability  of  the  Louisville  and   Nashville 
Railroad  and  its  connections  as   common  carriers  "terminates  on 
delivery  of  the  goods  or  property  to  the  steamship  company  at  New 
York,    when  the   liability  of   the   steamship    commences,    and   not 
before ;  "  and  that  "  the  property  shall  be  transported  from  the  port 
of  New  York  to  the  port  of  Liverpool  by  the  said  steamship  com- 
pany,  with   liberty  to   ship  by  any  other  steamship  or  steamship 
line."     And  in  the  margin  is  this  significant  reference  to  a  provision 
of  the  statutes  of  the  United  States,  applicable  to  the  ocean  trans- 
portation only :  "  Attention  of  shippers  is  called  to  the  Act  of  Con- 
gress of  1851 :  '  Any  person  or  persons  shipping  oil  of  vitriol,  un- 
slacked  lime,  inflammable  matches  (or)  gunpowder,  in  a  ship  or  vessel 
taking  cargo  for  divers  persons  on  freight,  without  delivering  at  the 
time  of  shipment  a  note  in  writing,  expressing  the  nature  and  char- 
acter of  such  merchandise,  to  the  master,  mate,  or  officer,  or  person 
in  charge  of  the  loading  of  the  ship  or  vessel,  shall  forfeit  to  the 
United  States  One  Thousand  Dollars.'"     Act  of  March  3,  1851,  c. 
43,  sec.  7;  9  Stat.  636;  Rev.  Stat.  sec.  4288. 

It  was  argued  that  as  each  bill  of  lading,  drawn  up  and  signed  by 
the  carrier  and  assented  to  by  the  shipper,  contained  a  stipulation 
that  the  carrier  should  not  be  liable  for  losses  by  perils  of  the  sea 
arising  from  the  negligence  of  its  servants,  both  parties  must  be 
presumed  to  have  intended  to  be  bound  by  that  stipulation,  and  must, 
therefore,  the  stipulation  being  void  by  our  law  and  valid  by  the 
law  of  England,  have  intended  that  their  contract  should  be  governed 
by  the  English  law;  and  one  passage  in  the  judgment  in  Peninsular 
&  Oriental  Co.  v.  Shand  gives  some  color  to  the  argument.  3 
Moore  P.  C.  (n.  s.)  291.  But  the  facts  of  the  two  cases  are  quite 
different  in  this  respect.  In  that  case,  effect  was  given  to  the  law 
of  England,  where  the  contract  was  made;  and  both  parties  were 
English,  and   must  be  held  to  have  known  the  law  of  their  own 

1  3  Moore  P.  C.  (s.  s.)  272. 

2  6  B.  &  S.  100  ;  s.  c.  L.  R.  1  Q.  B.  115. 
8  9  Q.  B.  D.  118,  and  10  Q.  B.  D.  521. 


498  CARRIERS    OF    GOODS. 

country.  In  this  case,  the  contract  was  made  in  this  country* 
between  parties  one  residing  and  the  other  doing  business  here;  and 
the  law  of  England  is  a  foreign  law,  which  the  American  shipper  is 
not  presumed  to  know.  Both  parties  or  either  of  them  may  have 
supposed  the  stipulation  to  be  valid;  or  both  or  either  may  have 
known  that  by  our  law,  as  declared  by  this  court,  it  was  void.  In 
either  aspect,  there  is  'no  ground  for  inferring  that  the  shipper,  at 
least,  had  any  intention,  for  the  purpose  of  securing  its  validity, 
to  be  governed  by  a  foreign  law,  which  he  is  not  shown,  and  oanno' 
be  presumed,  to  have  had  any  knowledge  of. 

Our  conclusion  on  the  principal  question  in  the  case  may  be 
summed  up  thus.  Each  of  the  bills  of  lading  is  an  American  and  not 
an  English  contract,  and,  so  far  as  concerns  the  obligation  to  carry 
the  goods  in  safety,  is  to  be  governed  by  the  A.merican  law,  and  not 
by  the  law,  municipal  or  maritime,  of  any  other  country.  By  our 
law,  as  declared  by  this  court,  the  stipulation  by  which  the  appel- 
lant undertook  to  exempt  itself  from  liability  for  the  negligence  of 
its  servants  is  contrary  to  public  policy  and  therefore  void ;  and  the 
loss  of  the  goods  was  a  breach  of  the  contract,  for  which  the  shipper 
might  maintain  a  suit  against  the  carrier.  This  being  so,  the  fact 
that  the  place  where  the  vessel  went  ashore,  in  consequence  of  the 
negligence  of  the  master  and  officers  in  the  prosecution  of  the  voy- 
age, was  upon  the  coast  of  Great  Britain,  is  quite  immaterial. 


THE   MAIX   v.   WILLIAMS. 
152  U.  S.  122 ;  14  S.  C.  Rep.  486.     1894. 

This  was  an  appeal  from  a  decree  entered  in  a  proceeding  taken  to 
limit  the  liability  of  the  owners  of  the  steamship  Main  for  a  collision 
with  the  steamship  Montana,  in  respect  to  her  "freight  pending." 

The  proceedings  were  begun  by  a  petition  filed  by  the  Nord 
Deutscher  Lloyd,  owner  of  the  Main,  setting  forth  the  filing  of  a 
libel  against  the  steamship  for  a  collision  with  the  steamship  Montana, 
which  occurred  in  the  Patapsco  River  on  January  5,  1889,  wherein 
was  claimed  a  sum  largely  in  excess  of  the  value  of  the  Main  and  her 
freight  then  pending,  and  praying  for  the  appointment  of  appraisers 
of  the  interest  of  petitioner  in  the  ship  and  her  freight  for  the  voyage. 
The  value  of  the  vessel  was  subsequently  fixed  by  stipulation  at 
$70,000.  The  appraisers  returned  the  amount  of  freight  pending 
at  $1577.38,  which  was  disputed.  The  decree  of  the  District  Court 
subsequently  fixed  the  gross  amount  of  freight  upon  the  cargo  on 
board  at  the  time  of  the  collision,  prepaid  at  Bremen,  as  well  as  col- 
lectable at  Baltimore,   at  $1870.10,  and  added  thereto  $5200  gross 


( 


LIMITATION    OF    LIABILITY.  499 

passage  money  prepaid  at  Bremen  for  the  transportation  of  emigrant 
passengers  for  Baltimore,  making  in  all  87070.10. 

On  appeal  to  the  Circuit  Court  this  decree  was  affirmed,  and  the 
owners  of  the  Main  appealed  to  this  court. 

Mr.  Justice  Brown,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

This  case  raises  two  questions :  (1)  as  to  whether,  under  Revised 
Statutes,  sec.  4283,  the  liability  of  a  ship  owner  for  the  "  freight  then 
pending "  extends  to  passage  money ;  and,  (2)  whether  it  extends  to 
freight  prepaid  at  the  port  of  departure. 

1.    By  the   common  law,  as   administered  both   in   England   and 
America,  the  personal  liability  of  the  owner  of  a  vessel  for  damages 
by  collision  is  the  same  as  in  other  cases  of  negligence,  and  is  limited 
only  bv  the  amount  of  the  loss  and  by  his  ability  to  respond.     Wilson 
v.  Dickson,  2  B.  &  Aid.  2;  The  Dundee,  1  Hagg.  109,  120;  The  Aline, 
1  W.  Rob.  Ill ;  The  Mellona,  3  W.  Rob.  16,  20 ;  The  Wild  Ranger, 
Lush.  553,  564 ;  Cope  v.  Doherty,  4  K.  &  J.  367,  378.    The  civil  law,  too, 
as  well  as  the  general  law  maritime,  made  no  distinction  in  this  par- 
ticular in  favor  of  ship  owners.     (Emerigon,  Contrats  a  la  grosse,  c.  4, 
sec.  11.)     Nor  did  the  ancient  laws  of  Oleron  or  Wisby  or  the  Hanse 
towns  suggest  any  restriction  upon  such  liability.     Indeed,  it  is  diffi- 
cult, if  not  impossible,  to  say  when  and  where  the  restrictions  of  the 
modern  law  originated.     They  are  found  in  the  Consolato  del  Mare, 
which,  in  two  separate  chapters,  expressly  limits  the  liability  of  the 
part  owner  to  the  value  of  his  share  in  the  ship.     Vinnius,  an  early 
Continental  writer,  states  that  by  the  law  of  the  land  the  owners 
were  not  chargeable  beyond  the  value  of  the  ship  and  the  things  that 
were  in  it.     The  Hanseatic  Ordinance  of  1644  also  pronounced  the 
goods  of  the  owner  discharged  from  claims  for  damages  by  the  sale 
of  the   ship  to  pay  them.     But  however  the  practice  originated,  it 
appears,  by  the  end  of  the  seventeenth  century,  to  have  become  firmly 
established  among  the  leading  maritime  nations  of  Europe,  since  the 
French  Ordinance  of  1681,  which  has  served  as  a  model  for  most  of 
the  modern  maritime  codes,  declares  that  the  owners  of  the  ship  shall 
be  answerable  for  the  acts  of  the  master,  but  shall  be  discharged 
therefrom  upon  relinquishing  the  ship  and  freight.     (Bk.  II,  Tit. 
VIII,  Art.  2.)     A  similar  provision  in  the  Ordinance  of  Rotterdam 
of  1721  declared  that  the  owners  should  not  be  answerable  for  any 
act  of  the  master  done  without  their  order,  any  further  than  their 
part  of  the  ship  amounted  to ;  and  by  other  articles  of  the  same  ordi- 
nance it  was  provided  that  each  part-owner  should  be  liable  for  the 
value  of  his  own  share.     The  French  Ordinance  of  1681  was  carried, 
with"  slight   change   of   phraseology,   into   the   commercial   code   of 
France,  and  all  the  other  maritime  nations  whose  jurisprudence  is 
founded  upon  the  civil  law.     (Code  de  Commerce  (French),  Art.  216; 
German  Mar.  Code,  Art.  452;   Code  of  the  Netherlands,  Art.  321  : 
Belgian  Code,  Art.  216;  Italian  Code,  Art.  311;  Russian  Code,  Art. 


500  CARRIERS   OF   GOODS. 

649;  Spanish  Code,  Art.  621,  622;  Portuguese  Code,  Art.  1345; 
Brazilian  Code,  Art.  494 ;  Argentine  Code,  Art.  1039 ;  Chilian  Code, 
Art.  879.) 

The  earliest  legislation  in  England  upon  the  subject  is  found  in  the 
act  of  7  Geo.  2,  c.  15,  passed  in  1734,  which  enacted  that  no  ship 
owner  should  be  responsible  for  loss  or  damage  to  goods  on  board  the 
ship  by  embezzlement  of  the  master  or  mariners,  or  for  any  damage 
occasioned  by  them  without  the  privity  or  knowledge  of  such  owner, 
further  than  the  value  of  the  ship  and  her  appurtenances,  and  the 
freight  due  or  to  grow  due  for  the  voyage,  and  if  greater  damage 
occurred  it  should  be  averaged  among  those  who  sustained  it.  By 
subsequent  acts  this  limitation  of  liability  was  extended  to  losses  in 
which  the  master  and  mariners  had  no  part,  to  losses  by  their  negli- 
gence, and  to  damage  done  by  collision,  while  there  was  an  entire 
exemption  of  liability  for  loss  or  damage  by  fire  or  for  loss  of  gold 
and  jewelry,  unless  its  nature  and  value  were  disclosed.  In  all  these 
statutes  the  liability  of  the  owner  was  limited  to  his  interest  in  the 
ship  and  freight  for  the  voyage. 

By  section  505  of  the  Merchants'  Shipping  Act  of  1854,  16  and 
17  Vict.  c.  131,  freight  was  deemed  to  include  the  value  of  the  carriage 
of  goods,  and  passage  money.  Owing,  probably,  to  some  difficulties 
encountered  in  determining  at  what  point  of  time  the  value  of  the  ship 
should  be  taken,  and  to  establish  a  more  uniform  and  equitable  method 
of  limiting  the  liability  of  the  owner,  the  Merchant  Shipping  Act 
Amendment  Act  of  1862  extended  the  provisions  of  the  prior  acts  to 
foreign  as  well  as  British  ships,  and  to  cases  of  loss  of  life  or  personal 
injury,  as  well  as  damage  or  loss  to  the  cargo,  and  provided  that  the 
owners  should  not  be  liable  in  damages  in  respect  of  loss  of  life  or 
personal  injury,  "  to  an  aggregate  amount  exceeding  fifteen  pounds  for 
each  ton  of  their  ship's  tonnage,"  nor  in  respect  of  loss  or  damage  to 
ships  or  their  cargoes  to  an  amount  exceeding  eight  pounds  per  ton. 

The  earliest  American  legislation  upon  this  subject  is  found  in  the 
statute  of  Massachusetts  passed  in  1818,  and  revised  in  1836.  This 
was  taken  substantially  from  the  statute  of  George  II.  It  was 
followed  by  an  act  of  legislature  of  Maine  in  1831,  copied  from  the 
statute  of  Massachusetts. 

The  attention  of  Congress  does  not  seem  to  have  been  called  to  the 
necessity  for  similar  legislation  until  1848,  when  the  case  of  The 
Lexington,  reported  under  the  name  of  the  New  Jersey  Steam 
Navigation  Co.  v.  Merchants'  Bank,  6  How.  344,  was  decided  by  this 
court.  In  this  case  the  owners  of  a  steamboat,  which  was  burnt  on 
Long  Island  Sound,  were  held  liable  for  about  $18,000  in  coin,  which 
had  been  shipped  upon  the  steamer  and  lost.  In  consequence  of  the 
uneasiness  produced  among  ship  owners  by  this  decision,  and  for  the 
purpose  of  putting  American  shipping  upon  an  equality  with  that  of 
other  maritime  nations,  Congress,  in  1851,  enacted  what  is  commonly 
known  as   the  Limited  Liability  Act,  which  has  been  incorporated 


LIMITATION    OF    LIABILITY.  50! 

into  the  Kevised  Statutes,  sections  4282  to  4290,  and  amended  in 
certain  particulars  not  material  to  this  case,  in  two  subsequent  acts. 
Act  of  June  26,  1884,  c.  121,  sec.  18,  23  Stat.  53,  57;  Act  of  June  19, 
1886,  c.  421,  sec.  4,  24  Stat.  79,  80. 

By  section  4283,  upon  the  construction  of  which  this  case  depends, 
"  the  liability  of  the  owner  of  any  vessel,  for  any  embezzlement,  loss, 
or  destruction,  by  any  person,  of  any  property,  goods,  or  merchandise, 
shipped  or  put  on  board  of  such  vessel,  or  for  any  loss,  damage,  or 
injury  by  collision,  or  for  any  act,  matter,  or  thing  lost,  damage,  or 
forfeiture  done,  occasioned,  or  incurred,  without  the  privity,  or  knowl- 
edge of  such  owner  or  owners,  shall  in  no  case  exceed  the  amount  or 
value  of  the  interest  of  such  owner  in  such  vessel,  and  her  freight 
then  pending." 

By  the  law  maritime  the  word  "freight"  is  used  to  denote,  not  the 
thing  carried,  but  the  compensation  for  the  carriage  of  it.  Prior  to 
the  era  of  steam  navigation,  travel  by  sea  was  comparatively  of  such 
little  magnitude  that  "freight"  was  commonly  used  to  denote  com- 
pensation for  the  carriage  of  goods ;  yet,  in  Les  Bones  Costumes  de  la 
Mar,  (Black  Book,  3  Twiss'  ed.  50,  App.  Pt.  Ill,)  it  is  said  "  the  term 
passenger  includes  all  those  who  ought  to  pay  freight  for  their  persons 
apart  from  their  merchandise,"  and  "  every  man  is  called  a  passenger 
who  pays  freight  for  his  own  person,  and  for  goods  which  are  not 
merchandise.  And  every  person  who  carries  less  than  two  quintals 
ought  to  pay  freight  for  his  own  person  ;  "  and  in  this,  one  of  the  most 
ancient  books  upon  the  maritime  law,  (at  least  as  old  as  the  fourteenth 
century,)  it  is  also  said :  "  And  in  this  same  manner  with  regard  to 
any  person  who  may  come  on  board  the  ship  without  the  consent  of 
the  managing  owner  or  of  the  ship's  clerk,  it  is  in  the  power  of  the 
managing  owner  to  take  what  freight  he  pleases."  (Ibid.  pp.  173-5.) 
That  passengers'  fares  were  regarded  as  the  substantial  equivalent  of 
freight  is  evident  from  the  case  of  Mulloy  v.  Backer,  5  East,  316,  321, 
in  which  Lawrence,  Judge,  remarks  that  "foreign  writers  consider 
passage  money  the  same  as  freight;"  and  Lord  Ellenborough  adds, 
"  except  for  the  purposes  of  lien,  it  seems  the  same  thing."  In  this 
country,  as  early  as  1801,  it  was  said  by  Judge  Peters  in  the  case  of 
the  Brig  Cynthia,  1  Pet.  Adm.  203,  206 :  "  I  think  the  force  and  true 
meaning  of  ' freight'  has  been  misconceived.  It  is  a  technical  expres- 
sion. It  does  not  always  imply  that  it  is  the  naulum,  merces,  or  fare, 
for  the  transportation  of  goods.  It  is  applied  to  all  rewards,  hire,  or 
compensation,  paid  for  the  use  of  [ships ;  either  for  an  entire  voyage, 
one  divided  into  sections,  or  engaged  by  the  month,  or  any  period.  It 
is  also  called  freight  (and  it  is  to  be  determined  on  the  like  legal  prin- 
ciples) in  the  case  of  passengers,  transported  in  vessels,  for  compensa- 
tion. In  Saxon,  from  which  much  of  the  English  language  is  derived, 
it  is  called  fracht,  whether  it  be  a  compensation  for  transportation  in 
ships  by  sea,  or  carriage  by  land,  either  of  goods  or  persons,  in  gross, 
or  detail." 


502  CARRIERS   OF   GOODS. 

With  the  introduction  of  steam  vessels,  however,  the  carriage  of 
passengers  became  at  once  a  most  important  branch  of  maritime  in- 
dustry, and  modern  authorities  have  generally  placed  the  fare  or  com- 
pensation for  the  carriage  of  such  passengers  upon  the  same  footing 
as  freight  for  the  transportation  of  goods.  While  many  of  the  lexi- 
cographers, such  as  Webster,  Worcester,  and  the  Imperial  Dictionary, 
still  define  freight  as  the  sum  paid  by  a  party  hiring  a  ship  or  part  of 
a  ship,  or  for  -the  carriage  of  goods,  in  the  Century  Dictionary  it  is 
said  to  be,  in  a  more  general  sense,  the  price  paid  for  the  use  of  a 
ship,  including  the  transportation  of  passengers.  Similar  definitions 
are  given  in  the  law  dictionaries  of  Burrill,  Bouvier,  and  Anderson. 
See  also  Benedict's  Admiralty,  sections  283,  286,  and  288. 

Our  attention  has  not  been  called  to  any  express  adjudications  upon 
the  question  involved  here,  but,  so  far  as  the  courts  have  been  called 
upon  to  consider  the  subject,  they  have  usually  given  to  the  word 
freight  the  same  definition.  Thus  in  Flint  v.  Plemyng,  1  B.  &  Ad.  45, 
which  was  an  action  upon  an  insurance  policy  upon  freight,  it  was 
held  that  plaintiff  could  recover  freight  upon  his  own  goods,  Lord 
Tenterden  holding  that  the  word  "  freight,"  as  used  in  policies  of  in- 
surance, imported  the  benefit  derived  from  the  employment  of  a  ship. 
So,  in  Brown  v.  Harris,  2  Gray,  359,  the  Supreme  Court  of  Massachu- 
setts, holding  that  passage  money,  paid  in  advance,  might  be  recovered 
back,  upon  the  breaking  up  of  the  voyage,  observed  that  the  rule  was 
well  settled  as  to  freight  for  the  carriage  of  goods ;  that  if  freight  be 
paid  in  advance,  and  the  goods  not  carried  for  any  event,  not  impu- 
table to  the  shipper,  it  is  to  be  repaid,  unless  there  be  a  special  agree- 
ment to  the  contrary.  The  court  further  observed :  "  Passage  money 
and  freight  are  governed  by  the  same  rules.  Indeed,  freight,  in  its 
more  extensive  sense,  is  applied  to  all  compensation  for  the  use  of 
ships,  including  transportation  of  passengers."     See  also  3  Kent  Com. 

219. 

It  is  true  that  in  the  case  of  Lewis  v.  Marshall,  7  Man.  &  Gr.  729, 
it  was  said  that  freight  was  a  term  applicable  to  goods  only,  but  this 
was  said  with  reference  to  a  contract  which  made  a  distinction  be- 
tween freight  upon  a  cargo  and  the  fare  of  steerage  passengers.  The 
same  remark  may  be  made  of  the  case  of  Denoon  v.  Home  and  Colonial 
Insurance  Co.,  L.  E.  7  C.  P.  341,  in  which  it  was  held  that  the  ques- 
tion whether  the  term  "  freight "  in  a  marine  policy  includes  passage 
money,  must  depend  upon  the  circumstances  of  each  particular  case, 
and  the  context  of  the  particular  policy ;  and,  in  that  case,  under  the 
particular  terms  of  the  policy,  which  made  a  different  rate  of  insurance 
upon  freight  and  the  transportation  of  coolies,  it  was  held  that  the 
insurance  did  not  cover  the  price  to  be  paid  for  their  transportation. 

The  real  object  of  the  act  in  question  was  to  limit  the  liability  of 
vessel  owners  to  their  interest  in  the  adventure;  hence,  in  assessing 
the  value  of  the  ship,  the  custom  has  been  to  include  all  that  belongs 
to  the  ship,  and  may  be  presumed  to  be  the  property  of  the  owner, 


LIMITATION    OF    LIABILITY.  503 

not  merely  the  hull,  together  with  the  boats,  tackle,  apparel,  and  fur- 
niture, but  all  the  appurtenances,  comprising  whatever  is  on  board  for 
the  object  of  the  voyage,  belonging  to  the  owners,  whether  such  object 
be  warfare,  the  conveyance  of  passengers,  goods,  or  the  fisheries.  The 
Dundee,  1  Hagg.  109 ;  Gale  v.  Laurie,  5  B.  &  C.  156,  164.  It  does  not, 
however,  include  the  cargo,  which,  presumptively  at  least,  does  not 
belong  to  the  owner  of  the  ship. 

There  is  no  reason,  however,  for  giving  to  the  word  "freight"  a 
narrow  or  technical  definition.  The  fares  of-  the  passengers  are  as 
much  within  the  reason  of  the  rule  as  the  freight  upon  the  cargo.  It 
would  be  creating  a  distinction  without  a  real  difference  to  say  that  a 
transatlantic  steamer  laden  with  passengers  should  be  wholly  exempt 
from  the  payment  of  freight,  while  another,  solely  engaged  in  the 
carriage  of  merchandise,  should  be  obliged  to  pay  the  entire  proceeds 
of  her  voyage.  The  words  "  freight  pending,"  in  section  4283,  or 
"  freight  for  the  voyage,"  section  4284,  were  copied  from  the  English 
statute  of  George  II,  which,  in  turn,  had  taken  them  from  the  Marine 
Ordinance  of  1681,  and  the  prior  Continental  codes ;  but  in  both  cases 
they  were  evidently  intended  to  represent  the  earnings  of  the  voyage, 
whether  from  the  carriage  of  passengers  or  merchandise.  If  these 
words  were  used  instead  of  the  words  "  freight  for  the  voyage,"  it 
would  probably  more  accurately  express  the  intent  of  the  legislature. 

2.  Nor  by  the  use  of  the  word  "  pending  "  was  it  intended  to  limit 
the  recovery  to  the  uncollected  freight,  or  such  as  had  not  been  com- 
pletely earned  at  the  time  of  the  disaster.  As  the  object  of  the  statute 
was  to  curtail  the  amount  that  would  otherwise  be  recoverable,  it 
should  not  be  construed  to  abridge  the  rights  of  the  owner  of  the 
injured  vessel  to  a  greater  extent  than  its  language  will  fairly  warrant. 
This  is  the  view  taken  in  Wilson  v.  Dickson,  2  B.  &  Aid.  2,  10,  in 
which  the  court  held  the  words  "freight  due  or  to  grow  due"  included 
all  the  freight  for  the  voyage,  whether  paid  in  advance  or  not. 

It  is  worthy  of  remark  in  this  connection  that  the  codes  of  the 
Netherlands,  of  Chili,  and  of  the  Argentine  Republic,  in  the  sections 
above  quoted,  extend  the  liability  for  freight  to  such  as  is  earned  and 
yet  to  be  earned. 

The  English  courts  have  held,  very  properly  we  think,  that  these 
statutes  should  be  strictly  construed.  As  observed  by  Abbott,  C.  J., 
in  Gale  v.  Laurie,  5  B.  &  C.  156,  164 :  "  Their  effect,  however,  is  to 
take  away  or  abridge  the  right  of  recovering  damages,  enjoyed  by  the 
subjects  of  this  country  at  the  common  law,  and  there  is  nothing  to 
require  a  construction  more  favorable  to  the  ship  owner  than  the  plain 
meaning  of  the  word  imports."  To  the  same  effect  are  the  remarks 
of  Sir  Robert  Phillimore  in  The  Andalusian,  3  P.  D.  182,  190,  and  in 
The  Northumbria,  L.  R.  3  Ad.  &  Ec.  6,  13.  Speaking  of  this  statute, 
Lord  Justice  Brett,  in  Chapman  v.  Royal  Netherlands  Nav.  Co.,  4 
P.  D.  157, 184,  remarked  :  "  A  statute  for  the  purposes  of  public  policy, 
derogating  to  the  extent  of  injustice,  from  the  legal  rights  of  individual 


504  CARRIERS    OF    GOODS. 

parties,  should  be  so  construed  as  to  do  the  least  possible  injustice. 
This  statute,  whenever  applied,  must  derogate  from  the  direct  right 
of  the  ship  owner  against  the  other  ship  owner.  ...  It  should  be  so 
construed  as  to  derogate  as  little  as  is  possible  consistently  with  its 
phraseology,  from  the  otherwise  legal  rights  of  the  parties." 

While,  from  the  universal  habit  of  insuring  vessels,  the  application 
of  the  statute  probably  results  but  rarely  in  an  actual  injustice  to  the 
owner  of  the  injured  vessel,  yet,  being  in  derogation  of  the  common 
law,  we  think  the  court  should  not  limit  the  right  of  the  injured  party 
to  a  recovery  beyond  what  is  necessary  to  effectuate  the  purposes  of 
Congress. 

We  are  satisfied  with  the  conclusions  of  the  court  below  upon  both 
of  the  points  involved,  and  its  decree  is,  therefore, 

Affirmed. 


CALDERON   v.   ATLAS   STEAMSHIP   COMPANY. 

170  U.  S.  272  ;  18  S.  C.  Rep.  588.     1898. 

This  was  a  suit  instituted  in  the  District  Court  for  the  Southern 
District  of  New  York,  in  admiralty,  by  the  libellant,  Calderon,  who 
was  at  that  time  consul  general  for  the  United  States  of  Colombia  at 
New  York,  to  recover  from  the  respondent,  the  Atlas  Steamship 
Company,  the  sum  of  $5413.18,  the  value  of  a  consignment  of  goods 
shipped  from  New  York  to  Savanilla  by  the  libellant  on  the  steamer 
Ailsa,  which  goods  the  master  failed  to  deliver  at  the  port  of  destina- 
tion, and  thereafter  brought  back  to  New  York,  where  they  were  re- 
shipped  by  the  respondent  on  the  steamer  Alvo.  The  goods  were  lost 
by  the  sinking  of  this  ship  through  a  peril  of  the  sea. 

It  seems  the  respondent  owned  both  the  Ailsa  and  the  Alvo,  and 
ran  them  between  New  York,  Kingston,  Savanilla,  Carthagena  and 
Port  Limon,  from  which  last-named  port  they  sailed  direct  to  New 
York,  usually  carrying  a  cargo  of  fruit.  Libellant  had  frequently 
shipped  goods  by  this  line  and  over  the  same  route,  and  on  July  19, 
1893,  about  two  hours  before  the  Ailsa  sailed  on  its  regular  voyage 
from  New  York,  delivered  to  the  company  on  its  pier,  under  authority 
of  a  special  permit  from  the  company,  the  consignment  of  goods  in 
question,  which  consisted  of  twenty-six  bales  and  three  crates  of  duck 
government  uniforms,  for  transportation  to  the  port  of  Savanilla,  and 
from  thence  to  Baranquilla  in  the  United  States  of  Colombia.  The 
receipt  given  by  the  company  to  the  truckman  who  delivered  the 
goods  stated  that  they  had  been  received  "  at  the  shipper's  risk  from 
fire,  and  subject  to  the  conditions  expressed  in  the  company's  form  of 
bill  of  lading." 

The  bill  of  lading,  subsequently  obtained  in  lieu  of  the  receipt,  and 
a  copy  of  which  was  sent  by  mail  to  the  consignee  by  the  same  steamer, 


LIMITATION    OF    LIABILITY.  505 

contained  on  its  face  the  provision  :  "  And  finally,  in  accepting  this 
bill  of  lading,  the  shipper,  owner  and  consignee  of  the  goods,  and  the 
holder  of  the  bill  of  lading,  agree  to  be  bound  by  all  of  its  stipulations, 
exceptions  and  conditions,  as  printed  on  the  back  hereof,  whether 
written  or  printed,  as  fully  as  if  they  were  signed  by  such  shipper, 
owner,  consignee,  or  holder." 

Of  the  stipulations,  exceptions  and  conditions  printed  on  the  back, 
only  the  following  are  material : 

"  1.  It  is  also  mutually  agreed  that  the  carrier  shall  not  be  liable 
for  gold,  silver,  bullion,  specie,  documents,  jewellery,  pictures,  em- 
broideries, works  of  art,  silks,  furs,  china,  porcelain,  watches,  clocks 
or  for  goods  of  any  description  which  are  above  the  value  of  $100 
per  package,  unless  bills  of  lading  are  signed  therefor,  with  the  value 
therein  expressed,  and  a  special  agreement  is  made." 

"  9.  Also,  in  case  any  part  of  the  goods  cannot  be  found  for  delivery 
during  the  steamer's  stay  at  the  port  of  destination,  they  are  to  be 
forwarded  by  the  first  opportunity,  when  found,  at  the  company's 
expense,  the  steamer  not  to  be  held  liable  for  any  claim  for  delay  or 
otherwise." 

"14.  This  agreement  is  made  with  reference  to,  and  'subject  to  the 
provisions  of  U.  S.  carriers'  act,  approved  February  13,  1893." 

It  appeared  from  the  testimony  taken  that  these  goods  were  the 
last  to  be  loaded,  and  that  instead  of  being  stowed  with  other  freight 
for  Savanilla,  the  port  of  destination,  they  were  placed  in  another 
hold  of  the  ship  and  in  the  "  last  tier  to  come  out "  of  the  Carthagena 
freight.  It  also  appeared  that  the  consignment  was  not  discharged  at 
Savanilla,  and  that  it  was  not  discovered  to  be  on  board  until  the 
ship  was  well  on  its  way  to  Carthagena.  The  ship,  however,  proceeded 
on  its  voyage  without  attempting  to  make  the  delivery  of  the  goods, 
and  upon  receiving  a  cargo  of  fruit  at  Port  Limon  sailed  for  New  York, 
where  the  consignment  was  reshipped,  August  16, 1893,  on  the  steamer 
Alvo.  No  notice  was  given  to  libellant  of  the  return  of  the  goods  or 
of  their  reshipment.  The  Alvo  was  caught  in  a  hurricane  and  lost  at 
sea  with  her  entire  cargo. 

The  District  Court  held  that  there  was  a  "  failure  in  the  proper 
delivery  "  of  the  goods  at  Savanilla,  but  that  inasmuch  as  bills  of 
lading  were  not  signed  specially  designating  the  value  of  each  of  the 
twenty-nine  packages,  as  provided  by  clause  one  on  the  back  of  the 
bill  of  lading,  the  liability  of  the  company  was  limited  to  $100  for 
each  of  the  twenty-nine  packages,  or  $2900  in  all.  Calderon  v.  Atlas 
Steamship  Co.,  64  Fed.  Eep.  874 

From  this  decree  the  libellant  alone  appealed,  and  upon  the  hear- 
ing the  Circuit  Court  of  Appeals  for  the  Second  Circuit,  by  a  majority 
opinion,  sustained  the  decree  of  the  court  below.     35  U.  S.  App.  587. 

Mr.  Justice  Brown,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

Two  questions  are  presented  by  the  record  in  this  case:    First, 


506  CARRIERS    OF    GOODS. 

whether  the  steamship  company  was  liable  at  all  under  its  bill  of 
lading  for  the  non-delivery  of  the  goods  at  Savanilla ;  second,  whether 
such  liability  was  limited  to  the  sum  of  $100  for  each  package. 

1.  Both  the  District  Court  and  the  Court  of  Appeals  held  the  com- 
pany to  be  liable  under  section  1  of  the  Harter  Act,  of  February  13, 
1893,  c.  105,  27  Stat.  445,  which  provides  "  that  it  shall  not  be  lawful 
for  the  manager,  agent,  master  or  owner  of  any  vessel  transporting 
merchandise  or  property  from  or  between  ports  of  the  United  States 
and  foreign  ports  to  insert  in  any  bill  of  lading  or  shipping  document 
any  clause,  covenant  or  agreement  whereby  it,  he  or  they  shall  be  re- 
lieved from  liability  for  loss  or  damage  arising  from  negligence,  fault 
or  failure  in  proper  loading,  stowage,  custody,  care  or  proper  delivery 
of  any  and  all  lawful  merchandise  or  property  committed  to  its  or 
their  charge.  Any  and  all  words  or  clauses  of  such  import  inserted 
in  bills  of  lading  or  shipping  receipts  shall  be  null  and  void  and  of  no 
effect,"  and  this,  notwithstanding  the  provision  in  the  bill  of  lading 
that  "  in  case  any  part  of  the  goods  cannot  be  found  for  delivery  dur- 
ing the  steamer's  stay  at  the  port  of  destination,  they  are  to  be  for- 
warded by  first  opportunity,  when  found,  at  the  company's  expense, 
the  steamer  not  to  be  held  liable  for  any  claim  for  delay  or  otherwise." 

As  the  company  did  not  appeal  from  this  decree  it  must  be  regarded 
as  acquiescing  in  the  justice  of  such  decree  to  the  amount  therein 
awarded  to  the  libellant ;  but  as  we  should  not  make  a  further  decree 
against  the  company  for  the  amount  now  claimed  by  the  libellant  in 
excess  of  $100  per  package,  if  we  were  satisfied  that  the  company  was 
not  liable  at  all,  we  have  thought  it  best  to  consider  whether  the 
courts  below  were  correct  in  their  construction  of  the  Harter  Act. 

It  may  well  be  questioned  whether  the  provision  "  that  in  case  any 
part  of  the  goods  cannot  be  found  for  delivery  during  the  steamer's 
stay  at  the  port  of  destination  "  has  any  application  to  a  case  where 
the  goods  were  not  placed  in  the  proper  compartment  when  stowed 
on  board  the  vessel,  and  for  which  it  appears  no  search  was  made 
upon  the  arrival  at  Savanilla,  notwithstanding  the  fact  that  a  bill  of 
lading  had  been  given  for  them  and  their  shipment  had  been  entered 
upon  the  manifest  or  other  "  cargo  books  "  of  the  steamer.  It  appears 
that  after  leaving  Savanilla  the  purser  discovered  that  these  goods  had 
not  been  "  tallied  out "  on  the  cargo  books  for  that  port,  and  he  at 
once  made  search  for  them,  and  found  them  stowed  with  the  Carthagena 
cargo. 

It  was  clearly  the  duty  of  the  master  of  the  vessel  before  leaving 
Savanilla  to  examine  the  manifests  or  other  memoranda  of  the  vessel 
to  ascertain  whether  the  portion  of  the  cargo  consigned  to  that  place 
had  been  delivered,  and  if  not,  to  search  for  the  missing  consignment 
before  leaving  the  port.  His  failure  to  do  this  was  obviously  a  breach 
of  his  general  obligation  to  deliver  his  cargo  to  its  consignee,  and  it  is 
exceedingly  doubtful  whether,  even  in  the  absence  of  the  Harter  Act, 
the  provision  in  the  bill  of  lading  would  have  excused  him.     But  as 


LIMITATION    OF    LIABILITY.  507 

the  stipulation  in  the  bill  of  lading  was  one  which  the  Harter  Act 
prohibited,  it  is  only  necessary  to  refer  to  this  act  to  hold  the  com- 
pany chargeable  with  negligence.  Regard  may  doubtless  be  had  to 
the  custom  of  the  port  as  to  what  shall  be  termed  a  proper  delivery 
with  respect  to  the  time  and  manner  of  such  delivery,  but  a  failure  to 
deliver  at  all  was  negligence.  No  such  want  of  delivery  can  be  ex- 
cused under  the  terms  either  of  the  first  or  second  section  of  the 
Harter  Act.  Not  only  was  there  negligence  in  failing  to  examine  the 
ship's  papers  to  ascertain  what  goods  were  consigned  to  Savanilla,  but 
there  was  also  negligence  in  stowing  such  goods  under  that  portion  of 
the  cargo  destined  for  Carthagena,  and  thus  concealing  them  from 
observation.  If  these  goods  were  the  last  received  by  the  vessel  be- 
fore her  departure  from  New  York,  they  would  naturally  have  occupied 
a  position  which  would  have  called  attention  to  them  upon  arrival  at 
the  first  port  of  destination,  but  they  were  so  concealed  beneath  the 
goods  consigned  to  another  port  that  they  were  not  discovered  until 
after  the  vessel  had  left  Savanilla. 

The  words  "cannot  be  found"  would  seem  to  apply  to  a  case  where 
the  goods  had  been  misplaced,  and  an  effort  had  been  made  to  find 
them  which  had  proven  unsuccessful,  and  not  to  a  case  where  no  attempt 
whatever  was  made  to  deliver  them.  But  however  this  may  be,  we 
are  clearly  of  opinion  that  the  provisions  of  section  one  of  the  Harter 
Act  supersede  and  override  this  stipulation  in  the  bill  of  lading,  par- 
ticularly as  it  is  expressly  provided  that  the  agreement  was  "  made 
with  reference  to,  and  subject  to  the  provisions  of  the  United  States 
carriers'  act,  approved  February  13,  1893,"  (Harter  Act.)  The  first 
section  of  the  act  is  cited  above,  but  the  second  section  further  pro- 
vides "that  it  shall  not  be  lawful  for  any  vessel  transporting  mer- 
chandise or  property  from  or  between  ports  of  the  United  States  of 
America  and  foreign  ports,  her  owner,  master,  agent  or  manager,  to 
insert  in  any  bill  of  lading  or  shipping  document  any  covenant  or 
agreement  .  .  .  whereby  the  obligations  of  the  master,  officers,  agents 
or  servants  to  carefully  handle  and  stow  her  cargo,  and  to  care  for 
and  properly  deliver  the  same,  shall  in  anywise  be  lessened,  weakened 
or  avoided." 

It  is  to  be  noticed  that  by  the  first  section  the  carrier  shall  not  be 
"  relieved  from  liability  "  for  loss  or  damage  arising  from  negligence 
in  the  proper  stowage  or  proper  delivery  of  the  goods,  while  by  the 
second  section  the  carrier  shall  not  insert  any  covenant  or  agreement 
in  the  bill  of  lading  whereby  the  obligations  of  the  carrier  to  carefully 
stow  and  properly  deliver  the  cargo  shall  be  "  lessened,  weakened  or 
avoided."  These  two  sections,  in  their  general  purport,  so  far  as  re- 
spects the  care  and  delivery  of  the  cargo,  are  not  essentially  different, 
although  it  is  possible  that  a  somewhat  ampler  measure  of  liability 
was  intended  under  the  second  section,  which  denounces  any  cove- 
nant whereby  the  obligations  of  the  ship  to  properly  deliver  the  cargo 
shall  in  anywise  be  lessened,  weakened  or  avoided.     As  the  negli- 


508  CARRIERS   OF   GOODS. 

gence  of  the  respondent  in  this  connection  was  clearly  proven,  there 
can  be  no  doubt  of  its  liability  under  either  of  these  sections  of  the 
Harter  Act. 

2.  The  alleged  limitation  of  respondent's  liability  to  the  sum  of 
$100  per  package  depends  upon  that  clause  of  the  bill  of  lading  which 
declares  "  that  the  carrier  shall  not  be  liable  for  gold,  silver,  bullion, 
specie,  documents,  jewellery,  pictures,  embroideries,  works  of  art,  silks, 
furs,  china,  porcelain,  watches,  clocks  or  goods  of  any  description 
which  are  above  the  value  of  $100  per  package,  unless  bills  of  lading 
are  signed  therefor,  with  the  value  therein  expressed,  and  a  special 
agreement  is  made."  Respondent  insists  that  the  words  of  this  clause, 
"  which  are  above  the  value  of  $100  per  package,"  should  be  read  as 
limiting  its  liability  to  $100  per  package,  and  should  be  construed  as 
if  the  words  used  were  "beyond  the  sum  or  value  of  $100  per  pack- 
age." The  courts  below  agreed  in  putting  this  interpretation  upon  it. 
Acting  upon  this  view,  it  was  held  that  the  liability  of  the  respondent 
was  limited  to  $100  per  package,  following  in  this  particular  the 
rulings  of  this  court  in  Railroad  Company  v.  Fraloff,  100  U.  S.  24,  27 
[329],  and  Hart  v.  Pennsylvania  Railroad,  112  U.  S.  331,  and  the 
principle  announced  in  Magnin  v.  Dinsinore,  56  N".  Y.  168 ;  S.  C.  62 
N.  Y.  35 ;  70  N.  Y.  410 ;  Westcott  v.  Fargo,  61  N.  Y.  542,  and  Graves 
v.  Lake  Shore  &  Mich.  Southern  Railroad,  137  Mass.  33  [516].  In 
this  last  case  the  rule  obtaining  in  this  court  is  adopted  to  its  full 
extent  by  the  Supreme  Judicial  Court  of  Massachusetts.  In  these 
cases  it  was  held  to  be  competent  for  carriers  of  passengers  or  goods, 
by  specific  regulations  brought  distinctly  to  the  notice  of  the  passenger 
or  shipper,  to  agree  upon  the  valuation  of  the  property  carried,  with 
a  rate  of  freight  based  on  the  condition  that  the  carrier  assumes  lia- 
bility only  to  the  extent  of  the  agreed  valuation,  even  in  case  of  loss 
or  damage  by  the  negligence  of  the  carrier,  and  that  such  contracts 
will  be  upheld  as  a  lawful  method  of  securing  a  due  proportion  be- 
tween the  amount  for  which  the  carrier  may  be  responsible  and  the 
freight  he  receives,  and  of  protecting  himself  against  extravagant  and 
fanciful  valuations.  See  also  Ballou  v.  Earle,  17  R.  I.  441 ;  Richmond 
&  Danville  Railroad  v.  Payne,  86  Virginia,  481 ;  J.  J.  Douglas  Com- 
pany v.  Minnesota  Transportation  Co.,  62  Minnesota,  288. 

We  are,  however,  not  content  with  the  construction  put  upon  the 
contract  by  the  courts  below.  Whether  the  limitation  of  liability  to 
goods  above  the  value  of  $100  per  package  applies  to  "  gold,  silver, 
bullion,  specie,  documents,  jewellery,  pictures,  embroideries,  works  of 
art,  silks,  furs,  china,  porcelain,  watches,  clocks,"  as  well  as  to  goods 
of  other  descriptions,  may  admit  of  some  doubt,  in  view  of  the  fact 
that  by  Rev.  Stat.  sec.  4281  the  vessel  and  her  owners  would  not  be 
liable  for  such  articles  at  all,  unless  specifically  mentioned  at  a  valua- 
tion agreed  upon.  This  stipulation  in  the  bill  of  lading  having  been 
inserted  by  the  ship  owner  for  its  own  benefit,  could  scarcely  have 
been  intended  to  enlarge  its  statutory  liability,  and  the  more  reason- 


LIMITATION    OF    LIABILITY.  509 

able  interpretation  would  seem  to  be  that  the  company  was  not  in- 
tended to  be  held  liable  at  all  for  these  articles.  But  whether  this  be 
so  or  not,  the  stipulation  may  be  read  as  if  those  words  were  omitted, 
namely,  that  the  carrier  shall  not  be  liable  for  goods  of  any  descrip- 
tion "  which  are  above  the  value  of  S100  per  package."  The  plain 
and  unequivocal  meaning  of  these  words  is  that  the  carrier  shall  not 
be  liable  to  any  amount  for  goods  exceeding  in  value  8100  per  pack- 
age. It  is  true  that  contracts  for  the  carriage  of  goods  by  water,  as 
well  as  by  land,  frequently  contain  a  provision  limiting  the  liability 
of  the  carrier  to  a  certain  amount,  usually  $100  per  package,  and  it 
was  apparently  in  view  of  this  custom  that  the  courts  below  gave 
a  like  interpretation  to  the  words  of  this  stipulation.  But  this  cer- 
tainly does  violence  to  its  language.  If  it  had  been  intended  to  so 
limit  the  respondent's  liability,  it  would  have  been  easy  to  say  so,  and 
the  very  fact  that  different  language  was  used  from  that  ordinarily 
employed  indicates  a  desire  on  the  part  of  the  carrier  to  limit  his  lia- 
bility to  goods  which  are  of  less  value  than  $100  per  package. 

It  is  true  that  in  cases  of  ambiguity  in  contracts,  as  well  as  in 
statutes,  courts  will  lean  toward  the  presumed  intention  of  the  parties 
or  the  legislature,  and  will  so  construe  such  contract  or  statute  as  to 
effectuate  such  intention  ;  but  where  the  language  is  clear  and  explicit 
there  is  no  call  for  construction,  and  this  principle  does  not  apply. 
Parties  are  presumed  to  know  the  force  and  effect  of  the  language  in 
which  they  have  chosen  to  embody  their  contracts,  and  to  refuse  to 
give  effect  to  such  language  might  result  in  artfully  misleading  others 
who  had  relied  upon  the  words  being  used  in  their  ordinary  sense.  In 
construing  contracts  words  are  to  receive  their  plain  and  literal  mean- 
ing, even  though  the  intention  of  the  party  drawing  the  contract  may 
have  been  different  from  that  expressed.  A  party  to  a  contract  is  re- 
sponsible for  ambiguity  in  his  own  expressions,  and  has  no  right  to 
induce  another  to  contract  with  him  on  the  supposition  that  his  words 
mean  one  thing  while  he  hopes  the  court  will  adopt  a  construction  by 
which  they  would  mean  another  thing  more  to  his  advantage.  Clark 
on  Contracts,  p.  593. 

•  •••••■••••• 

In  this  case  the  contract  is  one  prepared  by  the  respondent  itself 
for  the  general  purposes  of  its  business.  With  every  opportunity  for 
a  choice  of  language,  it  used  a  form  of  expression  which  clearly 
indicated  a  desire  to  exempt  itself  altogether  from  liability  for  goods 
exceeding  $100  in  value  per  package,  and  it  has  no  right  to  complain 
if  the  courts  hold  it  to  have  intended  what  it  so  plainly  expressed.  If 
the  language  had  been  ambiguous  we  might  have  given  it  the  construc- 
tion contended  for,  which  probably  conforms  more  nearly  to  the  clause 
ordinarily  inserted  in  such  cases,  but  such  language  is  too  clear  to 
admit  of  a  doubt  of  the  real  meaning.  The  clause  in  question  seems 
to  have  been  taken  from  the  English  carriers'  act,  11  Geo.  IV,  and 


510  CARRIERS   OF    GOODS. 

1  Win.  IV,  c.  68,  which  received  a  construction  similar  to  that  we 
have  given  to  it  in  Morritt  v.  Northeastern  Railway  Co.,  1  Q.  B.  D. 
302. 

Under  this  interpretation  there  is  a  clear  attempt  on  the  part  of  the 
carrier  to  exonerate  itself  from  all  responsibility  for  goods  exceeding 
the  value  of  $100  per  package.  Such  exemption  is  not  only  pro- 
hibited by  the  Harter  Act,  but  is  held  to  be  invalid  in  a  series  of  cases 
in  this  court,  culminating  in  Chicago,  Milwaukee  &c.  Railway  v.  Solan, 
169  U.  S.  133,  135,  wherein  it  was  said  that  "  any  contract  by  which 
a  common  carrier  of  goods  or  passengers  undertakes  to  exempt  himself 
from  all  responsibility  for  loss  or  damage  arising  from  the  negligence 
of  himself  or  servants,  is  void  as  against  public  policy,  as-  attempting 
to  put  off  the  essential  duties  resting  upon  every  public  carrier  by 
virtue  of  his  employment,  and  as  tending  to  defeat  the  fundamental 
principle  upon  which  the  law  of  common  carriers  was  established." 
The  difficulty  is  not  removed  by  the  fact  that  the  carrier  may  render 
itself  liable  for  these  goods,  if  "bills  of  lading  are  signed  therefor, 
with  the  value  therein  expressed  and  a  special  agreement  is  made." 
This  would  enable  the  carrier  to  do,  as  was  done  in  this  case  —  give  a 
bill  of  lading  in  which  no  value  was  expressed,  under  which  it  would 
not  be  liable  at  all  for  the  safe  transportation  and  proper  delivery  of 
the  property.  This  would  be  in  direct  contravention  of  the  Harter  Act. 
Indeed,  we  understand  it  to  be  practically  conceded  that  under  the 
construction  we  have  given  to  this  clause  of  the  contract  the  exemp- 
tion would  be  unreasonable  and  invalid. 

Tlie  decree  of  the  District  Court  is  therefore  reversed,  and  the  case  re- 
manded to  that  court  with  directions  to  assess  the  value  of  the  libeUant's 
goods,  and  to  enter  a  decree  in  conformity  with  the  opinion  of  this 
court. 

Mr.  Justice  White  concurred  in  the  result. 

Mr.  Justice  Brewer  dissented. 


KNOTT  v.  BOTANY  MILLS. 
179  U.  S.  69 ;  21  S.  C.  Rep.  30.     1900. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

The  Botany  Worsted  Mills,  a  corporation  of  New  Jersey,  and  Win- 
ter and  Smillie,  a  firm  of  merchants  in  the  city  of  New  York,  respec- 
tive owners  of  two  separate  lots  of  bales  of  wool,  shipped  at  Buenos 
Ayres  for  New  York  on  board  the  steamship  Portuguese  Prince, 
severally  filed  libels  in  admiralty  in  2)ersonam  in  the  District  Court  of 


LIMITATION    OF    LIABILITY.  511 

the  United  States  for  the  Southern  District  of  New  York,  against 
James  Knott,  the  owner  of  the  vessel,  to  recover  for  damage  caused  to 
the  wool  by  contact  with  drainage  from  wet  sugar  which  also  formed 
part  of  her  cargo. 

The  Portuguese  Prince  was  a  British  vessel,  belonging  to  a  line 
trading  between  New  York  and  ports  in  the  River  Plata,  Brazil,  and 
the  West  Indies,  loading  and  discharging  cargo  and  having  a  resident 
agent  at  each  port.  The  bills  of  lading  of  the  wool,  signed  at  Buenos 
Ayres,  December  21, 1894,  gave  her  liberty  to  call  at  any  port  or  ports 
to  receive  and  discharge  cargo,  and  for  any  other  purpose  whatever; 
and  purported  to  exempt  the  carrier  from  liability  for  "  negligence  of 
masters  or  mariners;"  "sweating,  rust,  natural  decay,  leakage  or 
breakage,  and  all  damage  arising  from  the  goods  by  stowage,  or  con- 
tact with,  or  by  sweating,  leakage,  smell  or  evaporation  from  them  ;  " 
"  or  any  other  peril  of  the  seas,  rivers,  navigation,  or  of  land  transit 
of  whatsoever  nature  or  kind ;  and  whether  any  of  the  perils,  causes  or 
things  above  mentioned,  or  the  loss  or  injury  arising  therefrom,  be  oc- 
casioned by  the  wrongful  act,  default,  negligence,  or  error  in  judgment 
of  the  owners,  masters,  officers,  mariners,  crew,  stevedores,  engineers 
and  others  persons  whomsoever  in  the  service  of  the  ship,  whether 
employed  on  the  said  steamer  or  otherwise,  and  whether  before,  or 
after,  or  during  the  voyage,  or  for  whose  acts  the  shipowner  would 
otherwise  be  liable  ;  or  by  unseaworthiness  of  the  ship  at  the  beginning, 
or  at  any  period  of  the  voyage,  provided  all  reasonable  means  have 
been  taken  to  provide  against  •such  unseaworthiness."  Each  bill  of 
lading  also  contained  the  following  clause :  "  This  contract  shall  be 
governed  by  the  law  of  the  flag  of  the  ship  carrying  the  goods,  except 
that  general  average  shall  be  adjusted  according  to  York- Antwerp 
Rules,  1890." 

The  facts  of  the  cases  are  substantially  undisputed.  The  bales  of 
wool  of  the  libellants  were  taken  on  board  at  Buenos  Ayres,  Decem- 
ber 21-24, 1894,  and  were  stowed  on  end,  with  proper  dunnage,  between 
decks  near  the  bow,  and  forward  of  a  temporary  wooden  bulkhead, 
which  was  not  tight.  The  vessel,  after  touching  at  other  ports,  touched 
on  February  19,  1895,  at  Pernambuco,  and  there  took  on  board  two 
hundred  tons  of  wet  sugar,  (from  which  there  is  always  drainage,)  which 
was  stowed,  with  proper  dunnage,  between  decks,  aft  of  the  wooden 
bulkhead.  At  that  time  the  vessel  was  trimmed  by  the  stern,  and  all 
drainage  from  the  sugar,  flowing  aft,  was  carried  off  by  the  scuppers, 
which  were  sufficient  for  the  purpose  when  the  vessel  was  down  by  the 
stern,  or  on  even  keel  in  calm  weather.  There  was  no  provision  for 
carrying  off  the  drainage  in  case  it  ran  forward.  She  discharged  other 
cargo  at  Para;  and  on  March  10, 'when  she  left  that  port,  she  was  two 
feet  down  by  the  head.  She  continued  in.  this  trim  until  she  took  on 
additional  cargo  at  Port  of  Spain,  where  the  error  in  trim  was  corrected, 
and  she  left  that  port  on  March  18,  loaded  one  foot  by  the  stern.  It 
was  agreed  by  the  parties  that  there  was  no  damage  to  the  wool  by 


512  CARRIERS    OF    GOODS. 

sugar  drainage  until  she  was  trimmed  by  the  head  at  Para ;  that  the 
wool  was  damaged,  by  sugar  drainage  finding  its  way  through  the  bulk- 
head and  reaching  the  wool,  at  Para,  or  between  Para  and  Port  of 
Spain,  and  not  afterwards;  that,  after  she  was  again  trimmed  by  the 
stern  at  Port  of  Spain,  none  of  the  drainage  from  the  sugar  found 
its  way  forward;    and  that  the  court  might  draw  inferences. 

The  District  Court  entered  a  decree  for  the  libellants.  76  Fed. 
Rep.  582.  That  decree  was  affirmed  by  the  Circuit  Court  of  Appeals. 
51  U.  S.  App.  467.  The  appellant  then  obtained  a  writ  of  certiorari 
from  this  court.     168  U.  S.  711. 

Before  the  act  of  Congress  of  February  13,  1893,  c.  105,  (27  Stat. 
445,)  known  as  the  Harter  Act,  it  was  the  settled  law  of  this  country,, 
as  declared  by  this  court,  that  the  common  carriers,  by  land  or  sea,  could 
not  by  any  form  of  contract  exempt  themselves  from  responsibility  for 
loss  or  damage  arising  from  negligence  of  their  servants,  and  that  any 
stipulation  for  such  exemption  was  void  as  against  public  policy;  al- 
though the  courts  in  England  and  in  some  of  the  States  held  otherwise. 
Railroad  Co.  v.  Lockwood,  17  Wall.  357 ;  Liverpool  Steam  Co.  v. 
Phoenix  Ins.  Co.,  129  U.  S.  397 ;  Compania  La  Flecha  v.  Brauer,  168 
U.  S.  104, 117, 118.  In  many  lower  courts  of  the  United  States  it  has 
been  held,  independently  of  the  Harter  Act,  that  a  stipulation  that  a 
contract  should  be  governed  by  the  law  of  England  in  this  respect 
was  void,  and  could  not  be  enforced  in  a  court  of  the  United  States ; 
but  the  point  has  not  been  decided  by  this  court.  Nor  is  it  necessary 
for  us  now  to  decide  that  point,  because  these  bills  of  lading  were 
issued  since  the  Harter  Act,  and  we  are  of  the  opinion  that  the  case 
is  governed  by  the  express  provisions  of  that  act. 

Upon  the  facts  of  this  case,  there  can  be  no  doubt  that  the  ship  was 
seaworthy,  and  that  the  damage  to  the  wool  was  caused  by  drainage 
from  the  wet  sugar  through  negligence  of  those  in  charge  of  the  ship 
and  cargo.  The  questions  upon  which  the  decision  of  the  case  turns 
are  two  : 

First.  Whether  this  damage  to  the  wool  was  "loss  or  damage 
arising  from  negligence,  fault  or  failure  in  proper  loading,  stowage, 
custody,  care  or  proper  delivery"  of  cargo,  within  the  first  section  of 
the  Harter  Act ;  or  was  "  damage  or  loss  resulting  from  faults  or 
errors  in  navigation  or  in  the  management  of  said  vessel,"  within  the 
third  section  of  that  act  ? 

Second.  Do  the  words,  in  the  first  section,  "  any  vessel  transporting 
merchandise  or  property  from  or  between  ports  of  the  United  States 
and  foreign  ports,"  include  a  foreign  vessel  transporting  merchandise 
from  a  foreign  port  to  a  port  of  the  United  States  ? 

Section  1  of  that  act  is  as  follows :  "  It  shall  not  be  lawful  for  the 
manager,  agent,  master  or  owner  of  any  vessel  transporting  merchan- 
dise or  property  from  or  between  ports  of  the  United  States  and  for- 
eign ports  to  insert  in  any  bill  of  lading  or  shipping  document  any 
clause,  covenant  or  agreement  whereby  it,  he  or  they  shall  be  relieved 


LIMITATION   OF    LIABILITY.  513 

from  liability  for  loss  or  damage  arising  from  negligence,  fault  or 
failure  in  proper  loading,  stowage,  custody,  care  or  proper  delivery  of 
any  and  all  lawful  merchandise  or  property  committed  to  its  or  their 
charge.  Any  and  all  words  or  clauses  of  such  import,  inserted  in 
bills  of  lading  or  shipping  receipts,  shall  be  null  and  void  and  of  no 
effect."  This  section,  in  all  cases  coming  within  its  provisions  over- 
rides and  nullifies  any  such  stipulations  in  a  bill  of  lading.  Calderon 
v.  Atlas  Steamship  Co.,  170  U.  S.  272  [504]. 

By  section  3,  on  the  other  hand,  "  if  the  owner  of  any  vessel  trans- 
porting merchandise  or  property  to  or  from  any  port  in  the  United 
States  "  shall  exercise  due  diligence  to  make  her  in  all  respects  sea- 
worthy and  properly  manned,  equipped  and  supplied,  neither  the 
vessel  nor  her  owner,  agent  or  charterer  "  shall  become  or  be  held 
responsible  for  damage  or  loss  resulting  from  faults  or  errors  in  navi- 
gation or  in  the  management  of  said  vessel,"  etc.  This  section  does 
but  relax  the  warranty  of  seaworthiness  in  the  particulars  specified  in 
the  section.  The  Carib  Prince,  170  U.  S.  655 ;  The  Irrawaddy,  171 
U.  S.  187. 

We  fully  concur  with  the  courts  below  that  the  damage  in  question 
arose  from  negligence  in  loading  or  stowage  of  the  cargo,  and  not 
from  fault  or  error  in  the  navigation  or  management  of  the  ship  — 
for  the  reasons  stated  by  the  District  Judge,  and  approved  by  the 
Circuit  Court  of  Appeals,  as  follows : 

"  The  primary  cause  of  the  damage  was  negligence  and  inattention 
in  the  loading  or  stowage  of  the  cargo,  either  regarded  as  a  whole,  or 
as  respects  the  juxtaposition  of  wet  sugar  and  wool  bales  placed  far 
forward.  The  wool  should  not  have  been  stowed  forward  of  the  wet 
sugar,  unless  care  was  taken  in  the  other  loading,  and  in  all  subse- 
quent changes  in  the  loading,  to  see  that  the  ship  should  not  get  down 
by  the  head.  There  was  no  fault  or  defect  in  the  vessel  herself. 
She  was  constructed  in  the  usual  way,  and  was  sufficient.  But  on 
sailing  from  Para  she  was  a  little  down  by  the  head,  through  inatten- 
tion, during  the  changes  in  the  loading,  to  the  effect  these  changes 
made  in  the  trim  of  the  ship  and  in  the  flow  of  the  sugar  drainage. 
She  was  not  down  by  the  head  more  than  frequently  happens.  It  in 
no  way  affected  her  sea-going  qualities ;  nor  did  the  vessel  herself 
cause  any  damage  to  the  wool.  The  damage  was  caused  by  the  drain- 
age of  the  wet  sugar  alone.  So  that  no  question  of  the  unseaworthi- 
ness of  the  ship  arises.  The  ship  herself  was  as  seaworthy  when  she 
left  Para,  as  when  she  sailed  from  Pernambuco.  The  negligence  con- 
sisted in  stowing  the  wool  far  forward,  without  taking  care  subse- 
quently that  no  changes  of  loading  should  bring  the  ship  down  by  the 
head.  I  must,  therefore,  regard  the  question  as  solely  a  question  of 
negligence  in  the  stowage  and  disposition  of  cargo,  and  of  damage 
consequent  thereon,  though  brought  about  by  the  effect  of  these  negli- 
gent changes  in  loading  on  the  trim  of  the  ship."  "The  change  of 
trim  was  merely  incidental,  the  mere  negligent  result  of  the  changes 


514  CARRIERS   OF    GOODS. 

in  the  loading,  no  attention  being  given  to  the  effect  on  the  ship's 
trim,  or  on  the  sugar  drainage."  "  Since  this  damage  arose  through 
negligence  in  the  particular  mode  of  stowing  and  changing  the  load- 
ing of  cargo,  as  the  primary  cause,  though  that  cause  became  opera- 
tive through  its  effect  on  the  trim  of  the  ship,  this  negligence  in 
loading  falls  within  the  first  section.  The  ship  and  owner  must,  there- 
fore, answer  for  this  damage,  and  the  third  section  is  inapplicable." 
76  Fed.  Rep.  583-585 ;  51  U.  S.  App.  473. 

In  The  Glenochil  (1896)  Prob.  10,  on  which  the  appellant  much 
relied,  the  negligence  which  was  held  to  be  within  the  third  section 
of  the  Harter  Act  was,  as  said  by  Sir  Francis  Jeune,  "  a  mismanage- 
ment of  part  of  the  appliances  of  the  ship,  and  mismanagement  which 
arose  because  it  was  intended  to  do  something  for  the  benefit  of  the 
ship,  namely,  to  stiffen  her,  the  necessity  for  stiffening  arising  because 
part  of  her  cargo  had  been  taken  out  of  her."  He  pointed  out  that  the 
first  and  third  sections  of  the  act  might  be  reconciled  by  the  construc- 
tion, "  first,  that  the  act  prevents  exemptions  in  the  case  of  direct  want 
of  care  in  respect  of  the  cargo,  and  secondly,  the  exemption  permitted 
is  in  respect  of  a  fault  primarily  connected  with  the  navigation  or 
management  of  the  vessel  and  not  with  the  cargo."  And  he  added 
that  the  court  had  had  the  same  sort  of  question  before  it  in  the  case 
of  The  Ferro,  (1893)  Prob.  38,  and  he  adhered  to  what  he  there  said, 
"  that  mere  stowage  is  an  altogether  different  matter  from  the  manage- 
ment of  the  vessel."  And  Sir  Gorell  Barnes  delivered  a  concurring 
opinion  to  the  same  effect. 

The  like  distinction  was  recognized  by  this  court  in  the  recent  case 
of  The  Silvia,  171  U.  S.  462,  466. 

The  remaining  question  is  whether  the  first  section  of  the  Harter 
Act  applies  to  a  foreign  vessel  on  a  voyage  from  a  foreign  port  to  a 
port  in  the  United  States. 

The  power  of  Congress  to  include  such  cases  in  this  enactment  can- 
not be  denied  in  a  court  of  the  United  States.  The  point  in  contro- 
versy is  whether,  upon  the  proper  construction  of  the  act,  Congress 
has  done  so.  That  the  third  section  does  extend  to  such  a  vessel  on 
such  a  voyage  has  been  already  decided  by  this  court.  The  Silvia, 
above  cited ;  The  Chattahoochee,  173  U.  S.  540,  550,  551. 

It  is  true  that  the  words  of  that  section  are  not  exactly  the  same 
in  this  respect,  being  "any  vessel  transporting  merchandise  or  property 
to  or  from  any  port  in  the  United  States,"  whereas  the  corresponding 
words  in  the  first  section  are  "  any  vessel  transporting  merchandise  or 
property  from  or  between  ports  of  the  United  States  and  foreign 
ports." 

But  the  two  phrases,  as  applied  to  the  subject-matter,  are  precisely 
equivalent,  and  are  both  equally  applicable  to  a  foreign  voyage  that 
ends,  and  to  one  that  begins,  in  this  country.  In  their  usual  and 
natural  meaning,  the  words  "from  any  port  in  the  United  States" 
include  all  voyages,  whether  domestic  or  foreign,  which  begin  in  this 


LIMITATION    OF    LIABILITY.  515 

country ;  the  words  "  to  any  port  in  the  United  States  "  include  all 
voyages,  whether  domestic  or  foreign,  which  end  in  this  country  ;  and 
the  words  "  between  ports  of  the  United  States  and  foreign  ports  "  in- 
clude all  foreign  voyages  which  either  begin  or  end  here.  The  words 
of  the  third  section,  "  to  or  from  any  port  in  the  United  States " 
express  in  the  simplest  and  most  direct  form  the  intention  to  include 
voyages  hither  as  well  as  voyages  hence.  And  we  find  insuperable 
difficulty  in  the  way  of  giving  a  different  meaning  to  the  words  of 
the  first  section,  "froin  or  between  ports  of  the  United  States  and 
foreign  ports."  The  words  "  from  ports  of  the  United  States  "  would 
of  themselves  be  sufficient  to  cover  all  voyages  which  begin  here, 
whether  they  end  in  a  domestic  or  in  a  foreign  port ;  and  the  words 
" between  ports  of  the  United  States  and  foreign  ports"  no  more 
appropriately  designate  foreign  voyages  beginning  here,  than  such 
voyages  beginning  abroad.  The  phrase  of  the  first  section  is  slightly 
elliptical ;  but  it  appears  to  us  to  have  exactly  the  same  meaning  as  if 
the  ellipsis  had  been  supplied  by  repeating  the  words  "  ports  of  the 
United  States,"  so  as  to  read  "  any  vessel  transporting  merchandise  or 
property  from  ports  of  the  United  States,  or  between  ports  of  the 
United  States  and  foreign  ports."  And  no  reason  has  been  suggested 
why  a  foreign  vessel  should  come  within  the  benefit  of  the  third  sec- 
tion relaxing  the  warranty  of  seaworthiness,  and  not  come  within  the 
prohibition  of  the  first  section  affirming  the  unlawfulness  of  stipula- 
tions against  liability  for  negligence. 

Attention  was  called  at  the  bar  to  the  fact  that  in  the  act,  as 
originally  passed  by  the  House  of  Eepresentatives,  the  words  of  the 
third  section  were  "  any  vessel  transporting  merchandise  or  property 
between  ports  in  the  United  States  of  America  and  foreign  ports," 
and  that  for  those  words  the  Senate  substituted  the  words  as  they  now 
stand  in  the  act ;  and  it  was  argued  that  the  change  in  this  section, 
leaving  unchanged  the  corresponding  clauses  in  the  first  and  other 
sections  of  the  act,  showed  that  those  sections  were  not  supposed  or 
intended  to  include  vessels  bound  from  foreign  ports  to  ports  of  the 
United  States.  But  the  argument  fails  to  notice  that  the  third  section, 
as  it  originally  stood,  did  not  contain  the  words  "  from  or,"  but  covered 
only  voyages  "  between  ports  in  the  United  States  and  foreign  ports ; " 
and  the  more  reasonable  inference  is  that  the  change  was  made  for  the 
purpose  of  bringing  domestic  voyages  within  this  section.  See  24 
Congr.  Rec.  147-149,  173,  1181,  1291,  1292. 

Attention  was  also  called  to  the  fourth  section  of  the  act,  which 
makes  it  the  duty  of  the  owner,  master  or  agent  of  "  any  vessel  trans- 
porting merchandise  or  property  from  or  between  ports  of  the  United 
States  "  to  issue  to  shippers  bills  of  lading  containing  a  certain  descrip- 
tion of  the  goods ;  and  to  the  fifth  section,  which  provides  that,  "  for 
a  violation  of  any  of  the  provisions  of  this  act,  the  agent,  owner  or 
master  of  the  vessel  guilty  of  such  violation,  and  who  refuses  to  issue 
on  demand  the  bill  of  lading  herein  provided  for,  shall  be  liable  to  a 


516  CARRIERS    OF    GOODS. 

fine  not  exceeding  two  thousand  dollars,"  and  the  amount  of  the  fine 
and  costs  shall  be  a  lien  upon  the  vessel,  and  she  may  be  libelled 
therefor  in  any  District  Court  of  the  United  States  within  whose 
jurisdiction  she  may  be  found.  It  was  argued  that  this  provision 
imposing  a  penalty  would  cover  a  refusal  to  give  a  bill  of  lading  with- 
out the  clauses  prohibited  by  the  first  section ;  and  could  not  extend 
to  acts  done  in  a  foreign  port  out  of  the  jurisdiction  of  the  United 
States.  But  whether  that  be  so  or  not,  (which  we  are  not  required  in 
this  case  to  decide,)  it  affords  no  sufficient  reason  for  refusing  to  give 
full  effect,  according  to  what  appears  to  us  to  be  their  manifest  mean- 
ing, to  the  positive  words  of  the  first  section,  which  enact,  as  to  "  any 
vessel "  transporting  merchandise  or  property  "  between  ports  of  the 
United  States  and  foreign  ports,"  that  all  stipulations  relieving  the 
carrier  from  liability  for  loss  or  damage  arising  from  negligence  in 
the  loading  or  stowage  of  the  cargo  shall  not  only  be  unlawful,  but 
"  shall  be  null  and  void  and  of  no  effect." 

This  express  provision  of  the  act  of  Congress  overrides  and  nullifies 
the  stipulations  of  the  bill  of  lading  that  the  carrier  shall  be  exempt 
from  liability  for  such  negligence,  and  that  the  contract  shall  be 
governed  by  the  law  of  the  ship's  flag. 

Decree  affirmed. 


c.    Agreed  Valuation. 

GRAVES  v.   LAKE   SHORE,    etc.    R.   CO. 
137  Mass.  33.     1884. 

Morton,  C.  J.  The  defendant,  as  a  common  carrier,  received  at 
Peoria,  Illinois,  seventy -five  barrels  of  high  wines,  and  agreed  to 
deliver  them  to  the  plaintiffs  at  Boston,  in  this  Commonwealth. 
The  bill  of  lading  contained  the  stipulation  that  the  goods  were 
"shipped  at  an  agreed  valuation  of  $20  per  bbl.,  owner's  risk  of 
leakage."  It  also  contained  the  agreement  that,  "in  the  event  of ' 
the  loss  of  any  property  for  which  responsibility  attaches  under  this 
bill  of  lading  to  the  carriers,  the  value  or  cost  of  the  same  at  the 
time  and  point  of  shipment  is  to  govern  the  settlement,  except  the 
value  of  the  articles  has  been  agreed  upon  with  the  shipper,  or  is 
determined  by  the  classification  upon  which  the  rates  are  based." 

The  defendant  had  no  knowledge  of  the  value  of  the  goods  except 
that  furnished  by  the  statement  of  the  shippers,  and  the  charge  for 
transportation  was  based  upon  this  statement  and  valuation.     The 


LIMITATION    OF   LIABILITY.  517 

goods  were  destroyed  during  the  transit  by  a  collision  of  two  trains, 
occasioned  by  the  negligence  of  the  servants  of  the  defendant.  The 
only  question  presented  is  whether  the  plaintiffs  can  recover  any 
more  than  the  agreed  valuation  of  the  goods. 

The  question  whether  a  carrier  can,  by  a  special  contract,  exempt 
himself  from  liability  for  a  loss  arising  from  the  negligence  of  him- 
self or  his  servants,  is  one  which  has  been  much  discussed,  and 
upon  which  the  adjudications  are  conflicting.  If  we  adopt  the 
general  rule,  that  a  carrier  cannot  thus  exempt  himself  from  respon- 
sibility, we  are  of  the  opinion  that  it  does  not  cover  the  case  before 
us,  which  must  be  governed  by  other  considerations.  The  defend- 
ant has  not  attempted  to  exempt  itself  from  liability  for  the  negli- 
gence of  its  servants.  It  has  made  no  contract  for  that  purpose, 
but  admits  its  responsibility;  its  claim  is,  that  the  plaintiffs, 
having  represented  and  agreed  that  the  goods  are  of  a  specified 
value,  and  having  thus  obtained  the  benefit  of  a  diminished  rate 
of  transportation,  are  now  estopped  to  claim,  in  contradiction  of 
their  representation  and  agreement,  that  the  goods  are  of  a  greater 
value. 

It  is  the  right  of  the  carrier  to  require  good  faith  on  the  part  of 
those  persons  who  deliver  goods  to  be  carried,  or  enter  into  con- 
tracts with  him.  The  care  to  be  exercised  in  transporting  property, 
and  the  reasonable  compensation  for  its  carriage,  depend  largely  on 
its  nature  and  value,  and  such  persons  are  bound  to  use  no  fraud  or 
deception  which  would  mislead  him  as  to  the  extent  of  the  duties 
or  the  risks  which  he  assumes.  It  is  just  and  reasonable  that 
a  carrier  should  base  his  rate  of  compensation,  to  some  extent,  upon 
the  value  of  the  goods  carried;  this  measures  his  risks,  and  is  an 
important  element  in  fixing  his  compensation.  If  a  person  volun- 
tarily represents  and  agrees  that  the  goods  delivered  to  a  carrier  are 
of  a  certain  value,  and  the  carrier  is  thereby  induced  to  grant  him 
a  reduced  rate  of  compensation  for  the  carriage,  such  person  ought 
to  be  barred  by  his  representation  and  agreement.  Otherwise,  he 
imposes  upon  the  carrier  the  obligations  of  a  contract  different  from 
that  into  which  he  has  entered.  Dunlap  v.  International  Steam- 
boat Co.,  98  Mass.  371;  Judson  v.  Western  Railroad,  6  Allen, 
486  [477] . 

The  plaintiffs  admit  that  their  valuation  of  the  goods  would  be 
conclusive  against  them  in  case  of  a  loss  from  any  other  cause  than 
the  negligence  of  the  carrier  or  its  servants ;  but  contend  that  the 
contract  does  not  fairly  import  a  stipulation  of  exemption  from 
responsibility  for  such  negligence.  We  cannot  see  the  justice  of 
this  distinction.  Looking  at  the  matter  practically,  everybody 
knows  that  the  charges  of  a  carrier  must  be  fixed  with  reference  to 
all  the  risks  of  the  carriage,  including  the  risk  of  loss  from  the 
negligence  of  servants.  In  the  course  of  time,  such  negligence  is 
inevitable,  and  the  business  of  a  carrier  could  not  be  carried  on  unless 


518  CARRIERS    OF    GOODS. 

lie  includes  this  risk  in  fixing  his  rates  of  compensation.  When  the 
parties  in  this  case  made  their  contract,  it  is  fair  to  assume  that 
both  had  in  mind  all  the  usual  risks  of  the  carriage.  It  savors  of 
refinement  to  suppose  that  they  understood  that  the  valuation  of  the 
goods  was  to  be  deemed  to  be  fixed  if  a  loss  occurred  from  some 
causes,  but  not  fixed  if  it  occurred  from  the  negligence  of  the  ser- 
vants of  the  carrier.  Such  does  not  seem  to  us  to  be  the  fair  con* 
struction  of  the  contract. 

The  plaintiffs  voluntarily  entered  into  the  contract  with  the 
defendant;  no  advantage  was  taken  of  them;  they  deliberately 
represented  the  value  of  the  goods  to  be  $20  per  barrel.  The  com- 
pensation for  carriage  was  fixed  upon  this  value;  the  defendant  is 
injured  and  the  plaintiffs  are  benefited  by  this  valuation,  if  it  can 
now  be  denied.  We  are  of  opinion  that  the  plaintiffs  are  estopped 
to  show  that  it  was  of  greater  value  than  that  represented.  The 
plaintiffs  cannot  recover  a  larger  sum  without  violating  their  own 
agreement.  Although  one  of  the  indirect  effects  of  such  a  contract 
is  to  limit  the  extent  of  the  responsibility  of  the  carrier  for  the 
negligence  of  his  servants,  this  was  not  the  purpose  of  the  contract. 
We  cannot  see  that  any  considerations  of  a  sound  public  policy 
require  that  such  contracts  should  be  held  invalid,  or  that  a  person, 
who  in  such  contract  fixes  a  value  upon  his  goods  which  he  intrusts 
to  the  carrier,  should  not  be  bound  by  his  valuation.  M'Cance  v. 
London  &  North  Western  Railway,  7  H.  &  N.  437;  s.  c.  3  H.  &  C. 
343;  Railroad  v.  Fraloff,  100  U.  S.  24  [329],  Muser  v.  Holland,  17 
Blatchf.  C.  C.  412;  s.  c.  1  Fed.  Rep.  382;  Hart  v.  Pennsylvania 
Railroad,  2  McCrary,  333;  s.  c.  7  Fed.  Rep.  630;  Magnin  v.  Dins- 
more,  70  N.  Y.  410." 

We  are  therefore  of  opinion,  upon  the  facts  of  this  case,  that  it 
was  not  competent  for  the  plaintiffs  to  show  that  the  value  of  the 
goods  lost  was  greater  than  $20  per  barrel.1 

Judgment  affirmed. 

1  Ace.  :  Hart  v.  Penn'a.  R.  Co.,  112  U.  S.  331  ;  Ballou  v.  Earle,  17  R.  I.  441. 

With  great  deference  for  those  who  may  differ  with  us,  we  think  it  entirely- 
illogical  and  unreasonable  to  say  that  the  carrier  may  not  absolve  itself  from  liability 
for  the  whole  value  of  property  lost  or  destroyed  through  its  negligence,  but  that 
it  may  absolve  itself  from  responsibility  for  one-half,  three-fourths,  seven-eighths, 
nine-tenths,  or  ninety-hundredths  of  the  loss  so  occasioned.  With  great  unanimity 
the  authorities  say  it  cannot  do  the  former.  If  allowed  to  do  the  latter,  it  may  thereby 
substantially  evade  and  nullify  the  law  which  says  it  shall  not  do  the  former,  and  in 
that  way  do  indirectly  what  it  is  forbidden  to  do  directly.  We  hold  that  it  can  do 
neither.  The  requirement  of  the  law  has  ever  been,  and  is  now,  that  the  common 
carrier  shall  be  diligent  and  careful  in  the  transportation  of  its  freight,  and  public 
policy  forbids  that  it  shall  throw  off  that  obligation,  whether  by  stipulation  for 
exemption  in  whole  or  in  part  from  the  consequences  of  its  negligent  acts.  This  view 
is  sustained  by  sound  reason,  and  also  by  the  weight  of  authority.  Coward  v.  Rail- 
road Company,  16  Lea,  225  ;  Moulton  v.  St.  P.,  M.  and  M.  Railway  Company,  31 
Minn.  85;  Railroad  Company  v.  Simpson,  30  Kan.  615  ;  Railroad  Company  v.  Abies, 
liO  Miss.  1017  ;  U.  S.  Express  Company  v.  Blackman,  28  Ohio  St.  144;   Black  v.  G. 


LIMITATION    OF   LIABILITY.  519 

McFADDEN  v.   MISSOURI  PACIFIC   R.    CO. 
92  Mo.  343.     1887. 


Ray,  J 


But  the  stipulation  in  the  contract  of  shipment ,  most  relied  on  for 
a  reversal  of  the  judgment,  is  the  one  declaring  the  company  should 
not  be  liable  for  more  than  one  hundred  dollars  per  head  for  the 
mules.  Such  a  stipulation,  it  is  claimed,  is  valid  and  binding,  and 
does  not  contravene  the  rule  which  forbids  the  carrier  to  stipulate 
against  his  own  negligence.  Numerous  decisions  sustain  such  stipu- 
lations, when  fairly  made,  and  when  the  parties  agree  on  a  fixed 
valuation  of  the  property,  and  a  special  and  reduced  rate  of  freight 
is  given  and  received,  based  upon  the  condition  that  the  carrier 
assumes  liability  only  to  the  extent  of  the  agreed  value  of  the  prop- 
erty.    Hart  v.  Railroad,  112  U.  S.  331,  and  cases  cited. 

Other  decisions  deny  the  validity  of  such  provisions,  and  hold 
them  void,  as  releasing  the  carrier  from  the  full  and  proper  liability 
for  the  consequences  of  his  negligence.  Black  v.  Trans.  Co.,  55 
Wis.  319;  Moulton  v.  Railroad,  31  Minn.  85;  U.  S.  Express  Co.  v. 
Backman,  28  Ohio  St.  144.  Hutchinson  on  Carriers  says,  in  sub- 
stance, that  the  cases  cited  by  him  as  recognizing  the  right  of  the 
carrier  to  thus  limit  the  liability  as  to  value  occur  in  States  in  which 
the  law  permits  the  carrier,  by  special  and  express  contract,  to 
relieve  himself  of  the  consequences  of  his  negligence  in  the  carriage 
of  goods,  and  that  these  cases  must  not  be  considered  controlling 
authority  in  those  States  in  which  such  claim  to  exemption  is  not 
permitted  to  be  made.     Sees.  247,   250. 

But,  even  under  the  rule  declared  in  the  former  class  of  decisions, 
these  provisions,  thus  employed  and  resorted  to  by  common  carriers 
to  restrict  their  liability,  are  to  be  tested  by  their  fairness,  justice, 
and  reasonableness.  We  will  consider  the  case  before  us  briefly 
under  this  view.  The  answer  charges  that  defendant  agreed  to 
transport  the  mules  for  plaintiff,  between  said  points,  at  the  rate  of 

T.  Company,  55  Wis.  319  ;  A.  G.  S.  Railroad  v.  Little,  71  Ala.  Oil.  See  also 
Rosen  field  v.  Railway  Company,  103  Ind.  121  ;  M.  P.  Railroad  Company!'.  Fagan,  35 
Am.  and  Eng.  Railroad  Cases,  666  ;  97  111.  525  ;    S.  C.  34  Am.  R.  197. 

The  rule  is  the  same  now,  except  that  in  this  day  of  special  contracts  it  has  bet  n 
relaxed  so  that  the  carrier  may  exonerate  itself  from  responsibility  by  either  showing 

that  the  case  falls  within  one  of  the  exceptions  of  the  common  law  or  within  oi f 

the  stipulations  of  the  special  contract.     2  Greenlenf  Evi.,  sec.  219  ;  52  Ala.  606  ; 
71  Ala.  611  ;    7  Yer.   340  ;    8  Hum.  498  ;   9  Bax.  188  ;   2   Lea,   296  ;   2  Pickle, 
63  Pa.  St.  14;    36  Minn.  539  ;   s.  c.  1  Am.  St.  R.  692  ;    60  Miss.   1017  ;    2S  Ohio  St. 
144  ;  55  Wis.  319  ;  Lawson  on  Con.  of  Car.,  sees.  245,  246,  247,  and  248  ;  Hutchin- 
son on  Car.  sec.  764  ;   Schouler  on  Bail,  and  Car.,  sec.  439.         .... 
Caldwell,  J.,  in  Railway  Co.  v.  Wynn,  88  Tenn.  320.     1889. 


520  CARRIERS   OF   GOODS. 

thirty-one  dollars  per  car,  which  was  charged  to  be  a  special  and 
reduced  rate,  lower  than  the  regular  rate.  The  written  contract, 
read  in  evidence,  recited  that  the  said  rate  was  a  reduced  rate,  made 
in  consideration  of  agreement,  etc.    ...... 

The  reduced  rate,  if  such  it  was,  was  the  consideration  for  the 
exemption  from  liability  beyond  the  one  hundred  dollars,  even  in 
case  of  injury  and  loss  from  defendant's  negligence,  and  parol  evi- 
dence in  that  behalf  is,  we  think,  competent  and  admissible  for  the 
purpose  indicated.  The  consideration  clause  in  bills  of  lading,  con- 
tracts, deeds,  and  other  instruments,  ordinarily,  has  only  the  force 
and  effect  of  a  receipt,  and  is  open  to  explanation  and  contradiction 
by  parol  evidence.  Hutchinson  on  Carriers,  sees.  122,  123;  Foutaine 
v.  Boatman's  Sav.  Inst.,  57  Mo.  552;  Hollocher  v.  Hollocher,  62 
Mo.  267;  Edwards  v.  Smith,  63  Mo.  119. 

If,  in  the  one  case,  it  is  competent  for  the  carrier  to  show  that 
the  real  value  of  the  property  was  concealed,  and  the  lower  rate  thus 
secured  by  the  fraud  or  deceit  of  the  shipper,  why  may  not  the 
shipper  be  permitted  to  show  that  the  alleged  reduced  rate,  in  con- 
sideration of  which  he  surrendered  obligation  imposed  by  law  upon 
the  carrier,  as  an  insurer  of  the  property,  was  false  and  in  fact  no 
reduced  rate  at  all?  It  may  be  that  plaintiff  was  not  deceived  by  it, 
at  the  time,  as  he  did  not  ask  for,  or  suppose  he  was  getting  a  reduced 
rate,  but  if  the  pretended  lower  rate  was  the  usual  rate,  and  known 
to  be  such  to  both  parties,  it  would  work  a  fraud  upon  the  rights  of 
plaintiff,  under  the  law,  if  the  defendant  were  permitted  to  treat  it 
as  a  lower  rate,  and  to  thus  deprive  plaintiff  of  important  rights, 
and  thus  secure  release  of  part  of  its  liability,  by  reason  thereof. 


ADAMS   EXPRESS   COMPANY  v.  CRONINGER. 
226  U.  S.  491 ;  33  S.  C  Rep.  148.     1913. 

This  was  an  action  in  the  Circuit  Court  of  Kenton  County,  Ken- 
tucky, against  the  Express  Company  to  recover  the  full  market 
value  of  a  small  package  containing  a  diamond  ring  which  was 
delivered  by  the  plaintiff  below  to  the  Express  Company  at  its 
office  in  Cincinnati,  Ohio,  consigned  to  J.  W.  Clendenning  at 
Augusta,  Georgia.     The  package  was  never  delivered. 

The  Express  Company  made  defense  by  answer.  The  plaintiff 
demurred  to  the  answer  as  not  containing  a  defense,  which  demurrer 
was  sustained.  The  company  declined  to  further  plead,  whereupon 
the  Circuit  Court  gave  judgment  for  the  sum  of  $137.52,  being  the 


LIMITATION    OF    LIABILITY.  521 

full  value  of  the  ring  and  interest.  A  writ  of  error  was  sued  out 
from  this  court  to  the  Circuit  Court  of  Kenton  County,  that  being  the 
highest  court  of  the  State  in  which  a  decision  could  be  had. 

The'  answer  and  accompanying  exhibit  were  in  substance  as 
follows : 

That  the  defendant  was  an  express  company  engaged  in  interstate 
commerce  within  the  provisions  of  the  act  of  Congress  of  June  29, 
1906;  that  in  obedience  to  that  act  it  had  duly  tiled  with  the 
Interstate  Commerce  Commission  schedules  showing  its  rates  and 
charges  from  Cincinnati  to  Augusta,  Georgia,  which  schedules  showed 
that  its  rates  and  charges,  when  the  value  of  the  property  to  be 
carried  was  in  excess  of  fifty  dollars,  were  graduated  reasonably, 
according  to  the  value,  and  that  the  lawful  rate  upon  the  package 
of  the  plaintiff  from  Cincinnati  to  Augusta  was  twenty-five  cents  if 
its  value  was  fifty  dollars  or  less,  and  was  fifty-five  cents  if  its  value 
was  one  hundred  and  twenty-five  dollars. 

It  is  averred  that  the  plaintiff  knew  that  the  charges  upon  the 
package  shipped  were  based  upon  the  value  of  the  shipment,  and 
that  it  (the  defendant)  required  that  the  value  should  be  declared 
by  the  shipper,  and  that  if  he  did  not  disclose  and  declare  the  value 
when  he  delivered  the  shipment  to  it  at  Cincinnati  for  transporta- 
tion to  Augusta,  the  rate  charged  would  be  based  upon  a  valuation  of 
fifty  dollars.  It  is  then  alleged  that  the  package  so  delivered  was 
sealed  and  that  defendant  did  not  know  the  contents  or  value,  and 
that  if  it  had  it  would  not  have  received  it  for  carriage  for  less  than 
the  lawful  published  rate  of  fifty-five  cents.  The  receipt  or  bill  of 
lading  issued  shows  no  value,  but  contains  a  stipulation  in  these 
words : 

"  In  consideration  of  the  rate  charged  for  carrying  said  property, 
which  is  regulated  by  the  value  thereof  and  is  based  upon  a  valuation 
of  not  exceeding  fifty  dollars  unless  a  greater  value  is  declared,  the 
shipper  agrees  that  the  value  of  said  property  is  not  more  than  fifty 
dollars,  unless  a  greater  value  is  stated  herein,  and  that  the  company 
shall  not  be  liable  in  any  event  for  more  than  the  value  so  stated, 
nor  for  more  than  fifty  dollars  if  no  value  is  stated  herein." 

Mr.  Justice  Lurton,  after  making  the  foregoing  statement, 
delivered  the  opinion  of  the  court. 

The  answer  relies  upon  the  act  of  Congress  of  June  29,  1906,  being 
an  act  to  amend  the  Interstate  Commerce  Act  of  1887,  as  the  only 
regulation  applicable  to  an  interstate  shipment;  and  avers  that  the  lim- 
itation of  value,  declared  in  its  bill  of  lading,  was  valid  and  obligatory 
under  that  act.  This  defense  was  denied.  This  constitutes  the 
Federal  question  and  gives  this  court  jurisdiction. 

Under  the  law  of  Kentucky  this  contract,  limiting  the  plaintiff's 
recovery  to  the  agreed  or  declared  value,  was  invalid,  and  the  shipper 
was  entitled  to  recover  the  actual  value,  "  unless,"  as  said  in  Adams 
Express  Company  v.  Walker,  119  Kentucky,  121,  129,  and  affirmed  in 


522  CARRIERS   OF   GOODS. 

Southern  Express  Company  v.  Fox  and  Logan,  131  Kentucky,  257, 
"sufficient  facts  are  shown,  independently  of  the  special  contract, 
to  avoid  the  contract  for  fraud  or  to  create  an  estoppel  at  common 

law." 

The  question  upon  which  the  case  must  turn,  is,  whether  the 
operation  and  effect  of  the  contract  for  an  interstate  shipment,  as 
shown  by  the  receipt  or  bill  of  lading,  is  governed  by  the  local  law 
of  the  state,  or  by  the  acts  of  Congress  regulating  interstate  commerce. 

That  the  constitutional  power  of  Congress  to  regulate  commerce 
among  the  States  and  with  foreign  nations  comprehends  power  to 
regulate  contracts  between  the  shipper  and  the  carrier  of  an  interstate 
shipment  by  defining  the  liability  of  the  carrier  for  loss,  delay,  injury 
or  damage  to  such  property,  needs  neither  argument  nor  citation  of 

authority. 

But  it  is  equally  well  settled  that  until  Congress  has  legislated 
upon  the  subject,  the  liability  of  such  a  carrier,  exercising  its  calling 
within  a  particular  state,  although  engaged  in  the  business  of  inter- 
state commerce,  for  loss  or  damage  to  such  property,  may  be  regulated 
by  the  law  of  the  State.  Such  regulations  would  fall  within  that 
large  class  of  regulations  which  it  is  competent  for  a  State  to  make  in 
the  absence  of  legislation  by  Congress,  growing  out  of  the  territorial 
jurisdiction  of  the  State  over  such  carriers  and  its  duty  and  power  to 
safeguard  the  general  public  against  acts  of  misfeasance  and  non- 
feasance committed  within  its  limits,  although  interstate  commerce 
may  be  indirectly  affected :  Smith  v.  Alabama,  124  U.  S.  465 ;  New 
York  &c.  Railroad  v.  New  York,  165  U.  S.  628;  Chicago,  Milwaukee 
&  St.  P.  Ry.  v.  Solan,  169  U.  S.  133,  137 ;  Richmond  &c.  Ry.  v.  Pat- 
terson Co.,  169  U.  S.  311 ;  Cleveland  &c.  Ry.  v.  Illinois,  177  U.  S.  514 ; 
Pennsylvania  Railroad  v.  Hughes,  191  U.  S.  477.  In  the  Solan  Case, 
cited  above,  it  was  said  of  such  state  legislation : 

"They  are  not,  in  themselves,  regulations  of  interstate  commerce, 
although  they  control,  in  some  degree,  the  conduct  and  the  liability  of 
those  engaged  in  such  commerce.  So  long  as  Congress  has  not  legis- 
lated upon  the  particular  subject,  they  are  rather  to  be  regarded  as 
legislation  in  aid  of  such  commerce,  and  as  a  rightful  exercise  of  the 
police  power  of  the  state  to  regulate  the  relative  rights  and  duties  of 
all  persons  and  corporations  within  its  limits." 

In  that  case  the  court  upheld  the  validity  of  an  Iowa  statute  which 
made  void  every  "contract,  receipt,  rule  or  regulation,  which  shall 
exempt  any  railway  from  liability  as  a  common  carrier,  which  would 
exist  had  no  contract,  receipt,  rule,  or  regulation  been  made  or  en- 
tered into." 

The  contract  there  involved  was  for  transportation  of  cattle  with  a 
drover  in  charge,  and  the  shipper  had  signed  a  contract  limiting  the 
liability  to  himself  or  the  drover  to  $500  for  injury  to  the  person  of 
the  drover.  Proof  was  offered  that  this  limitation  was  the  considera- 
tion for  a  reduced  rate  of  transportation. 


LIMITATION    OF    LIABILITY.  523 

In  Pennsylvania  Eailroad  v.  Hughes,  191  U.  S.  477,  487,  491,  there 
was  involved  a  bill  of  lading  in  all  essentials  identical  with  the  one 
here  concerned,  whereby  it  was  stipulated  that  in  consideration  of  a 
reduced  rate  of  freight,  the  shipper  should  receive,  in  case  of  negligent 
loss,  the  agreed  value  declared  in  the  receipt.  The  shipment  was 
made  in  New  York,  where  the  stipulation  was  valid,  to  a  point  in 
Pennsylvania,  where  such  a  limitation  was  invalid.  The  loss  occurred 
in  the  latter  State,  and  the  Supreme  Court  of  the  State  upheld  a  judg- 
ment for  the  full  value,  declaring  the  limitation  invalid  as  forbidden 
by  the  public  policy  of  that  State.  That  case  came  to  this  court  upon 
the  contention  that  the  Pennsylvania  court  in  refusing  to  limit  the 
recovery  to  the  valuation  agreed  upon  had  denied  to  the  railroad  com- 
pany a  right  or  privilege  secured  to  it  by  the  Interstate  Commerce 
Law.     But  this  court  as  to  that  said  (p.  487) : 

"  It  may  be  assumed  that  under  the  broad  power  conferred  upon 
Congress  over  interstate  commerce  as  defined  in  repeated  decisions  of 
this  court,  it  would  be  lawful  for  that  body  to  make  provision  as 
to  contracts  for  interstate  carriage,  permitting  the  carrier  to  limit  its 
liability  to  a  particular  sum  in  consideration  of  lower  freight  rates  for 
transportation.  But  upon  examination  of  the  terms  of  the  law  relied 
upon  we  fail  to  find  any  such  provision  therein.  The  sections  of  the 
interstate  commerce  law  relied  upon  by  the  learned  counsel  for  plaintiff 
in  error,  24  Stat.  379,  382 ;  25  U.  S.  Stat.  855,  provide  for  equal  facil- 
ities to  shippers  for  the  interchange  of  traffic ;  for  non-discrimination 
in  freight  rates ;  for  keeping  schedules  of  rates  open  to  public  inspec- 
tion ;  for  posting  the  same  in  public  places,  with  certain  particulars 
as  to  charges,  rules  and  regulations;  for  the  publication  of  joint  tariff 
rates  for  continuous  transportation  over  one  or  more  lines,  to  be  made 
public  when  directed  by  the  Interstate  Commerce  Commission ;  against 
advances  in  joint  tariff  rates  except  after  ten  days'  notice  to  the  com- 
mission ;  against  reduction  of  joint  tariff  rates  except  after  three  days' 
like  notice;  making  it  unlawful  for  any  party  to  a  joint  tariff  to 
receive  or  demand  a  greater  or  less  compensation  for  the  transporta- 
tion of  property  between  points  as  to  which  a  joint  tariff  is  made  dif- 
ferent than  is  specified  in  the  schedule  filed  with  the  commission; 
giving  remedies  for  the  enforcement  of  the  foregoing  provisions,  and 
providing  penalties  for  their  violation ;  making  it  unlawful  to  prevent 
continuous  carriage,  and  providing  that  no  break  of  bulk,  stoppage  or 
interruption  by  the  carrier,  unless  made  in  good  faith  for  some  neces- 
sary purpose  without  intention  to  evade  the  act,  shall  prevent  the 
carriage  of  freights  from  being  treated  as  one  continuous  carriage  from 
the  place  of  shipment  to  the  place  of  destination. 

"  While  under  these  provisions  it  may  be  said  that  Congress  has 
made  it  obligatory  to  provide  proper  facilities  for  interstate  carriage 
of  freight,  and  has  prevented  carriers  from  obstructing  continuous 
shipments  on  interstate  lines,  we  look  in  vain  for  any  regulation  of 
the  matter  here  in  controversy.     There  is  no  sanction  of  agreements 


524  CARRIERS    OF   GOODS. 

of  this  character  limiting  liability  to  stipulated  valuations,  and,  until 
Congress  shall  legislate  upon  it,  is  there  any  valid  objection  to  the 
State  enforcing  its  own  regulations  upon  the  subject,  although  it  may 
to  this  extent  indirectly  affect  interstate  commerce  contracts  of 
carriage  ?  " 

In  view  of  the  decisions  of  this  court  in  the  two  cases  last  referred 
to,  we  shall  assume  that  this  case  is  governed  by  them,  unless  the 
subsequent  legislation  of  Congress  is  such  as  to  indicate  a  purpose 
to  bring  contracts  for  interstate  shipments  under  one  uniform  rule  of 
law  not  subject  to  the  varying  policies  and  legislation  of  particular 
states. 

The  original  Interstate  Commerce  Act  of  February  4,  1887,  24 
Stat.  379,  c.  104,  was  extensively  amended  by  the  act  of  June  29, 
1906,  34  Stat.  584,  c.  3591.  We  may  pass  by  many  of  the  changes 
and  amendments  made  by  the  latter  act  as  not  decisive,  and  come  at 
once  to  the  far  more  important  amendment  made  in  §  20,  an  amend- 
ment bearing  directly  upon  the  carrier's  liability  or  obligation  under 
interstate  contracts  of  shipment,  and  generally  referred  to  as  the 
Carmack  amendment.  For  convenience  of  reference,  it  is  set  out  in 
the  margin.1 

This  amendment  came  under  consideration  in  Atlantic  Coast  Line 
v.  Eiverside  Mills,  219  U.  S.  186,  but  the  opinion  and  judgment  was 
confined  to  that  provision  of  the  act  which  made  the  initial  carrier 
liable  for  a  loss  upon  the  line  of  a  connecting  carrier,  the  property  hav- 
ing been  received  under  a  bill  of  lading  which  confined  the  liability 
of  the  initial  carrier  to  loss  occurring  upon  its  own  line. 

The  significant  and  dominating  features  of  that  amendment  are 
these  : 

First :  It  affirmatively  requires  the  initial  carrier  to  issue  "  a  re- 
ceipt or  bill  of  lading  therefor,"  when  it  receives  "  property  for  trans- 
portation from  a  point  in  one  state  to  a  point  in  another." 

Second :  Such  initial  carrier  is  made  "  liable  to  the  lawful  holder 
thereof  for  any  loss,  damage,  or  injury  to  such  property  caused  by  it." 

1  That  any  common  carrier,  railroad  or  transportation  company  receiving  prop- 
erty for  transportation  from  a  point  in  one  state  to  a  point  in  another  state  shall 
issue  a  receipt  or  bill  of  lading  therefor  and. shall  be  liable  to  the  lawful  holder 
thereof  for  any  loss,  damage,  or  injury  to  such  property  caused  by  it  or  by  any 
common  carrier,  railroad,  or  transportation  company  to  which  such  property  may 
be  delivered,  or  over  whose  line  or  lines  such  property  may  pass,  and  no  contract, 
receipt,  rule,  or  regulation  shall  exempt  such  common  carrier,  railroad,  or  trans- 
portation company  from  the  liability  hereby  imposed  :  Provided,  That  nothing  in 
this  section  shall  deprive  any  holder  of  such  receipt  or  bill  of  lading  of  any  remedy 
or  right  of  action  which  he  has  under  existing  law. 

That  the  common  carrier,  railroad  or  transportation  company  issuing  such  re- 
ceipt or  bill  of  lading  shall  be  entitled  to  recover  from  the  common  carrier,  rail- 
road or  transportation  company  on  whose  line  the  loss,  damage,  or  injury  shall 
have  been  sustained,  the  amount  of  such  loss,  damage,  or  injury,  as  it  may  be  re- 
quired to  pay  to  the  owners  of  such  property,  as  may  be  evidenced  by  any  receipt, 
judgment,  or  transcript  thereof. 


LIMITATION   OF   LIABILITY.  525 

Third  :  It  is  also  made  liable  for  any  loss,  damage,  or  injury  to 
such  property  caused  by  "  any  common  carrier,  railroad  or  transpor- 
tation company  to  which  such  property  may  be  delivered  or  over 
whose  line  or  lines  such  property  may  pass." 

Fourth :  It  affirmatively  declares  that  "  no  contract,  receipt,  rule  or 
regulation  shall  exempt  such  common  carrier,  railroad,  or  transporta- 
tion company  from  the  liability  hereby  imposed." 

Prior  to  that  amendment  the  rule  of  carrier's  liability,  for  an  in- 
terstate shipment  of  property,  as  enforced  in  both  Federal  and  state 
courts,  was  either  that  of  the  general  common  law  as  declared  by  this 
court  and  enforced  in  the  Federal  courts  throughout  the  United 
States,  Hart  v.  Pennsylvania  Railroad,  112  U.  S.  331 ;  or  that  deter- 
mined by  the  supposed  public  policy  of  a  particular  state,  Pennsyl- 
vania Railroad  v.  Hughes,  191  U.  S.  477;  or  that  prescribed  by 
statute  law  of  a  particular  state,  Chicago  &c,  Railroad  v.  Solan,  169 
U.  S.  133. 

Neither  uniformity  of  obligation  nor  of  liability  was  possible  until 
Congress  should  deal  with  the  subject.  The  situation  was  well  d^ 
picted  by  the  Supreme  Court  of  Georgia  in  Southern  Pacific  Co.  v. 
Crenshaw,  5  Ga.  App.  675,  687,  63  S.  E.  Rep.  865,  where  that  court 
said: 

"  Some  states  allowed  carriers  to  exempt  themselves  from  all  or  a 
part  of  the  common  law  liability,  by  rule,  regulation,  or  contract; 
others  did  not ;  the  Federal  courts  sitting  in  the  various  states  were 
following  the  local  rule,  a  carrier  being  held  liable  in  one  court  when 
under  the  same  state  of  facts  he  would  be  exempt  from  liability  in 
another;  hence  this  branch  of  interstate  commerce  was  being  sub- 
jected to  such  a  diversity  of  legislative  and  judicial  holding  that  it 
was  practically  impossible  for  a  shipper  engaged  in  a  business  that 
extended  beyond  the  confines  of  his  own  State,  or  for  a  carrier  whose 
lines  were  extensive,  to  know  without  considerable  investigation  and 
trouble,  and  even  then  oftentimes  with  but  little  certainty,  what 
would  be  the  carrier's  actual  responsibility  as  to  goods  delivered  to 
it  for  transportation  from  one  State  to  another.  The  congressional 
action  has  made  an  end  to  this  diversity;  for  the  national  law  is 
paramount  and  supersedes  all  state  laws  as  to  the  rights  and  liabil- 
ities and  exemptions  created  by  such  transaction.  This  was  doubtless 
the  purpose  of  the  law ;  and  this  purpose  will  be  effectuated,  and  not 
impaired  or  destroyed  by  the  state  court's  obeying  and  enforcing  the 
provisions  of  the  Federal  statute  where  applicable  to  the  fact  in  such 
cases  as  shall  come  before  them." 

That  the  legislation  supersedes  all  the  regulations  and  policies  of  a 
particular  State  upon  the  same  subject  results  from  its  general  char- 
acter. It  embraces  the  subject  of  the  liability  of  the  carrier  under  a 
bill  of  lading  which  he  must  issue  and  limits  his  power  to  exempt 
himself  by  rule,  regulation  or  contract.  Almost  every  detail  of  the 
subject  is  covered  so  completely  that  there  can  be  no  rational  doubt 


526  CARRIERS   OF   GOODS. 

but  that  Congress  intended  to  take  possession  of  the  subject  and 
supersede  all  state  regulation  with  reference  to  it.  Only  the  silence 
of  Congress  authorized  the  exercise  of  the  police  power  of  the  State 
upon  the  subject  of  such  contracts.  But  when  Congress  acted  in  such 
a  way  as  to  manifest  a  purpose  to  exercise  its  conceded  authority,  the 
regulating  power  of  the  State  ceased  to  exist.  Northern  Pacific 
Ry.  v.  State  of  Washington,  222  IT.  S.  370;  Southern  Railway  v. 
Reid,  222  U.  S.  424 ;  Mondou  v.  Railroad,  223  U.  S.  1. 

To  hold  that  the  liability  therein  declared  may  be  increased  or 
diminished  by  local  regulation  or  local  views  of  public  policy  will 
either  make  the  provision  less  than  supreme  or  indicate  that  Congress 
has  not  shown  a  purpose  to  take  possession  of  the  subject.  The  first 
would  be  unthinkable  and  the  latter  would  be  to  revert  to  the  un- 
certainties and  diversities  of  rulings  which  led  to  the  amendment. 
The  duty  to  issue  a  bill  of  lading  and  the  liability  thereby  assumed 
are  covered  in  full,  and  though  there  is  no  reference  to  the  effect  upon 
state  regulation,  it  is  evident  that  Congress  intended  to  adopt  a  uni- 
form rule  and  relieve  such  contracts  from  the  diverse  regulation  to 
which  they  had  been  theretofore  subject. 

What  is  the  liability  imposed  upon  the  carrier  ?  It  is  a  liability  to 
any  holder  of  the  bill  of  lading  which  the  primary  carrier  is  required 
to  issue  "  for  any  loss,  damage  or  injury  to  such  property  caused  by 
it,"  or  by  any  connecting  carrier  to  whom  the  goods  are  delivered. 
The  suggestion  that  an  absolute  liability  exists  for  every  loss,  damage 
or  injury  from  any  and  every  cause,  would  be  to  make  such  a  carrier 
an  absolute  insurer  and  liable  for  unavoidable  loss  or  damage  though 
due  to  uncontrollable  forces.  That  this  was  the  intent  of  Congress  is 
not  conceivable.  To  give  such  emphasis  to  the  words,  "  any  loss  or 
damage,"  would  be  to  ignore  the  qualifying  words,  "caused  by  it." 
The  liability  thus  imposed  is  limited  to  "any  loss,  injury  or  damage 
caused  by  it  or  a  succeeding  carrier  to  whom  the  property  may  be  de- 
livered," and  plainly  implies  a  liability  for  some  default  in  its  com- 
mon law  duty  as  a  common  carrier. 

But  it  has  been  argued  that  the  non-exclusive  character  of  this 
regulation  is  manifested  by  the  proviso  of  the  section,  and  that  state 
legislation  upon  the  same  subject  is  not  superseded,  and  that  the 
holder  of  any  such  bill  of  lading  may  resort  to  any  right  of  action 
against  such  a  carrier  conferred  by  existing  state  law.  This  view  is 
untenable.  It  would  result  in  the  nullification  of  the  regulation  of  a 
national  subject  and  operate  to  maintain  the  confusion  of  the  diverse 
regulation  which  it  was  the  purpose  of  Congress  to  put  an  end  to. 

What  this  court  said  of  §  22  of  this  act  of  1906  in  the  case  of 
Texas  &  Pac.  Ry.  v.  Abilene  Cotton  Mills,  204  U.  S.  426,  is  applicable 
to  this  contention.  It  was  claimed  that  that  section  continued  in 
force  all  rights  and  remedies  under  the  common  law  or  other  statutes. 
But  this  court  said  of  that  contention  what  must  be  said  of  the  proviso 
in  §  20,  that  it  was  "  evidently  only  intended  to  continue  in  existence 


LIMITATION    OF    LIABILITY.  527 

such  other  rights  or  remedies  for  the  redress  of  some  specific  wrong 
or  injury,  whether  given  by  the  Interstate  Commerce  Act,  or  by  state 
statute,  or  common  law,  not  inconsistent  with  the  rules  and  regulations 
prescribed  by  the  provisions  of  this  act."  Again,  it  was  said,  of  the 
same  clause,  in  the  same  case,  that  it  could  "  not  in  reason  be  construed 
as  continuing  in  a  shipper  a  common  law  right  the  existence  of  which 
would  be  inconsistent  with  the  provisions  of  the  act.  In  other  words, 
the  act  cannot  be  said  to  destroy  itself." 

To  construe  this  proviso  as  preserving  to  the  holder  of  any  such  lull 
of  lading  any  right  or  remedy  which  he  may  have  had  under  existing 
Federal  law  at  the  time  of  his  action,  gives  to  it  a  more  rational  inter- 
pretation than  one  which  would  preserve  rights  and  remedies  under 
existing  state  laws,  for  the  latter  view  would  cause  the  proviso  to 
destroy  the  act  itself.  One  illustration  would  be  a  right  to  a  remedy 
against  a  succeeding  carrier,  in  preference  to  proceeding  against  the 
primary  carrier,  for  a  loss  or  damage  incurred  upon  the  line  of  the 
former.  The  liability  of  such  succeeding  carrier  in  the  route  would 
be  that  imposed  by  this  statute,  and  for  which  the  first  carrier  might 
have  been  made  liable. 

We  come  now  to  the  question  of  the  validity  of  the  provision  in  the 
receipt  or  bill  of  lading  limiting  liability  to  the  agreed  value  of  fifty 
dollars,  as  shown  therein.     This  limiting  clause  is  in  these  words : 

"  In  consideration  of  the  rate  charged  for  carrying  said  property, 
which  is  regulated  by  the  value  thereof  and  is  based  upon  a  valuation 
of  not  exceeding  fifty  dollars  unless  a  greater  value  is  declared,  the 
shipper  agrees  that  the  value  of  said  property  is  not  more  than  fifty 
dollars,  unless  a  greater  value  is  stated  herein,  and  that  the  company 
shall  not  be  liable  in  any  event  for  more  than  the  value  so  stated,  nor 
for  more  than  fifty  dollars  if  no  value  is  stated  herein." 

The  answer  states  that  the  schedules  which  the  express  company 
had  filed  with  the  Interstate  Commerce  Commission  showed  rates 
based  upon  valuations ;  and  that  the  lawful  and  established  rate  for 
such  a  shipment  as  that  made  by  the  plaintiff  from  Cincinnati  to 
Augusta,  having  a  value  not  in  excess  of  fifty  dollars,  was  twenty-five 
cents,  while  for  the  same  package,  if  its  value  had  been  declared  to  be 
one  hundred  and  twenty-five  dollars,  the  amount  for  which  the  plain- 
tiff sues  as  the  actual  value,  the  lawful  charge  according  to  the  rate 
filed  and  published  would  have  been  fifty-five  cents.  It  is  further 
averred  that  the  package  was  sealed,  and  its  contents  and  actual  value 
unknown  to  the  defendant's  agent. 

That  no  inquiry  was  made  as  to  the  actual  value  is  not  vital  to  the 
fairness  of  the  agreement  in  this  case.  The  receipt  which  was 
accepted  showed  that  the  charge  made  was  based  upon  a  valuation  of 
fifty  dollars  unless  a  greater  value  should  be  stated  therein.  The 
knowledge  of  the  shipper  that  the  rate  was  based  upon  the  value  is  to 
be  presumed  from  the  terms  of  the  bill  of  lading  and  of  the  published 
schedules  filed  with  the  Commission.     That  presumption  is  strength- 


528  CARRIERS   OF    GOODS. 

ened  by  the  fact  that  across  the  top  of  this  bill  of  lading  there  was 
this  statement  in  bold  type,  "  This  Company's  charge  is  based  upon 
the  value  of  the  property,  which  must  be  declared  by  the  shipper." 

That  a  common  carrier  cannot  exempt  himself  from  liability  for  his 
own  negligence  or  that  of  his  servants  is  elementary.  York  Mfg.  Co. 
v.  Illinois  Central  Railroad,  3  Wall.  107;  Railroad  Company  v.  Lock- 
wood,  17  Wall.  357 ;  Bank  of  Kentucky  v.  Adams  Express  Company, 
93  U.  S.  174;  Hart  v.  Pennsylvania  Railroad,  112  U.  S.  331,  338. 
The  rule  of  the  common  law  did  not  limit  his  liability  to  loss  and 
damage  due  to  his  own  negligence,  or  that  of  his  servants.  That  rule 
went,  beyond  this  and  he  was  liable  for  any  loss  or  damage  which 
resulted  from  human  agency,  or  any  cause  not  the  act  of  God  or  the 
public  enemy.  But  the  rigor  of  this  liability  might  be  modified 
through  any  fair,  reasonable  and  just  agreement  with  the  shipper 
which  did  not  include  exemption  against  the  negligence  of  the  carrier 
or  his  servants.  The  inherent  right  to  receive  a  compensation  com- 
mensurate with  the  risk  involved  the  right  to  protect  himself  from 
fraud  and  imposition  by  reasonable  rules  and  regulations,  and  the 
right  to  agree  upon  a  rate  proportionate  to  the  value  of  the  property 
transported. 

It  has  therefore  become  an  established  rule  of  the  common  law  as 
declared  by  this  court  in  many  cases  that  such  a  carrier  may  by  a 
fair,  open,  just  and  reasonable  agreement  limit  the  amount  recoverable 
by  a  shipper  in  case  of  loss  or  damage  to  an  agreed  value  made  for 
the  purpose  of  obtaining  the  lower  of  two  or  more  rates  of  charges 
proportioned  to  the  amount  of  the  risk.  York  Mfg.  Co.  v.  Railroad, 
3  Wall.  107 ;  Railroad  v.  Lockwood,  17  Wall.  357 ;  Hart  v.  Pennsyl- 
vania Railroad,  cited  above ;  Phoenix  Ins.  Co.  v.  Erie  &  W.  Trans. 
Co.,  117  U.  S.  312,  322 ;  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397, 
442 ;  New  York,  L.  E.  &  W.  Ry.  v.  Estill,  147  U.  S.  591,  619 ;  Prim- 
rose v.  W.  U.  Tel.  Co.,  154  U.  S.  1,  15 ;  Chicago  &c.  Ry.  v.  Solan, 
169  U.  S.  133,  135 ;  Calderon  v.  Atlas  Steamship  Company,  170  U.  S. 
272,  278  [504]  ;  Pennsylvania  Railroad  v.  Hughes,  191  U.  S.  477,  485. 

That  such  a  carrier  might  fix  his  charges  somewhat  in  proportion 
to  the  value  of  the  property  is  quite  as  reasonable  and  just  as  a  rate 
measured  by  the  character  of  the  shipment.  The  principle  is  that 
the  charge  should  bear  some  reasonable  relation  to  the  responsibility, 
and  that  the  care  to  be  exercised  shall  be  in  some  degree  measured  by 
the  bulk,  weight,  character  and  value  of  the  property  carried. 

Neither  is  it  conformable  to  plain  principles  of  justice  that  the 
shipper  may  understate  the  value  of  his  property  for  the  purpose  of 
reducing  the  rate,  and  then  recover  a  larger  value  in  case  of  loss. 
Nor  does  a  limitation  based  upon  an  agreed  value  for  the  purpose  of 
adjusting  the  rate  conflict  with  any  sound  principle  of  public  policy. 
The  reason  for  the  legality  of  such  agreements  is  well  stated  in  Hart 
v.  Pennsylvania  Railroad,  cited  above,  where  it  is  said  (p.  340) : 

"  The  limitation    as   to   value    has    no   tendency  to   exempt   from. 


LIMITATION    OF    LIABILITY.  529 

liability  for  negligence.  It  does  not  induce  want  of  care.  It  exacts 
from  the  carrier  the  measure  of  care  due  to  the  value  agreed  on.  The 
carrier  is  bound  to  respond  in  that  value  for  negligence.  The  com- 
pensation for  carriage  is  based  on  that  value.  The  shipper  is  estopped 
from  saying  that  the  value  is  greater.  The  articles  have  no  greater 
value,  for  the  purposes  of  the  contract  of  transportation,  between  the 
parties  to  that  contract.  The  carrier  must  respond  for  negligence  up 
to  that  value.  It  is  just  and  reasonable  that  such  a  contract,  fairly 
entered  into,  and  where  there  is  no  deceit  practiced  on  the  shipper, 
should  be  upheld.  There  is  no  violation  of  public  policy.  On  the 
contrary,  it  would  be  unjust  and  unreasonable,  and  would  be  repug- 
nant to  the  soundest  principles  of  fair  dealing  and  of  the  freedom  of 
contracting,  and  thus  in  conflict  with  public  policy,  if  a  shipper  should 
be  allowed  to  reap  the  benefit  of  the  contract  if  there  is  no  loss,  and 
to  repudiate  it  in  case  of  loss." 

The  statutory  liability,  aside  from  responsibility  for  the  default  of 
a  connecting  carrier  in  the  route,  is  not  beyond  the  liability  imposed 
by  the  common  law  as  that  body  of  law  applicable  to  carriers  has 
been  interpreted  by  this  court  as  well  as  many  courts  of  the  States. 
Greenwald  v.  Barrett,  199  K.  Y.  170,  175 ;  Bernard  v.  Adams  Express 
Co.,  205  Massachusetts,  254,  259.  The  exemption  forbidden  is,  as 
stated  in  the  case  last  cited,  "  a  statutory  declaration  that  a  contract 
of  exemption  from  liability  for  negligence  is  against  public  policy 
and  void."  This  is  no  more  than  this  court,  as  well  as  other  courts 
administering  the  same  general  common  law,  have  many  times  de- 
clared. In  the  same  case,  just  such  a  stipulation  as  that  here  involved 
was  upheld,  the  court  saying  (p.  259) : 

"  But  such  a  contract  as  we  are  considering  in  this  case  is  not  an 
exemption  from  liability  for  negligence  in  the  management  of  prop- 
erty, within  the  meaning  of  the  statute.  It  is  a  contract  as  to  what 
the  property  is,  in  reference  to  its  value.  The  purpose  of  it  is  not  to 
change  the  nature  of  the  undertaking  of  the  common  carrier,  or  limit 
his  obligation  in  the  care  and  management  of  that  which  is  entrusted 
to  him.  It  is  to  describe  and  define  the  subject  matter  of  the  con- 
tract, so  far  as  the  parties  care  to  define  it,  for  the  purpose  of  showing 
of  what  value  that  is  which  comes  into  the  carrier's  possession,  and 
for  which  he  must  account  in  the  performance  of  his  duty  as  a  car- 
rier. It  is  not  in  any  proper  sense  a  contract  exempting  him  from 
liability  for  the  loss,  damage  or  injury  to  the  property,  as  the  shipper 
describes  it  in  stating  its  value  for  the  purpose  of  determining  for 
what  the  carrier  shall  be  accountable  upon  his  undertaking,  and  what 
price  the  shipper  shall  pay  for  the  service  and  for  the  risk  of  loss 
which  the  carrier  assumes." 

In  Greenwald  v.  Barrett,  cited  above,  the  same  conclusion  was 
reached  as  to  the  nature  of  the  liability  imposed  and  the  purport  of 
the  exemption  forbidden,  the  court,  among  other  things,  saying : 

"The  language  of  the  enactment  does  not  disclose  any  intent  to 


530  CARRIERS    OF    GOODS. 

abrogate  the  right  of  common  carriers  to  regulate  their  charges  for 
carriage  by  the  value  of  the  goods  or  to  agree  with  the  shipper  upon  a 
valuation  of  the  property  carried.  It  has  been  the  uniform  practice 
of  transportation  companies  in  this  country  to  make  their  charges  de- 
pendent upon  the  value  of  the  property  carried  and  the  propriety  of 
this  practice  and  the  legality  of  contracts  signed  by  the  shipper  agree- 
ing upon  a  valuation  of  the  property  were  distinctly  upheld  by  the 
Supreme  Court  of  the  United  States  in  Hart  v.  Penn.  R.  R.  Co., 
112  U.  S.  331,  341." 

To  the  same  effect  are  the  cases  of  Travis  v.  Wells,  Fargo  Co.,  79 
N.  J.  L.  83;  Fielder  v.  Adams  Express  Co.,  69  W.  Va.,  138;  S.  C,  71 
S.  E.  Rep.  99 ;  Larsen  v.  Oregon  Short  Line,  38  Utah,  130 ;  S.  C,  110 
Pac.  Rep.  983.  See  also,  Atkinson  v.  New  York  Transfer  Co.,  76 
N.  J.  L.  608,  as  to  the  general  rule. 

That  a  carrier  rate  may  be  graduated  by  value  and  that  a  stipula- 
tion limiting  recovery  to  an  agreed  value  made  to  adjust  the  rate  is 
recognized  by  the  Interstate  Commerce  Commission,  see  13  I.  C.  C. 

Rep.  550. 

We  therefore  reach  the  conclusion  that  the  provision  of  the  act  for- 
bidding exemptions  from  liability  imposed  by  the  act  is  not  violated 
by  the  contract  here  in  question. 

The  demurrer  to  the  answer  of  the  defendant  below  should  have 
been  overruled. 

For  this  reason  the  judgment  is  reversed,  with  direction  to  overrule 
the  demurrer,  and  for  such  further  proceedings  as  are  not  incon- 
sistent with  this  opinion. 


MISSOURI,   KANSAS   &   TEXAS   RAILWAY   COMPANY  v. 

HARRIMAN. 

227  U.  S.  657 ;  33  S.  C.  Rep.  397.     1913. 

The  facts,  which  involve  the  validity  under  the  Carmack  Amend- 
ment of  a  contract  for  interstate  shipment  of  live  stock  and  a  provision 
therein  fixing  the  valuation  of  the  shipment  in  case  of  loss  in  con- 
sideration of  a  lower  rate,  are  stated  in  the  opinion. 

Mr.  Justice  Lurton  delivered  the  opinion  of  the  court. 

This  was  an  action  in  a  state  court  of  Texas  by  a  shipper  of  cattle, 
under  a  special  live-stock  transportation  contract  for  a  shipment  from 
a  point  in  Missouri  to  a  point  in  Oklahoma,  to  recover  the  value 
of  cattle  killed  by  a  negligent  derailment  occurring  in  the  former 
State.  The  shipment  consisted  of  four  bulls  and  thirteen  cows, 
claimed  to  have  been  very  valuable  "show  cattle."  They  were  all 
killed,  and  plaintiffs  recovered  their  full  value,  $10,640,  and  this 
judgment  was  affirmed  by  the  court  below. 


LIMITATION    OF    LIABILITY.  531 

As  the  transaction  was  an  interstate  shipment  the  case  comes  here 
upon  questions  which  involve  the  validity  of  certain  provisions  in  the 
contract  of  shipment  when  tested  by  the  twentieth  section  of  the  Act 
to  Regulate  Commerce,  as  amended  by  the  act  of  June  29,  1906  (•"■  1 
Stat.  584,  c.  3591). 

Aside  from  the  question  of  negligence,  which  we  assume  to  be  closed 
by  the  verdict  and  judgment  in  the  state  court,  the  defenses  pressed 
here  are,  first,  that  the  limitation  of  value  in  case  of  loss  or  damage  to 
thirty  dollars  for  each  bull  and  twenty  dollars  for  each  cow,  was  a 
valid  declaration  of  the  valuation  upon  which  the  rate  was  based ;  and, 
second,  that  the  action  was  not  brought  within  ninety  days  after 
damage  sustained,  both  being  stipulations  found  in  the  shipping  con- 
tract. 

Those  provisions  in  the  contract  which  directly  relate  to  the  ques- 
tions stated  are  as  follows : 

The  title  at  the  head  of  the  contract  is,  — 

Rules  and  Regulations  for  the  Transportation  of  Live  Stock. 

NOTICE. 

This  Company  has  two  rates  on  live  stock. 

Then  follows  a  paragraph  in  these  words : 

"Ordinary  Live  Stock  transported  under  this  special  contract  is 
accepted  and  hauled  at  rate  named  below  at  owner's  risk,  as  per  con- 
ditions herein  set  forth,  with  the  distinct  understanding  that  said  rate 
is  a  special  rate,  which  is  hereby  agreed  to,  accepted  and  understood 
to  be  at  less  than  published  tariff  rate  applying  thereon  when  trans- 
ported at  carrier's  risk. 

"  All  Kinds  of  Live  Stock,  Carrier's  Risk,  will  be  taken  under  the 
provisions  and  at  rates  provided  for  by  existing  tariffs  and  classifica- 
tion." 

Then  follows  the  contract  described  as  "Special  Live  Stock  Con- 
tract No.  4.     Executed  at  Pilot  Grove  Station,  1-30-1907." 

Passing  over  a  number  of  provisions  concerning  the  agreement  upon 
the  part  of  the  carrier,  and  a  number  of  things  which  the  shipper  as- 
sumes to  do,  we  come  to  §  8,  which  is  in  these  words : 

"  8.  The  carrier  does  not  ship  live  stock  or  Emigrant  Outfit  under 
this  contract  or  at  the  rate  hereon  given  upon  which  its  liability  in 
case  of  any  loss  or  injury,  shall  exceed  the  following  prices  per  head : 

The  provision  of  the  published  tariff  sheet  referred  to  in  the  con- 
tract is  set  out  in  the  margin,  preceded  by  the  offer  of  counsel  to  file 
it  in  evidence.1     By  a  clause  in  the  ninth  section  of  the  contract  under 

1  Mr.  Head:    We  offer  the  following  portions  of  I.  C.  C.  tariff  No.  A-1636, 
M.  K.  &  T.  Local  Distance  Tariff  No.  2548  applying  on  classes  and  commodities  : 
Missouri,  Kansas  &  Texas  Railway  Co. 
The  'Katy'  Route. 


532  CARRIERS    OF   GOODS. 

which  the  cattle  were  shipped  it  is  stipulated  that  "no  suit  shall  be 
brought  against  any  carrier,  and  only  against  the  carrier  on  whose  line 
the  injuries  occur,  after  the  lapse  of  90  days  from  the  happening 
thereof,  any  statute  or  limitation  to  the  contrary  notwithstanding." 

In  respect  of  the  two  stipulations  just  referred  to,  the  trial  judge 
charged  the  jury  as  follows  : 

"  The  contract  of  shipment  in  this  case  contains  among  other  things, 
a  stipulation  that  suit  for  any  damages  growing  out  of  this  shipment 
must  be  commenced  within  ninety  days.  You  are  instructed  that 
such  stipulation  is  void  and  not  binding  upon  the  plaintiffs  herein. 

"  Said  contract  also  contains  a  stipulation  to  the  effect  that  if  the 
cattle  in  the  shipment  are  lost  or  killed,  that  their  owners  can  only 
recover  a  certain  fixed  amount,  which  amount  is  named  in  said  con- 
tract. You  are  instructed  that  such  stipulation  is  void  and  not  bind- 
ing upon  plaintiffs  in  this  case,  and  if  you  should  find  for  plaintiffs, 
you  will  fix  the  amount  of  their  damages  under  instructions  hereinafter 
given  you." 

This  charge  was  approved  upon  appeal  and  the  judgment  affirmed. 
The  ground  upon  which  the  charge  in  respect  to  the  limitation  of 
recovery  in  case  of  loss  was  based  was  first,  that  every  such  contract, 
where  the  loss  was  due  to  negligence,  was  null  and  void  under  the 
law  and  public  policy  of  the  state ;  and,  second,  that  it  was  a  contract 
of  exemption  forbidden  by  the  Hepburn  Act  of  June  29,  1906,  being 

Local  Distance  Tariff  No.  2548. 
(cancels  No.  737.) 
Applying  on  classes  and  commodities  between  stations  on  the  Missouri,  Kansas 
&  Texas  Ry.  as  follows : 

Between  Stations  in  And  Stations  in 

Indian  Territory  Oklahoma  Territory 

Missouri  or  Kansas  Indian  Territory 

Missouri  or  Kansas  Oklahoma  Territory 

And  locally  between  Stations  in  the  Indian  or  Oklahoma  Territories. 

Rates  in  Cents  Per  100  lbs. 
Cattle  (See  Rule  3.) 

Distance  Commodities  Carloads 

380  miles  and  over  370    .. 26| 

Rule  3. 
Live  Stock  —  Continued. 

Limitation  of  Liability.  —  Rates  provided  on  Live  Stock  will  apply  only  on 
shipments  made  at  Owner's  Risk,  with  limitation  of  liability  on  the  part  of  the 
railroad  company  as  common  carrier  under  the  terms  and  conditions  of  the 
current  Live  Stock  contract  provided  by  this  company,  the  contract  to  be  first 
duly  executed  in  manner  and  form  provided  therein. 

120  per  cent  of  the  rates  named  in  this  tariff  will  be  charged  on  shipments 
made  without  limitations  of  carrier's  liability  at  common  law,  and  under  this 
status  shippers  will  have  the  choice  of  executing  and  accepting  contracts  for  ship- 
ments of  Live  Stock  with  or  without  limitation  of  liability,  the  rates  to  be  made  as 
provided  for  herein. 


LIMITATION    OF   LIABILITY.  533 

the  Car  mack  Amendment  of  the  twentieth  section  of  the  general  act 
to  regulate  commerce  of  February  4,  1887.     (24  Stat.  379,  c.  104.) 

That  the  shipper  had  the  choice  of  two  rates,  one  twenty  per  cent, 
higher  than  the  other,  upon  this  shipment,  is  shown  by  the  provisions 
of  the  shipping  contract  and  the  tariff  sheets  referred  to  therein. 
That  the  difference  between  the  two  rates  was  not  unreasonable,  the 
one  when  the  cattle  were  not  valued  and  the  other  when  their  value 
was  declared,  is  to  be  assumed  from  the  acceptance  of  the  rates  as 
filed  with  the  Commission.  That  the  "  portion  "  of  the  rate  sheets  in 
evidence  does  not  include  the  "  Current  Live  Stock  Contract "  referred 
to  in  the  part  filed,  is  of  no  vital  significance.  The  objection  was  not 
made  below.  The  case  was  proceeded  with  in  the  state  court  upon 
the  hypothesis  that  the  "  Current  Live  Stock  Contract,"  referred  to  in 
the  "  portion "  of  the  rate  sheets  actually  in  evidence,  was  the  live 
stock  contract  executed  by  the  parties,  and  had  been  duly  filed  as 
part  of  the  rate  sheets.  It  is  too  late  to  make  an  objection  here  which, 
if  made  below,  might  have  been  remedied  by  filing  all  instead  of  a 
"  portion  "  of  the  filed  tariff.  Texas  &  P.  Eailway  v.  Abilene  Oil  Co., 
204  U.  S.  426.  In  any  event  •  the  rate  sheets  do  provide  for  a  choice 
between  two  rates,  one  with  and  one  without  a  declared  valuation. 
In  one  case  the  carrier  is  liable  for  whatever  loss  or  damage  the  shipper 
sustains  and  in  the  other  its  liability  is  limited  to  the  valuation  upon 
which  the  rate  was  based.  The  ground  upon  which  the  shipper  is 
limited  to  the  valuation  declared  is  that  of  estoppel,  and  presupposes 
the  valuation  to  be  one  made  for  the  purpose  of  applying  the  lower  of 
two  rates  based  upon  the  value  of  the  cattle.  This  whole  matter  has 
been  so  fully  considered  in  Adams  Express  Company  v.  Croninger, 
226  U.  S.  491  [520],  and  Kansas  City  Southern  Railway  v.  Carl,  just 
decided  [227  U.  S.  639],  that  we  only  need  to  refer  to  the  opinions  in 
those  cases  without  further  elaboration. 

That  the  trial  court  and  the  Court  of  Civil  Appeals  erred  in  holding 
this  stipulation  null  and  void  because  forbidden  by  either  the  law  or 
policy  of  the  State  of  Texas,  or  by  the  twentieth  section  of  the  act  of 
June  29,  1906,  is  no  longer  an  open  question  since  the  decisions  of 
this  court  in  the  cases  just  referred  to. 

Nor  is  there  anything  upon  the  face  of  this  contract,  when  read  in 
connection  with  the  rate  sheets  referred  to  therein,  (of  which  the 
defendants  in  error  were  compelled  to  take  notice  not  only  because 
referred  to  in  the  contract  signed  by  them,  but  because  they  had  been 
lawfully  filed  and  published),  which  offends  against  the  provisions  of 
the  twentieth  section  of  the  act  of  June  29,  1906. 

Neither  is  the  valuation  of  cattle  at  thirty  and  twenty  dollars  per 
head  subject  to  impeachment  as  upon  its  face  arbitrary  and  unreason- 
able. The  valuation  in  this  case  was  made  by  the  consignor  himself. 
The  contract  upon  this  point  reads,  "And  said  shipper  represents  and 
agrees  that  his  said  live  stock  ...  do  not  exceed  in  value  those  prices," 
referring  to  the  schedule  set  out  immediately  above  that  declaration. 


534  CARRIEKS   OF    GOODS. 

That  the  cattle  were  not  other  than  average  or  ordinary  cattle  of  no 
peculiar  value  as  "  show  cattle,"  or  otherwise,  is  indicated  by  the 
character  of  the  printed  form  of  contract  signed  by  the  consignor. 
After  reciting  that  the  company  had  two  rates  on  live  stock,  it 
proceeds,  — "  Ordinary  live  stock  transported  under  this  special 
contract,"  etc. 

The  contract  here  involved  is  substantially  identical  with  the  con- 
tract and  schedule  upheld  in  Hart  v.  Pennsylvania  Railroad,  112  U.  S. 
331,  where  the  transportation  was  "  on  the  condition  that  the  carrier 
assumes  a  liability  on  the  stock  to  the  extent  of  the  following  agreed 
valuation :  '  If  horses  or  mules,  not  exceeding  two  hundred  dollars  each. 
If  cattle  or  cows,  not  exceeding  seventy-five  dollars  each.'  " 

In  the  case  at  bar  it  has  been  said  that  the  shipper  was  not  asked  to 
state  the  value,  but  only  signed  the  contract  handed  to  him  and  made 
no  declaration.  But  the  same  point  was  made  in  the  Hart  Case,  when 
the  court  said  (p.  337) : 

"A  distinction  is  sought  to  be  drawn  between  a  case  where  a  ship- 
per, on  requirement,  states  the  value  of  the  property,  and  a  rate  of 
freight  is  fixed  accordingly,  and  the  present  case.  It  is  said,  that, 
while  in  the  former  case  the  shipper  may  be  confined  to  the  value  he  so 
fixed,  in  the  event  of  a  loss  by  negligence,  the  same  rule  does  not 
apply  to  a  case  where  the  valuation  inserted  in  the  contract  is  not  a 
valuation  previously  named  by  the  shipper.  But  we  see  no  sound 
reason  for  this  distinction.  The  valuation  named  was  the  'agreed 
valuation,'  the  one  on  which  the  minds  of  the  parties  met,  however  it 
came  to  be  fixed,  and  the  rate  of  freight  was  based  on  that  valuation, 
and  was  fixed  on  condition  that  such  was  the  valuation,  and  that  the 
liability  should  go  to  that  extent  and  no  further." 

It  is  said  that  the  contract  in  the  case  at  bar  includes  a  valuation  of 
all  bulls  and  all  cows  at  the  same  sum,  and  that  this  is  arbitrary  and 
not  the  result  of  any  real  effort  to  value  the  particular  bulls  and  cows 
to  be  transported.  But  the  same  objection  applied  to  the  contract  in 
the  Hart  Case,  where  horses  were  valued  at  the  same  maximum  value 
and  other  cattle  at  the  same  fixed  sum.  But  here,  as  there,  it  is  plain 
that  all  animals,  horses  and  other  cattle,  have  not  a  fixed  value,  and  so, 
the  contract  fixes  "a  graduated  value  according  to  the  nature  of  the 
animal." 

It  is  not  unreasonable  for  the  purpose  of  graduating  freight  accord- 
ing to  value  to  divide  the  particular  subject  of  transportation  into  two 
classes,  those  above  and  those  below  a  fixed  maximum  amount.  No 
other  method  is  practicable,  and  this  is  a  method  administratively  ap- 
proved by  the  Commerce  Commission. 

That  the  value  of  the  cattle  shipped  under  this  valuation  did  greatly 
exceed  the  valuation  therein  represented,  may  be  true.  It  only  serves 
to  show  that  the  shipper  obtained  a  lower  rate  than  he  was  lawfully 
entitled  to  have  by  a  misrepresentation.  It  is  neither  just  nor  equi- 
table that  ne  shall  benefit  by  the  lower  rate,  and  then  recover  for  a 


LIMITATION    OF    LIABILITY.  535 

value  which  he  said  did  not  exist,  in  order  to  obtain  that  rate.  Hav- 
ing obtained  a  rate  based  upon  the  declared  value,  he  is  concluded,  and 
there  is  no  room  for  parol  evidence  to  show  otherwise.  Hart  r. 
Pennsylvania  Railroad,  and  Kansas  City  &c.  Railroad  v.  Carl,  supra. 

When  the  carrier  graduates  its  rates  by  value  and  has  filed  its 
tariffs  showing  two  rates  applicable  to  a  particular  commodity  or  cla 
of  articles,  based  upon  a  difference  in  valuation,  the  shipper  must  take 
notice,  for  the  valuation  automatically  determines  which  of  the  rates 
is  the  lawful  rate.  If  he  knowingly  declares  an  undervaluation  for 
the  purpose  of  obtaining  the  lower  of  two  published  rates,  he  thereby 
obtains  an  advantage  and  causes  a  discrimination  forbidden  and  made 
unlawful  by  the  first  section  of  the  Elkins  Act  of  February  19,  1903 
(32  Stat.  847,  c.  708).  Texas  &  P.  Railway  v.  Mugg,  202  U.  S.  242  ■ 
Chicago  &  A.  Railway  v.  Kirby,  225  U.  S.  155.  The  particular  cattle 
were  loaded  by  the  shipper  and  were  never  seen  by  the  company's 
agent.  Neither  was  it  claimed  that  he  was  informed  of  the  value  or 
quality  of  the  cattle  to  be  shipped.  We  see  no  ground  upon  which 
this  contract  can  be  held  upon  its  face  to  have  offended  against  the 
statute. 

The  court  below  held  that  the  stipulation  in  the  shipping  contract 
that  no  suit  shall  be  brought  after  the  lapse  of  ninety  days  from  the 
happening  of  any  loss  or  damage,  "any  statute  of  limitation  to  the 
contrary  notwithstanding,"  was  avoid. 

It  is  conceded  that  there  are  statutes  in  Missouri,  the  State  of  the 
making  of  the  contract,  and  the  State  in  which  the  loss  and  damage 
occurred,  and  in  Texas,  the  State  of  the  forum,  which  declare  contracts 
invalid  which  require  the  bringing  of  an  action  for  a  carrier's  liability 
in  less  than  the  statutory  period,  and  that  this  action,  though  started 
after  the  lapse  of  the  time  fixed  by  the  contract  was  brought  within 
the  statutory  period  of  both  States. 

The  liability  sought  to  be  enforced  is  the  "  liability  "  of  an  interstate 
carrier  for  loss  or  damage  under  an  interstate  contract  of  shipment 
declared  by  the  Carmack  Amendment  of  the  Hepburn  Act  of  June  29, 
1906.  The  validity  of  any  stipulation  in  such  a  contract  which  in- 
volves the  construction  of  the  statute,  and  the  validity  of  a  limitation 
upon  the  liability  thereby  imposed  is  a  Federal  question  to  be  deter- 
mined under  the  general  common  law,  and,  as  such,  is  withdrawn 
from  the  field  of  state  law  or  legislation.  Adams  Express  Co.  u. 
Croninger,  226  U.  S.  491  [520]  ;  Michigan  Central  Railroad  v.  Vree- 
land,  [227  U.  S.]  59.  The  liability  imposed  by  the  statute  is  the  lia- 
bility imposed  by  the  common  law  upon  a  common  carrier,  and  may  be 
limited  or  qualified  by  special  contract  with  the  shipper,  provided  I 
limitation  or  qualification  be  just  and  reasonable,  and  does  notexem 
from  loss  or  responsibility  due  to  negligence.  Adams  Express  Com- 
pany v.  Croninger,  and  Michigan  Central  Railroad  v.  Yreeland,  cited 
above;  York  Co.  v.  Central  Railroad  Co.,  3  Wall.  107;  Railroad 
Company   v.   Lockwood,  17  Wall.  357;   Express   Company  v.  Cald- 


536  CARRIERS   OF    GOODS. 

well,  21  Wall.  264,  267  [536]  ;  Hart  v.  Pennsylvania  Railroad,  112 
U.  S.  331. 

The  policy  of  statutes  of  limitations  is  to  encourage  promptness  in  the 
bringing  of  actions,  that  the  parties  shall  not  suffer  by  loss  of  evidence 
from  death  or  disappearance  of  witnesses,  destruction  of  documents  or 
failure  of  memory.  But  there  is  nothing  in  the  policy  or  object  of 
such  statutes  which  forbids  the  parties  to  an  agreement  to  provide  a 
shorter  period,  provided  the  time  is  not  unreasonably  short.  That  is 
a  question  of  law  for  the  determination  of  the  court.  Such  stipula- 
tions have  been  sustained  in  insurance  policies.  Riddlesbarger  v. 
Hartford  Insurance  Co.,  7  Wall.  386.  A  stipulation  that  an  express 
company  should  not  be  held  liable  unless  claim  was  made  within  ninety 
days  after  a  loss  was  held  good  in  Express  Company  v.  Caldwell,  21 
Wall.  264  [536].  Such  limitations  in  bills  of  lading  are  very  custom- 
ary and  have  been  upheld  in  a  multitude  of  cases.  We  cite  a  few  : 
Central  Vermont  Railroad  v.  Soper  (1st  C.  C.  A.),  59  Fed.  Rep.  879 ; 
Ginn  v.  Ogdensburg  Transit  Co.  (7th  C.  C.  A.),  85  Fed.  Rep.  985;  Cox 
v.  Central  Vermont  Railroad,  170  Massachusetts,  129 ;  North  British 
&c.  Insurance  Co.  v.  Central  Vermont  Railroad,  9  App.  Div.  (N.  Y.)  4, 
aff'd  158  N.  Y.  726.  Before  the  Texas  and  Missouri  statutes  forbidding 
such  special  contracts,  short  limitations  in  bills  of  lading  were  held  to 
be  valid  and  enforceable.  McCarty  v.  Gulf  &c.  Ry.,  79  Texas,  33 ; 
Thompson  v.  Chicago  &c.  Ry.,  22  Mo.  App.  321.  See  cases  to  same 
effect  cited  in  6  Cyc,  p.  508.  The  provision  requiring  suit  to  be 
brought  within  ninety  days  is  not  unreasonable. 

For  the  errors  indicated,  the  judgment  must  be  reversed  for  such 
further  proceedings  as  may  be  consistent  with  this  opinion. 

Mr.  Justice  Hughes  concurs  in  the  result.  Mr.  Justice  Pitney 
dissents. 


d.    Time  for  claiming  damages. 

EXPRESS   CO.    v.    CALDWELL. 
21  Wall.  (U.  S.),  264.     1874. 

Caldwell  sued  the  Southern  Express  Company  in  the  court  below, 
as  a  common  carrier,  for  its  failure  to  deliver  at  New  Orleans  a  pack- 
age received  by  it  on  the  23d  day  of  April,  1862,  at  Jackson,  Tennes- 
see,—  places  the  transit  between  which  requires  only  about  one  day. 
The  company  pleaded  that  when  the  package  was  received  "it  was 
agreed  between  the  company  and  the  plaintiff,  and  made  one  of  the 
express  conditions  upon  which  the  package  was  received,  that  the 
company  should  not  be  held  liable  for  any  loss  of,  or  damage  to, 


LIMITATION    OF   LIABILITY.  537 

the  package  whatever,  unless  claim  should  be  made  therefor  within 
ninety  days  from  its  delivery  to  it."  The  plea  further  averred  that 
no  claim  was  made  upon  the  defendant,  or  upon  any  of  its  agents, 
until  the  year  1868,  more  than  ninety  days  after  the  delivery  of  the 
package  to  the  company,  and  not  until  the  present  suit  was  brought. 
To  the  plea  thus  made  the  plaintiff  demurred  generally,  and  the 
Circuit  Court  sustained  the  demurrer,  giving  judgment  thereon 
against  the  company.  Whether  this  judgment  was  correct  was  the 
question  now  to  be  passed  on  here. 

Mr.  Justice  Strong.     Notwithstanding  the  great  rigor  with  which 
courts  of  law  have  always  enforced  the  obligations  assumed  by  com- 
mon carriers,  and  notwithstanding  the  reluctance  with  which  modi- 
fications of  that  responsibility,  imposed  upon  them  by  public  policy, 
have  been  allowed,  it  is  undoubtedly  true  that  special  contracts  with 
their  employers  limiting  their  liability  are  recognized  as  valid,  if  in 
the  judgment  of  the  courts  they  are  just  and  reasonable,  —  if  they 
are  not  in  conflict  with  sound  legal  policy.     The  contract  of  a  com- 
mon carrier  ordinarily  is  an  assumption  by  him  of  the  exact  duty 
which  the  law  affixes  to  the  relation  into  which  he  enters  when  he 
undertakes  to  carry.     That  relation  the  law  regards  as  substantially 
one  of  insurance  against  all  loss  or  damage  except  such  as  results 
from  what  is  denominated  as  the  act  of  God  or  of  the  public  enemy. 
But  the  severe  operation  of  such  a  rule  in  some  cases  has  led  to  a 
relaxation   of  its   stringency,  when  the  consignor  and  the  carrier 
agree  to  such  a  relaxation.     All  the  modern  authorities  concur  in 
holding  that,  to  a  certain  extent,  the  extreme  liability  exacted  by 
the  common  law  originally  may  be  limited  by  express  contract.     The 
difficulty  is  in  determining  to  what  extent,  and  here  the  authorities 
differ.     Certainly  it  ought  not  to  be  admitted  that  a  common  carrier 
can  be  relieved  from  the  full  measure  of  that  responsibility  which 
ordinarily  attends  his  occupation  without  a  clear  and  express  stipu- 
lation to  that  effect  obtained  by  him  from  his  employer.     And  even 
when  such  a  stipulation  has  been  obtained,  the  court  must  be  able  to 
see  that  it  is  not  unreasonable.     Common  carriers  do  not  deal  with 
their  employers  on  equal  terms.     There  is,    in  a  very   important 
s  use,  a  necessity  for  their  employment.     In  many  cases  they  are 
corporations  chartered  for  the  promotion  of  the  public  convenience. 
They  have  possession  of  the  railroads,  canals,  and  means  of  trans- 
portation  on   the    rivers.     They   can    and  they  do   carry  at   much 
cheaper  rates  than  those  which  private  carriers  must  of  necessity 
demand.     They  have  on   all   important  routes   supplanted  private 
carriers.     In  fact,  they  are  without  competition,  except  as  between 
themselves,  and  that  they  are  thus  is  in  most  cases  a  consequence  of 
advantages   obtained  from  the  public.     It  is,  therefore,   just  that 
they  are  not  allowed  to  take  advantage  of  their  powers  and  of  the 
necessities  of  the  public  to  exact  exemptions  from  that  measure  <>t 
duty  which  public   policy  demands.     But   that  which  was   public 


538  CAKRIEES    OF    GOODS. 

policy  a  hundred  years  ago  has  undergone  changes  in  the  progress 
of  material  and  social  civilization.  There  is  less  danger  than  there 
was  of  collusion  with  highwaymen.  Intelligence  is  more  rapidly 
diffused.  It  is  more  easy  to  trace  a  consignment  than  it  was.  It 
is  more  difficult  to  conceal  fraud.  And,  what  is  of  equal  importance, 
the  business  of  common  carriers  has  been  immensely  increased  and 
subdivided.  The  carrier  who  receives  goods  is  very  often  not  the 
one  who  is  expected  to  deliver  them  to  the  ultimate  consignees.  He 
is  but  one  link  of  a  chain.  Thus  his  hazard  is  greatly  increased. 
His  employers  demand  that  he  shall  be  held  responsible,  not  merely 
for  his  own  acts  and  omissions,  and  those  of  his  agents,  but  for 
those  of  other  carriers  whom  he  necessarily  employs  for  completing 
the  transit  of  goods.  Hence,  as  we  have  said,  it  is  now  the  settled 
law  that  the  responsibility  of  a  common  carrier  may  be  limited  by 
an  express  agreement  made  with  his  employer  at  the  time  of  his 
accepting  goods  for  transportation,  provided  the  limitation  be  such 
as  the  law  can  recognize  as  reasonable  and  not  inconsistent  with 
sound  public  policy.  This  subject  has  been  so  fully  considered  of 
late  in  this  court  that  it  is  needless  to  review  the  authorities  at  large. 
In  York  Company  v.  The  Central  Eailroad  Company,1  it  is  ruled 
that  the  common-law  liability  of  a  common  carrier  may  be  limited 
and  qualified  by  special  contract  with  the  owner,  provided  such 
special  contract  do  not  attempt  to  cover  losses  by  negligence  or 
misconduct.  And  in  a  still  later  case,  Eailroad  Company  v.  Lock- 
wood,2  where  the  decisions  are  extensively  reviewed,  the  same 
doctrine  is  a.sserted.  The  latter  case,  it  is  true,  involved  mainly  an 
inquiry  into  the  reasonableness  of  an  exception  stipulated  for,  but 
it  unequivocally  accepted  the  rule  asserted  in  the  first-mentioned 
case.  The  question,  then,  which  is  presented  to  us  by  this  record 
is,  whether  the  stipulation  asserted  in  the  defendant's  plea  is  a 
reasonable  one,  not  inconsistent  with  sound  public  policy. 

It  may  be  remarked,  in  the  first  place,  that  the  stipulation  is  not 
a  conventional  limitation  of  the  right  of  the  carrier's  employer  to 
sue.  He  is  left  at  liberty  to  sue  at  any  time  within  the  period  fixed 
by  the  Statute  of  Limitations.  He  is  only  required  to  make  his 
claim  within  ninety  days,  in  season  to  enable  the  carrier  to  ascer- 
tain what  the  facts  are,  and,  having  made  his  claim,  he  may  delay 
his  suit. 

It  may  also  be  remarked  that  the  contract  is  not  a  stipulation  for 
exemption  from  responsibility  for  the  defendants'  negligence,  or  for 
that  of  their  servants.  It  is  freely  conceded  that  had  it  been  such, 
it  would  have  been  against  the  policy  of  the  law,  and  inoperative. 
Such  was  our  opinion  in  Railroad  Company  v.  Lockwood.  A  com- 
mon carrier  is  always  responsible  for  his  negligence,  no  matter 
what  his  stipulation  may  be.  But  an  agreement  that  in  case  of 
failure  by  the  carrier  to  deliver  the  goods,  a  claim  shall  be  made  by 

i  3  Wallace,  107.  2  17  Id.  357. 


LIMITATION    OF    LIABILITY.  539 

the  bailor,  or  by  the  consignee,  within  a  specified  period,  if  that 
period  be  a  reasonable  one,  is  altogether  of  a  different  character.  It 
contravenes  no  public  policy.  It  excuses  no  negligence.  It  is  per- 
fectly consistent  with  holding  the  carrier  to  the  fullest  measure  of 
good  faith,  of  diligence,  and  of  capacity,  which  the  strictest  rules  of 
the  common  law  ever  required.  And  it  is  intrinsically  just,  as 
applied  to  the  present  case.  The  defendants  are  an  express  com- 
pany. We  cannot  close  our  eyes  to  the  nature  of  their  business. 
They  carry  small  parcels  easily  lost  or  mislaid,  and  not  easily  traced. 
They  carry  them  in  great  numbers.  Express  companies  are  modern 
conveniences,  and  notoriously  they  are  very  largely  employed. 
They  may  carry,  they  often  do  carry  hundreds,  even  thousands  of 
packages  daily.  If  one  be  lost,  or  alleged  to  be  lost,  the  difficulty 
of  tracing  it  is  increased  by  the  fact  that  so  many  are  carried,  and 
it  becomes  greater  the  longer  the  search  is  delayed.  If  a  bailor 
may  delay  giving  notice  to  them  of  a  loss,  or  making  a  claim  indefi- 
nitely, they  may  not  be  able  to  trace  the  parcels  bailed,  and  to 
recover  them,  if  accidentally  missent,  or  if  they  have  in  fact  been 
properly  delivered.  With  the  bailor  the  bailment  is  a  single  trans- 
action, of  which  he  has  full  knowledge;  with  the  bailee,  it  is  one  of 
a  multitude.  There  is  no  hardship  in  requiring  the  bailor  to  give 
notice  of  the  loss  if  any,  or  make  a  claim  for  compensation  within  a 
reasonable  time  after  he  has  delivered  the  parcel  to  the  carrier. 
There  is  great  hardship  in  requiring  the  carrier  to  account  for  the 
parcel  long  after  that  time,  when  he  has  had  no  notice  of  any  failure 
of  duty  on  his  part,  and  when  the  lapse  of  time  has  made  it  difficult, 
if  not  impossible,  to  ascertain  the  actual  facts.  For  these  reasons 
such  limitations  have  been  held  valid  in  similar  contracts,  even  when 
they  seem  to  be  less  reasonable  than  in  the  contracts  of  common 
carriers. 

Policies  of  fire  insurance,  it  is  well  known,  usually  contain  stipu- 
lations that  the  insured  shall  give  notice  of  a  loss,  and  furnish 
proofs  thereof  within  a  brief  period  after  the  fire,  and  it  is  undoubted 
that  if  such  notice  and  proofs  have  not  been  given  in  the  time  desig- 
nated or  have  not  been  waived,  the  insurers  are  not  liable.  Such 
conditions  have  always  been  considered  reasonable,  because  they 
give  the  insurers  an  opportunity  of  inquiring  into  the  circumstances 
and  amount  of  the  loss,  at  a  time  when  inquiry  may  be  of  service. 
And,  still  more,  conditions  in  policies  of  fire  insurance  that  no  action 
shall  be  brought  for  the  recovery  of  a  loss  unless  it  shall  be  com- 
menced within  a  specified  time,  less  than  the  statutory  period  of 
limitations,  are  enforced,  as  not  against  any  legal  policy.1 

Telegraph  companies,  though  not  common  carriers,  are  engaged 
in  a  business  that  is  in  its  nature  almost,  if  not  quite,  as  important 
to  the  public  as  that  of  carriers.     Like  common  carriers,  they  cannot 

1  See  Riddlesbarger  v.  Hartford  Insurance  Company,  7  Wallace,  386,  and  the 
numerous  cases  therein  cited. 


540  CARllIEKS    OF    GOODS. 

contract  with  their  employers  for  exemption  from  liability  for  the 
consequence  of  their  own  negligence.  But  they  may  by  such  con- 
tracts, or  by  their  rules  and  regulations  brought  to  the  knowledge 
of  their  emploj^ers,  limit  the  measure  of  their  responsibility  to  a 
reasonable  extent.  Whether  their  rules  are  reasonable  or  unreason- 
able must  be  determined  with  reference  to  public  policy,  precisely 
as  in  the  case  of  a  carrier.  And  in  Wolf  v.  The  Western  Union 
Telegraph  Company,1  a  case  where  one  of  the  conditions  of  a  tele- 
graph company,  printed  in  their  blank  forms,  was  that  the  company 
would  not  be  liable  for  damages  in  any  case  where  the  claim  was 
not  presented  in  writing  within  sixty  days  after  sending  the  mes- 
sage, it  was  ruled  that  the  condition  was  binding  on  an  employer  of 
the  company  who  sent  his  message  on  the  printed  form.  The  con- 
dition printed  in  the  form  was  considered  a  reasonable  one,  and  it 
was  held  that  the  employer  must  make  claim  according  to  the  con- 
dition, before  he  could  maintain  an  action.  Exactly  the  same  doc- 
trine was  asserted  in  Young  v.  The  Western  Union  Telegraph 
Company.2 

In  Lewis  v.  The  Great  Western  Railway  Company,3  which  was 
an  action  against  the  company  as  common  carriers,  the  court  sus- 
tained as  reasonable  stipulations  in  a  bill  of  lading,  that  "  no  claim 
for  deficiency,  damage,  or  detention  would  be  allowed,  unless  made 
within  three  days  after  the  delivery  of  the  goods,  nor  for  loss,  unless 
made  within  seven  days  from  the  time  they  should  have  been 
delivered."  Under  the  last  clause  of  this  condition  the  onus  was 
imposed  upon  the  shipper  of  ascertaining  whether  the  goods  had 
been  delivered  at  the  time  they  should  have  been,  and  in  case  they 
had  not,  of  making  his  claim  within  seven  days  thereafter.  In  the 
case  we  have  now  in  hand  the  agreement  pleaded  allowed  ninety 
days  from  the  delivery  of  the  parcel  to  the  company,  within  which 
the  claim  might  be  made,  and  no  claim  was  made  until  four  years 
thereafter.  Possibly  such  a  condition  might  be  regarded  as  unrea- 
sonable, if  an  insufficient  time  were  allowed  for  the  shipper  to  learn 
whether  the  carrier's  contract  had  been  performed.  But  that  can- 
not be  claimed  here.  The  parcel  was  received  at  Jackson,  Ten- 
nessee, for  delivery  at  New  Orleans.  The  transit  required  only 
about  one  day.  We  think,  therefore,  the  limitation  of  the  defend- 
ants' common-law  liability,  to  which  the  parties  agreed,  as  averred 
in  the  plea,  was  a  reasonable  one,  and  that  the  plea  set  up  a  sufficient 
defence  to  the  action. 

We  have  been  referred  to  one  case  which  seems  to  intimate,  and 
perhaps  should  be  regarded  as  deciding,  that  a  stipulation  somewhat 
like  that  pleaded  here  is  insufficient  to  protect  the  carrier.  It  is 
the  Southern  Express  Company  v.  Caperton.4  There  the  receipts 
for  the  goods  contained  a  provision  that  there  should  be  no  liability 

i  62  Pennsylvania  State,  83.  2  34  New  York  Superior  Court,  390. 

3  5  Hurlstone  &  Norman,  867.  4  44  Alabama,  101. 


LIMITATION    OF   LIABILITY.  541 

for  any  loss  unless  the  claim  therefor  should  be  made  in  writing,  at 
the  office  of  the  company  at  Stevenson,  within  thirty  days  from  the 
date  of  the  receipt,  in  a  statement  to  which  the  receipt  should  be 
annexed.  The  receipt  was  signed  by  the  agent  of  the  company 
alone.  It  will  be  observed  that  it  was  a  much  more  onerous  require- 
ment of  the  shipper  than  that  made  in  the  present  case,  and  more 
than  was  necessary  to  give  notice  of  the  loss  to  the  carrier.  Tin- 
court,  after  remarking  that  a  carrier  cannot  avoid  his  responsibility 
by  any  mere  general  notice,  nor  contract  for  exemption  from  liabili- 
ties for  his  negligence  or  that  of  his  servants,  added  that  he  could 
not  be  allowed  to  make  a  statute  of  limitations  so  short  as  to  be 
capable  of  becoming  a  means  of  fraud ;  that  it  was  the  duty  of  the 
"defendant  to  deliver  the  package  to  the  consignee,  and  that  it  was 
more  than  unreasonable  to  allow  it  to  appropriate  the  property  of 
another  by  a  failure  to  perform  a  duty,  and  that  too  under  the  pro- 
tection of  a  writing  signed  only  by  its  agent,  the  assent  to  which  by 
the  other  party  was  only  proven  by  his  acceptance  of  the  paper." 
This  case  is  a  very  unsatisfactory  one.  It  appears  to  have  regarded 
the  stipulation  as  a  statute  of  limitations,  which  it  clearly  was  not, 
and  it  leaves  us  in  doubt  whether  the  decision  was  not  rested  on 
the  ground  that  there  was  no  sufficient  evidence  of  a  contract.  The 
case  cited  from  36  Georgia,  532,  has  no  relation  to  the  question 
before  us.  It  has  reference  to  the  inquiry,  what  is  sufficient  proof 
of  an  agreement  between  the  shipper  and  the  carrier,  an  inquiry 
that  does  not  arise  in  the  present '  case,  for  the  demurrer  admits  an 
express  agreement. 

Our  conclusion,  then,  founded  upon  the  analogous  decisions  of 
courts,  as  well  as  upon  sound  reason,  is  that  the  express  agreement 
between  the  parties  averred  in  the  plea  was  a  reasonable  one,  and 
hence  that  it  was  not  against  the  policy  of  the  law.  It  purported 
to  relieve  the  defendants  from  no  part  of  the  obligation  of  a  common 
carrier.  They  were  bound  to  the  same  diligence,  fidelity,  and  care 
as  they  would  have  been  required  to  exercise  if  no  such  agreement 
had  been  made.  All  that  the  stipulation  required  was  that  the 
shipper,  in  case  the  package  was  lost  or  damaged,  should  assert  his 
claim  in  season  to  enable  the  defendants  to  ascertain  the  facts;  in 
other  words,  that  he  should  assert  it  within  ninety  days.  It  follows 
that  the  Circuit  Court  erred  in  sustaining  the  plaintiff's  demurrer 
to  the  plea. 

Judgment  reversed. 


542  CARRIERS   OF    GOODS. 

SPRAGUE  v.   MISSOURI  PACIFIC  R.   CO. 

34  Kan.  347.     1885. 

Action  by  Sprague  against  the  Railway  Company,  to  recover 
$500  damages.  Judgment  for  defendant.  Plaintiff  brings  the  case 
here.     The  opinion  states  the  material  facts. 

Johnston,  J.   S.     Sprague  brought   this  action  in    the   District 
Court  of  Cloud  County  against  the  Missouri  Pacific  Railway  Com- 
pany,   alleging,  in    substance,    that   the   defendant   was   a   common 
carrier,  and  that  on  or  about  the  2d  day  of  March,  1883,  for  a  valu- 
able consideration,  the  railway  company  undertook  and  agreed  with 
the  plaintiff  to   safely  carry  over   its  road   from  Atchison  to  Con- 
cordia   certain    stock,    goods,    wares,    and    merchandise;    that    he 
delivered  the  property  mentioned  for  shipment  in  good  condition  at 
Atchison,   but  the    defendant   negligently  and   carelessly  managed 
the  car  upon  which  the  property  was  shipped,  and  by  reason  of  such 
negligence  and  without  any  fault  on  the  part  of  the  plaintiff,  four  of 
the  horses  so  shipped  by  the  plaintiff  were  thrown  down,  bruised, 
and  injured  so  that  one  of  them  died,  and  the  others  were  more  or 
less  disabled,  to  the  damage  of  plaintiff  in  the  sum  of  $500.     The 
railway  company  denied  the  allegations  of  negligence,  and  the  terms 
of  the  contract  as  stated  by  the  plaintiff,  and  alleged  that  the  prop- 
erty had  been  shipped  in  accordance  with  the  terms  of  a  special 
agreement  entered  into  between  the  plaintiff  and  the  defendant, 
wherein  it  was  stated  that  the  company  transported  livestock  only 
in  accordance  with  certain  rules  and  regulations,  which  were  men- 
tioned, and  that,  in  consideration  that  the  defendant  company  would 
transport  for  the  said  plaintiff  the  said  property  at  the  rate  of  $30 
per  car,  the  same  being  a  special  rate  lower  than  the  regular  rate 
mentioned  in  the  freight  tariff  of  the  railway  company,  and  other 
considerations,  the  plaintiff  agreed  to  release  the  defendant   from 
some  of  the  responsibility  and  risks  imposed  by  law  upon  the  rail- 
way company  when  acting  as  a  common  carrier.     The  contract  is  set 
out  at  length  in  the  answer,  and  it  provided  that  the  plaintiff  should 
load  and  unload  his  stock  at  his  own  risk,  and  feed,  water,  and  attend 
to   the  same  at  his  own  expense.     He  was  also  to  accompany  and 
care  for  the  stock  while  it  was  being  transported  over  the  defend- 
ant's road,  and  for  that  purpose  the  railway  company  was  to  furnish 
the  plaintiff  free  transportation  over  its  road  for  one  person  from 
the  point  of  shipment  to  the  destination. 

Among  the  stipulations  of  the  contract  is  the  following:  — 

"And  for  the  consideration  before  mentioned,  said  party  of  the 

second  part  further  agrees  that  as  a  condition  precedent  to  his  right 

to  recover  any  damages  for  any  loss  or  injury  to  said  stock,  he  will 

give  notice  in  writing  of  his  claim  therefor  to  some  officer  of  said 


LIMITATION    OF   LIABILITY.  543 

party  of  the  first  part,  or  its  nearest  station  agent,  before  said  stock 
is  removed  from  the  place  of  destination  above  mentioned,  or  from 
the  place  of  the  delivery  of  the  same  to  the  said  party  of  the  second 
part,  and  before  such  stock  is  mingled  with  other  stock." 

The  defendant  then  alleged  that  the  horses  were  unloaded   and 
taken  from  the  car  at  Clifton  by  the  duly-authorized  agent  of  the 
plaintiff,  who  refused  the  defendant  the  right  to  transport  the  same 
to  Concordia,  and  that  when  he  obtained  possession  of  the  same  he 
was  well  aware  of  their  condition,  and  well  knew  whether  they  had 
sustained  any  injury  or  damage;  and  that  neither  the  plaintiff  nor 
any  one  acting  for  him,  prior  to  the  commencement  of  this  action, 
made   any  demand   in   writing  for  any  damages   sustained  to  said 
stock,  and  never  at  any  time  gave  any  notice  in  writing  of  plaintiff's 
claim  for  any  damages,  loss,  or  injuries  to  said  stock,  to  defendant, 
or  any  of  its  officers  or  agents.     The  reply  of  the  plaintiff  was  a 
general  denial,  not  verified.    Upon  tne  trial  it  was  expressly  admitted 
that   the  special  contract  set  up  in  defendant's  answer  was  signed 
and  executed  by  the  duly-authorized  agents  of  the  parties,  and  it 
was  further  admitted  that  if  the  plaintiff  is  entitled  to  recover  under 
the  contract  for  the  injuries  alleged  by  the  plaintiff,  the  amount  of 
such  recovery  should  be  $300.     Testimony  was  then  offered  by  the 
plaintiff  to  the  effect  that  the  horses  were  in  good  condition  when 
delivered    to    the    railway    company    at    Atchison,     Kansas.     His 
brother  was  given  a  free  pass  over  the  road  and  accompanied  the 
train  upon  which  the  horses  were  shipped,  for  the  purpose  of  caring 
for  the  stock  while  it  was  being  transported  over  the  defendant's 
road.     At  several  points  on  the  route  he  inspected  them,  and  found 
them  to  be  still  in  good  condition.     At  the  station  named  Palmer, 
some  distance  east  of  Concordia,  the  horses  were  again  examined  by 
the  plaintiff's  brother,  and  were  then  all  right,  and  after  returning 
to  the  caboose  and  before  leaving  that  station,  he  felt  several  jars, 
but  was  unable  to  state  what  occasioned  them,  or  whether  the  horses 
were  injured  thereby.      Upon  arriving  at  Clifton,  the  next  station, 
he  again  examined  the  horses  and  found  that  some  of  them  were 
lying  down,   and    apparently  injured.     He   then    demanded  of    the 
conductor  that  the  car  in  which  the  horses  were  shipped  should  be 
backed    up   to   the    stockyards    in   order   that  the  horses  might  be 
removed  from   the   car.     This    was    done,    when    the    horses   were 
unloaded  and  found  to  be  considerably  bruised.     He  then  refused  to 
reload  the  horses  upon  the  car,  took  possession  of  them,  and  caused 
them  to  be  taken  across  the  country  to  the  plaintiff's  farm,   which 
was  not  far  distant.     The  plaintiff  further  testified  that  when  the 
car  reached  Concordia,  he  paid  the  price  agreed  upon  for  the  trans- 
portation of  the  same ;  but  that  no  notice  has  ever  been  given  to  the 
conductor  of  that  train,  or  to  any  officer  or  agent  of  the  railway 
company,  prior  to  the  commencement  of  this  action,  that  he  claimed 
any  damages  for  the  injury  to  his  stock;  that  he  knew  the  condition 


544  CARRIERS    OF    GOODS. 

of  the  horses  and  the  extent  of  the  injury  to  them  before  they  were 
taken  to  the  farm,  and  yet  he  had  not  given  any  notice  of  any  claim 
therefor.  When  the  plaintiff  closed  his  testimony,  the  railway 
company  interposed  a  demurrer  to  the  evidence,  which  the  court, 
after  consideration,   sustained. 

Upon  this  ruling  the  plaintiff  raises  and  discusses  several  ques- 
tions here,  but  as  one  of  them  disposes  of  the  case,  the  others  require 
no  attention.     If  the  contract  of  the  parties,  by  which  it  was  agreed 
that  before  the  plaintiff  could  recover  damages  for  any  injury  to  his 
horses,  is  to  be  upheld,  he  must  give  notice  in  writing  of  his  claim 
therefor,  to  some  officer  of  the  railway  company,  or  to  its  nearest 
station   agent,  before  the  horses  were  removed   from  the  place  of 
destination  or  from  the  place  of  the  delivery  of  the  same  to  the 
plaintiff,  and  before  they  were  mingled  with  other  stock,  then  the 
demurrer  to  the  evidence  was  rightly  sustained,  and  the  judgment 
should  be  affirmed.     The  plaintiff  contends  that  the  agreement  is 
not  binding  upon  him,  because  it  is  not  one  permitted  by  the  law? 
to  be  made,  and  for  further  reason  that  it  is  without  consideration. 
As  a  general  rule,  common  carriers  are  held  liable  as  insurers,  and 
are  absolutely  responsible  for  any  loss  to  the  property  intrusted  to 
them,  unless  such  loss  is  occasioned  by  the  act  of  God,  or  the  public 
enemy.     It  is  now  a  well-established  rule  of  law  that  this  liability 
may  be  limited  to  a  certain  extent;  but  to  accomplish  this  it  must 
clearly  appear  that  the  shipper  understood  and  assented  to  the  limi- 
tation.    Common  carriers  are  not  permitted,  by  agreement  or  other- 
wise, to  exempt  themselves  from  liability  for  loss  occasioned  by 
their   negligence  or  misconduct.     Such  limitations  are  held  to  be 
against  the  policy  of  the  law,   and  would  be  void.     But  it  is  no 
longer  questioned  that  they  may,  by  special  agreement,  stipulate  for 
exemption  from  the  extreme  liability  imposed  by  the  common  law, 
provided  that  such  stipulations  are  just  and  reasonable  and  do  not 
contravene  any  law  or  a  sound  public  policy.     That  the  agreement 
in  question  was  executed  by  the  plaintiff,  is  admitted,  not  only  by 
the  pleadings,  but  it  was  expressly  agreed  to  by  him  upon  the  trial. 
There  is  no  pretence  that  any  deceit  or  fraud  was  practised  upon 
him  by  the  railway  company  in  obtaining  his  assent  to  the  agree- 
ment.    So  far  as  appears  in  the  testimony,  it  was  fairly  and  under- 
standing^ entered  into  and  executed.     His  authorized  agent,  who 
accompanied  the  horses,  and  who  had  them  in  charge  while  passing 
over  defendant's  road,  knew  of  this  provision  of  the  contract,   and 
was  acquainted  with  their  condition  before  they  were  taken  from 
the  possession  of  the   railway  company.     And  the  plaintiff,  with 
full  knowledge  of  this  requirement,  paid  the  freight  charges  agreed 
upon,  after  the  injury  had  been  done,  without  complaint,  and  with- 
out claiming  any  damages  therefor;  and  gave  no  notice,  nor  did  he 
make   any  claim  for  damages  prior  to  the  commencement  of  this 
action. 


LIMITATION    OF   LIABILITY.  .11.- 

The  stipulation  requiring  notice  of  any  claim  for  damages  to  be 
given  cannot  be  regarded  as  an  attempt  to  exonerate  the  company 
from  negligence  or  from  the  negligence  or  misfeasance  of  any  of  its 
servants.  The  company  concedes  that  such  an  agreement  would  be  in- 
effectual for  that  purpose.  It  is  to  be  regarded  rather  as  a  regulation 
for  the  protection  of  the  company  from  fraud  and  imposition  in  the 
adjustment  and  payment  of  claims  for  damages  by  giving  the  com- 
pany a  reasonable  opportunity  to  ascertain  the  nature  of  the  damage 
and  its  cause.  After  the  property  has  been  taken  from  its  posses- 
sion and  mingled  with  other  property  of  a  like  kind,  the  difficulty  of 
inquiring  into  the  circumstances  and  character  of  the  injury  would 
be  very  greatly  increased.  That  such  a  provision  does  not  contra- 
vene public  policy,  and  that  it  is  just  and  reasonable,  has  been 
expressly  adjudicated  by  this  court.  In  Goggin  v.  K.  P.  Ely.  Co., 
12  Kas.  416,  a  limitation  substantially  like  the  one  in  question  was 
under  consideration,  and  the  circumstances  of  that  case  were  much 
like  those  of  the  present  one.  It  was  there,  as  here,  urged  in  sup- 
port of  the  reasonableness  and  justice  of  the  regulation,  that  the 
defendant  was,  at  the  time  of  the  alleged  injury,  engaged  in  trans- 
porting great  numbers  of  cattle  and  horses  over  its  line  of  road,  and 
which  were  being  shipped  to  different  points  thereon,  and  that  it 
would  have  been  impossible  for  it  to  have  distinguished  one  car-load 
from  another,  unless  its  attention  was  called  immediately  thereto, 
and  that  the  object  of  the  notice  and  demand  mentioned  in  the  con- 
tract was  to  relieve  it  from  any  false  or  fictitious  claim,  and  to 
give  it  an  opportunity  to  have  an  inspection  of  the  stock  before  they 
were  removed  or  mingled  with  others,  and  the  company  could  thus 
have  an  opportunity  to  ascertain  and  allow  the  actual  damages 
suffered.  These  reasons  are  said  to  be  cogent;  and  the  agreement 
is  there  held  to  be  reasonable,  just,  and  valid.  The  decision  in 
that  case  governs  the  one  at  bar,  and  the  view  which  we  have  taken 
of  the  validity  of  this  limitation  accords  with  the  decisions  of  other 
courts,  among  which  the  following  may  be  cited:  Rice  v.  K.  P.  Ely. 
Co.,  63  Mo.  314;  Oxley  v.  St.  Louis,  Kans  s  City  &  Northern  Ely.. 
65  id.  629;  Express  Co.  v.  Caldwell,  21  Wall.  264  [536] ;  Dawson  v. 
St.  Louis,  Kansas  City  &  Northern  Ely.,  76  Mo.  514;  Texas  Central 
Ely.  Co.  v.  Morris,  16  Am.  &  Eng.  Eld.  Cases,  259,  and  cases  there 
cited. 

The  plaintiff  makes  the  further  objection  to  the  special  agreement, 
that  it  was  without  consideration.  It  appears  that  the  rate  to  be 
paid  for  the  car  in  which  the  horses  were  shipped  was  omitted  from 
the  contract,  and  the  plaintiff  urges  that  as  the  price  is  not  stated, 
it  does  not  appear  that  any  concession  or  reduction  was  made  from 
the  established  rates,  and  therefore  there  was  no  consideration  for 
the  stipulation  in  question.  But  that  position  cannot  be  main- 
tained. The  contract  was  in  writing,  and  signed  by  the  parties  to 
be  bound  thereby,  and  by  virtue  of  our  statute  it  imports  a  consid 


546  CARRIERS    OF    GOODS. 

eration.  Gen.  Stat.  eh.  21,  §  7.  If  more  was  needed  to  show  that 
the  objection  is  not  well  founded,  it  might  be  found  in  the  plain- 
tiff's petition,  where  he  alleges  that  the  contract  was  based  upon  a 
valuable  consideration;  and  in  his  testimony,  where  it  appears  that 
$30  was  the  rate  agreed  upon  and  the  amount  that  was  paid  by  him 
under  the  contract.  When  these  things"  are  taken  in  connection 
with  the  statement  in  the  written  contract,  that  the  price  agreed 
upon  was  a  reduction  from  the  established  rates,  the  consideratior< 
for  the  stipulation  in  question  is  sufficiently  shown. 

It   follows   from  what  has  been  said,  that  the  judgment  ef  «<ne 
District  Court  should  be  affirmed. 


RIDGWAY  GRAIN    CO.  v.  PENNSYLVANIA  RAILROAD  CO. 
228  Pa.  641;  77  Atl.  R.  1007;  31  L.  R.  A.  N.'S.  1178.     1910. 

[Appeal  from"  a  judgment  on  a  verdict  in  favor  of  Sal  berg  and 
Morey,  doing  business  as  the  Ridgway  Grain  Co.,  against  the  Penn- 
sylvania Railroad  Co.  for  the  value  of  seventeen  carloads  of  grain  and 
feed  shipped  by  plaintiffs  to  Copelin  as  consignee  without  requiring 
the  surrender  of  the  bills  of  lading  by  such  consignee.] 

Mr.  Justice  Potter.  The  question  here  involved  is  the  liability 
of  defendant  company  for  the  value  of  seventeen  car  loads  of  grain 
and  feed,  delivered  by  the  agent  of  the  defendant,  to  the  consignee, 
without  requiring  the  surrender  of  the  bills  of  lading.  As  a  general 
principle,  if  the  carrier  delivers  to  anyone,  even  to  the  consignee,  with- 
out requiring  the  production  of  the  bill  of  lading,  it  does  so  at  its 
peril.  But  there  may  be  cases  in  which,  by  custom  or  a  course  of 
dealing  between  consignor  and  consignee,  delivery  has,  with  the  knowl- 
edge and  acquiescence  of  the  consignor,  been  permitted  without  the 
surrender  of  the  bill  of  lading.  In  such  a  case,  the  carrier,  in  the 
absence  of  notice  that  the  bill  of  lading  is  being  held  as  security  for 
the  purchase  price  of  the  goods,  may  be  justified  in  making  delivery 
without  requiring  the  surrender  of  the  bill  of  lading.  See  1  Hutchin- 
son on  Carriers,  sec.  177,  where  the  author  cites  National  Bank  v. 
P.  &  R.  R.  R.  Co.,  163  Pa.  467.  In  the  present  case,  the  course  of  deal- 
ing between  the  plantiffs  and  their  consignee,  Duke  Copelin,  extended 
over  a  period  from  June,  1905,  to  June,  1907,  and  during  that  time 
they  sold  him  some  fifty-one  car  loads  of  merchandise.  There  is  evi- 
dence to  show  that  all,  or  nearly  all  of  these  cars  were  delivered  to  the 
consignee  without  obtaining  the  surrender  of  the  bills  of  lading.  For 
some  thirty-four  of  the  cars,  payment  was  made  after  delays  varying 
from  15  days  to  251  days.  For  the  value  of  the  contents  of  the  re- 
maining seventeen  cars,  for  which  no  payment  has  been  made  by  the 
carrier,  the  plaintiffs  here  seek  to  recover  from  the  defendant.  No 
complaint  seems  to  have  been  made  to  the  defendant  company  until 


THE    BILL    OF    LADING.  547 


June,  1907,  although  Copelin  was  then  indebted  to  plaintiffs  for  cars 
delivered  in  October  previous.  The  letters  of  plaintiffs  to  Copelin, 
which  were  in  evidence,  not  only  show  that  they  knew  of  the  prac- 
tice under  which  Copelin  was  permitted  to  take  the  cars  without  sur- 
rendering the  bills  of  lading,  but  that  they  were  satisfied  with  it,  pro- 
viding Copelin  made  payment  to  them  within  a  reasonable  time.  What 
they  objected  to  was,  not  the  practice  of  delivering  the  cars  without  sur- 
rendering the  bills  of  lading,  but  it  was  the  large  amount  of  the  credit 
thus  obtained  from  them  by  Copelin,  and  the  length  of  time  to  which 
it  was  extended.  These  letters  clearly  show  a  course  of  dealing  which 
accepted  the  fact  of  delivery  of  cars  without  reference  to  bills  of  lad- 
ing, and  under  which  plaintiffs  charged  interest  upon  drafts,  and 
strove  to  get  Copelin  to  reduce  the  amount  of  his  indebtedness  to  them. 
Yet  in  the  face  of  all  this,  they  continued  to  ship  additional  car  loads 
of  grain  to  Copelin,  without  a  word  of  complaint  to  defendant  com- 
pany, or  any  hint  to  it,  that  they  desired  to  terminate  the  course  of 
dealing  which  they  had  pursued,  and  would  in  the  future  rely  upon 
the  bills  of  lading  to  secure  to  themselves  possession  of  the  grain  until 
it  was  paid  for  by  Copelin.  In  North  Penna.  R.  R.  Co.  v.  Commercial 
Nat.  Bank,  123  U.  S.  727,  it  was  held  that  a  shipper  was  not  bound  by 
a  custom  to  deliver  live  stock  to  a  drove  yard  company,  without  the 
production  of  a  bill  of  lading,  where  knowledge  of  the  custom  was 
not  brought  home  to  the  shipper.  .  .  . 

The  ruling  of  the  court  below  as  to  the  failure  to  make  claim  for 
the  loss  within  thirty  days  of  the  alleged  wrongful  delivery  was  in 
accordance  with  the  authorities.     In  4  Elliott  on  Railroads  (2d  ed., 
1907),  sec.  1512,  it  is  said :  "  A  valid  contract  may  be  made  requiring 
claim  for  loss  or  damages  to  freight  to  be  presented  in  a  certain  man- 
ner or  within  a  certain  time,  provided  it  is  reasonable.  .  .  .     Such  a 
stipulation  is  not  available  to  a  common  carrier  in  case  of  conversion 
of  the  goods  by  the  carrier.'-'     In  Chicago,  etc.,  Ry.  Co.  v.  Bank,  26 
Ind.  App.  600,  the  precise  question  arose.     The  carrier  had  delivered 
freight  to  the  wrong  person  and  the  consignee  brought  suit  for  dam- 
ages.    Notice  of  the  claim  had  not  been  given  within  thirty  days 
after  the  arrival  of  the  goods  at  the  point  of  delivery,  and  defense  was 
made  on  that  ground.     Wiley,  J.,  said  (pp.  603-604) :   "  The  general 
rule  is  that  this  condition  in  a  bill  of  lading  is  a  reasonable  one,  and 
that  the  giving  of  such  notice  is  a  condition  precedent  to  any  recovery 
upon  the  contract,  and  that  a  performance  of  such  condition  must  be 
averred  in  the  complaint  and  proved  on  the  trial.  .  .  .     The  cases  so 
holding  are  based  upon  loss  or  damage  in  transitu,  and  do  not  relate 
to  cases  where  there  has  been  a  conversion.  .  .  .     That  the  delivery 
of  goods  by  a  common  carrier  to  a  third  or  wrong  person  amounts  to  a 
conversion  is  so  declared  by  many  authorities."     In  Forbes  v.  Boston 
&  Lowell  R.  R.  Co.,  133  Mass.  154,  Morton,  C.  J.,  said  (p.  156) :   "  It 
is  settled  that  any  misdelivery  of  property  by  a  carrier  or  warehouse- 
man to  a  person  unauthorized  by  the  owner  or  person  to  whom  the 


548  CARRIERS   OF   GOODS. 

carrier  or  warehouseman  is  bound  by  his  contract  to  deliver  it,  is  of 
itself  a  conversion,  which  renders  the  bailee  liable  in  an  action  of  tort, 
without  regard  to  the  question  of  his  due  care  or  negligence."  In 
Schouler  on  Bailments  (1905),  392,  it  is  said  that  "  the  common  law, 
in  fact,  treats  such  misdelivery  (of  goods  to  the  wrong  person)  as  con- 
version, and  makes  the  carrier  suable  in  trover ; "  citing  among  other 
cases  Shenk  v.  Steam  Propeller  Co.,  60  Pa.  109,  where  Justice  Shars- 
wood  said  (p.  116)  :  "  There  is  one  point  which  is  indispxitable,  that 
he  must  take  care  at  his  peril  that  the  goods  are  delivered  to  the  right 
person,  for  a  delivery  to  a  wrong  person  renders  him  clearly  respon- 
sible. .  .  .  Such  a  wrongful  delivery  has  been  held  in  many  cases  to 
amount  to  a  conversion,  and  that  trover  may  be  maintained."  The 
tenth  assignment  of  error  is  therefore  overruled.  .  .  . 


e.  Consignor  and  Consignee  bound. 

GRACE   v.   ADAMS. 
100  Mass.  505.     1868. 

Contract,  against  the  defendants,  who  carried  on  business  under 
the  name  of  the  Adams  Express  Company,  to  recover  the  value  of  a 
package  of  money.  In  the  Superior  Court,  judgment  was  ordered 
for  the  plaintiff  on  agreed  facts,  and  the  defendants  appealed.  The 
agreed  facts  were  as  follows :  — 

"  It  is  agreed  that  the  plaintiff  delivered  to  the  Adams  Express 
Company,  as  common  carriers,  at  Wilmington,  in  the  State  of  North 
Carolina,  March  21,  1865,  a  package  containing  one  hundred  and 
fifty  dollars,  directed  to  Patrick  Corbett,  Taunton,  Massachusetts, 
and  the  said  Express  Company  at  the  same  time  delivered  to  the 
plaintiff  a  bill  of  lading,  a  copy  whereof  is  hereto  annexed,  and 
which  makes  part  of  this  statement;  that  the  said  Express  Company 
shipped  said  package  with  other  packages  from  Wilmington  by  the 
steamship  <  General  Lyon,'  which  ship  was  accidentally  burnt  at 
sea,  and  said  package  thereby  destroyed.  It  is  further  agreed,  if 
evidence  of  the  fact  be  admissible,  that  the  plaintiff  would  tes- 
tify that  when  the  plaintiff  delivered  the  package  and  took  the 
bill  of   lading,  a  copy  of   which  is  annexed,  he   did   not  read   the 

same." 

The  material  parts  of  the  bill  of  lading,  of  which  the  copy  was 

annexed,  were  as  follows :  — 

"  Adams  Express  Company.  Great  Eastern,  Western  &  Southern 
Express    Forwarders.     $150.     Eorm   5.     Wilmington,    March    21, 

1865.     Received  from One  P.,  Sealed  and  said  to  contain  one 

hundred   and   fifty   dolls.     Addressed,    Patrick    Corbett.    Tauntoc, 
Mass. 


LIMITATION    OF    LIABILITY.  549 

"Upon  the  special  acceptance  and  agreement  that  this  company 
is  to  forward  the  same  to  its  agent  nearest  or  most  convenient  to 
destination  only,  and  there  to  deliver  the  same  to  other  parties  to 
complete  the  transportation,  —  such  delivery  to  terminate  all  liabil- 
ity of  this  company  for  such  package;  and  also,  that  this  company 
is  not  to  be  liable  in  any  manner  or  to  any  extent  for  any  loss, 
damage,  or  detention  of  such  package,  or  of  its  contents,  or  of  any 
portion  thereof,  .  .  .  occasioned  by  the  dangers  of  railroad  trans- 
portation, or  ocean  or  river  navigation,  or  by  fire  or  steam.  For 
the  Company.     Robinson." 

Colt,  J.  It  is  to  be  received  as  now  settled  by  the  current  and 
weight  of  authority,  that  a  common  carrier  may,  by  special  contract, 
avoid  or  limit  his  liability  at  common  law  as  an  insurer  of  property 
intrusted  to  him  against  loss  or  damage  by  fire,  occurring  without 
fault  on  his  part.  It  is  not  necessary  to  discuss  here,  how  far  W. 
this  or  other  respects  he  may  escape  those  liabilities  which  the 
policy  of  the  law  imposes  by  mere  notices  brought  home  to  the 
employer,  or  whether  the  effect  of  such  notices  may  not  be  held  to 
vary  according  as  it  is  attempted  to  avoid  those  extraordinary  respon- 
sibilities which  are  peculiar  to  common  carriers,  or  those  other 
liabilities  under  which  they  are  held  in  common  with  all  other 
bailees  for  hire.  Judson  v.  Western  Railroad  Co.,  6  Allen,  486 
[477];  York  Co.  v.  Central  Railroad  Co.,  3  Wallace,  107;  Hooper  v. 
Wells,  27  Calif.  11;  and  see  article  by  Redfield,  with  collection  of 
authorities,  5  Am.  Law  Reg.  x.  s.  1. 

It  is  claimed  here  that  the  shipping  receipt  or  bill  of  lading  con- 
stituted a  valid  and  binding  contract  between  the  parties,  and  that, 
upon  the  loss  at  sea  of  the  plaintiff's  package  in  the  course  of  its 
transportation  under  the  contract,  by  an  accidental  fire,  the  defend- 
ants were  discharged  from  any  obligation  to  the  plaintiff  in  regard 
to  it;  and  the  court  are  of  opinion  that  this  claim  must  be  sustained. 

The.  receipt  was  delivered  to  the  plaintiff  as  the  contract  of  the 
defendants;  it  is  in  proper  form;  and  the  terms  and  conditions  are 
expressed  in  the  body  of  it  in  a  way  not  calculated  to  escape  atten- 
tion. The  acceptance  of  it  by  the  plaintiff,  at  tne  time  of  the 
delivery  of  his  package,  without  notice  of  his  dissent  from  its  terms, 
authorized  the  defendants  to  infer  assent  by  the  plaintiff.  It  was 
his  only  voucher  and  evidence  against  the  defendants.  It  is  not 
claimed  that  he  did  not  know,  when  he  took  it,  that  it  was  a  shin- 
ping  contract  or  bill  of  lading.  It  was  his  duty  to  read  it.  The 
law  presumes,  in  the  absence  of  fraud  or  imposition,  that  he  did 
read  it,  or  was  otherwise  informed  of  its  contents,  and  was  willing 
to  assent  to  its  terms  without  reading  it.  Any  other  rule  would 
fail  to  conform  to  the  experience  of  all  men.  Written  contracts  are 
intended  to  preserve  the  exact  terms  of  the  obligations  assumed,  so 
that  they  may  not  be  subject  to  the  chances  of  a  want  of  recollection 
or  an  intentional  misstatement,     The  defendants  have  a  right  to  this 


550  CARRIERS    OF   GOODS. 

protection  and  are  not  to  be  deprived  of  it  by  the  wilful  or  negligent 
omission  of  the  plaintiff  to  read  the  paper.  The  case  of  Rice  v. 
Dwight  Manufacturing  Co.,  2  Cush.  80,  87,  is  an  authority  in  point. 
In  an  action  to  recover  for  work  done,  the  defence  was  that  the 
work  was  performed  under  a  special  contract,  and  a  paper  of  printed 
regulations  was  shown  to  have  been  given  to  and  accepted  by.  the 
plaintiff  as  containing  the  terms  of  the  contract,  but  which  was  not 
signed  by  either  party.  The  plaintiff  denied  knowledge  of  its  con- 
tents; but  it  was  said  by  Forbes,  J.,  that  where  a  party  enters  into 
a  written  contract,  in  the  absence  of  fraud,  he  is  conclusively  pre- 
sumed to  understand  the  terms  and  legal  effect  of  it,  and  to  consent 
to  them.  See  also  Lewis  v.  Great  Western  Railway  Co.,  5H.  &  N, 
867;  Squire  v.  New  York  Central  Railroad  Co.,  98  Mass.  239. 

This  case,  then,  is  brought  within  the  rule  which  authorizes  car- 
riers to  relieve  themselves  from  losses  of  this  description  by  express 
contracts  with  the  employer.  It  differs  from  the  cases  of  Brown  v. 
Eastern  Railroad  Co.,  11  Cush.  97,  and  Malone  v.  Boston  &  Worcester 
Railroad  Co.,  12  Gray,  388.  The  limitation  relied  on  in  both  those 
cases  was  in  the  form  of  a  notice  printed  on  the  back  of  a  passenger 
ticket,  relating  to  baggage;  and  it  was  held  that  there  was  no  pre- 
sumption of  law  that  the  party,  at  the  time  of  receiving  the  ticket, 
had  knowledge  of  the  contents  of  the  notice.  It  is  obvious  that  in 
those  cases  the  ticket  was  not  designed  to  be  held  as  the  evidence  of 
the  contract  between  the  parties.  The  contract,  which  was  of  pas- 
senger transportation,  was  not  attempted  to  be  set  forth.  At  most, 
it  was  but  a  check,  to  be  used  temporarily  and  then  delivered  to 
the  conductor  as  his  voucher,  with  these  notices  on  the  back.  The 
presumption  that  every  man  knows  the  terms  of  a  written  contract 
which  he  enters  into,  therefore,  did  not  apply.  Nor  was  the  accept- 
ance of  the  ticket  conclusive  evidence  of  assent  to  its  terms. 

The  recent  case  of  Buckland  v.  Adams  Express  Co.,  97  Mass.  124, 
requires  notice,  because,  upon  a  case  in  most  respects  similar  to 
this,  a  different  result  was  reached  by  the  court.1     The  legal  prin- 

1  [The  following  paragraph  from  the  opinion  in  the  case  cited  shows  the  view  of 
the  court  on  this  point.  The  other  portion  of  the  case  is  found  on  page  318  of  this 
volume.] 

The  other  question  raised  hy  the  agreed  facts  is  rather  one  of  fact  than  of  law.  It 
is  no  longer  open  to  controversy  in  this  State  that  a  common  carrier  may  limit  his 
responsibility  for  property  intrusted  to  him  hy  a  notice  containing  reasonable  and 
suitable  restrictions,  if  brought  home  to  the  owner  of  goods  delivered  for  transporta- 
tion and  assented  to  clearly  and  unequivocally  by  him.  It  is  also  settled  that  assent 
is  not  necessarily  to  be  inferred  from  the  mere  fact  that  knowledge  of  such  notice  on 
the  part  of  an  owner  or  consignor  of  goods  is  shown.  The  evidence  must  go  further 
and  be  sufficient  to  show  that  the  terms  on  which  the  carrier  proposed  to  carry  the 
goods  were  adopted  as  the  contract  between  the  parties  according  to  which  the  service 
of  the  carrier  was  to  be  rendered.  Judson  v.  Western  Railroad  Co.,  6  Allen,  486- 
490  [477].  On  a  consideration  of  the  facts  stated,  it  does  not  appear  to  us  that  the 
plaintiffs  ever  did  agree  that  the  merchandise  in  question  should  be  transported  on 
the  terms  set  forth  in  the  receipt  which  was  delivered  to  the  workman  at  the  manu- 


LIMITATION    OF   LIABILITY.  551 

ciples  upon  which  that  case  was  decided  are  those  here  stated.  It 
was  a  case  upon  an  agreed  statement  of  facts;  and  the  difference 
resulted  in  the  application  of  the  law  to  the  facts  then  presen 
It  is  to  be  noticed  that  the  receipt  containing  the  limitation  relied 
on  was  in  that  case  delivered  to  a  workman  in  the  employ  of  :. 
stranger,  who,  so  far  as  it  appears,  had,  in  that  particular  instance 
only,  been  requested  by  the  plaintiffs  to  deliver  the  parcel  in  their 
absence,  and  as  a  mere  favor  to  them.  And  it  further  appeared 
that  the  previous  course  of  dealing  between  the  parties  was  such 
that,  in  a  majority  of  instances,  in  which  the  plaintiffs  had  employed 
the  defendants  to  transport  like  packages,  no  receipt  was  made  out, 
and  no  special  contract  insisted  upon.  Under  such  circumstan 
it  was  held  that  it  could  not  fairly  be  inferred  that  the  plaintiffs 
understood  and  assented  to  the  contents  of  the  receipt  as  fixing  the 
terms  on  which  the  defendants  were  to  transport  the  merchandise, 
or  that  the  workman  had  authority  to  make  an  unusual  contract. 

The  same  remarks  apply  to  the  case  of  Perry  v.  Thompson,  98 
Mass.  249,  which  is  to  be  distinguished  from  the  case  at  bar  by  the 
fact  that,  in  the  previous  dealings  of  the  parties,  property  had  been 
received  and  carried  without  any  notice  relating  to  the  carrier's 
liability  having  been  given,  and  by  the  further  fact  that,  when  the 
notice  in  that  instance  was  received,  the  printed  parts  of  it  were  so 
covered  up  by  the  revenue  stamp  affixed  to  the  receipt  that  it  could 
not  be  read  intelligibly. 

So  in  Fillebrown  v.  Grand  Trunk  Eailway  Co. ,  55  Maine,  462,  it 
was  held  that,  when  a  verbal  contract  for  transportation  was  made 
without  restriction,  its  legal  effect  would  not  be  changed  by  the  con- 
ditions in  a  receipt  which  was  subsequently  given  to  the  clerk  of 
the  consignor,  who  delivered  the  goods  at  the  station,  but  who  had 
no  express  authority  either  to  deliver  or  to  contract  with  the 
defendants. 

These  cases  do  not  reach  the  case  at  bar,  where  the  delivery  of 
the,  receipt  was  directly  to  the  plaintiff;  nor  would  they  be  held 
decisive  in  a  case  where  the  delivery  was  made  and  the  receipt 
accepted  under  ordinary  circumstances  by  a  special  or  general  agent 

factory  when  the  package  was  delivered  to  the  defendant's  agent.  It  is  not  stated  that 
the  plaintiffs  or  either  of  them  ever  rend  the  paper  containing  the  alleged  regulations 
or  one  similar  to  it.  It  is  agreed  that  defendants  received  and  carried  like  packages 
of  merchandise  for  the  plaintiffs  at  or  about  the  time  when  the  one  in  controversy  was 
delivered  for  carriage  without  giving  the  plaintiffs  any  receipt  whatever  therefor,  and 
this  was  the  course  of  dealing  between  the  parties  in  a  large  majority  of  the  instances 
in  which  the  defendants  had  been  employed  by  the  plaintiffs.  From  this  it  would 
appear  that  the  ordinary  course  of  business  was  for  the  defendants  to  receive  mer 
dise  from  the  plaintiffs  without  attempting  to  limit  their  liability  as  carriers  in  any 
manner  whatever.  Under  such  ircumstances  we  cannot  fairly  infer  that  the  plaintiffs 
understood  that  by  the  delivery  of  a  receipt  for  the  merchandise  the  defendants  in- 
tended to  limit  the  liability  which  they  ordinarily  assumed  in  their  dealings  with  th« 
plaintiffs,  or  that  the  latter  understood  and  assented  to  the  contents  of  such  receipt  as 
fixing  the  terms  on  which  the  defendants  were  to  transport  the  merchandise. 


552  CAKRIERS    OF    GOODS. 

of  the  owner,  not  a  mere  servant  or  porter,  and  who  might  be 
regarded  as  clothed  with  authority  to  bind  the  owner  in  giving 
instructions  and  making  conditions  affecting  the  transportation. 
Squire  v.  New  York  Central  Railroad  Co.,   98  Mass.  239. 

Judgment  for  the  defendants.* 


SHELTON  v.  MERCHANTS'   DISPATCH,    etc.    CO. 

59  N.  Y.  258.     1874. 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  affirming  a  judgment  in  favor  of  plaintiff, 
entered  upon  the  report  of  a  referee. 

This  action  was  against  defendant  as  a  common  carrier,  for  failure 
to  deliver  goods  intrusted  to  it  for  transportation. 

The  referee  found  the  following  facts:  — 

That  on  the  2d  day  of  October,  1871,  the  plaintiff  purchased  at 
the  city  of  New  York,  of  the  firm  of  H.  B.  Claflin  &  Co.,  a  quantity 
of  goods,  and  directed  them  to  ship  the  same  to  him  at  Janesville, 
Wisconsin,  by  the  defendant's  line.  The  goods  so  purchased  were 
packed  by  Claflin  &  Co.,  were  by  them  marked  "H.  S.  Shelton, 
Janesville,  Wis.,"  and  were,  on  the  same  day,  by  them  delivered 
to  the  defendant,  at  its  depot  in  the  city.  At  the  time  of  such 
delivery,  H.  B.  Claflin  &  Co.  received  from  the  defendant  three 
receipts.     (A  copy  of  one  is  contained  in  opinion.)     On  tho  third 

i  ANCHOR  LINE  v.  DATER. 
68  111.  369.  1873. 

Breese,  Ch.  J •  # 

The  bill  of  lading  delivered  to  the  consignors  relieves  the  carrier  trdm  liability 
for  loss  by  fire,  while  the  property  is  in  transit  cr  while  in  depots,  etc. 

This  bill  of  lading,  appellants  insist,  was  the  contract  of  the  parties,  by  which  they 
are  bound,  and  the  provisions  of  which  are  plainly  and  easily  understood  by  any 
business  man,  and  the  assent  of  the  shipper  to  the  terms  contained  in  it  should  be 
presumed. 

The  court,  sitting  as  a  jury,  did  not  find  evidence  sufficient  to  justify  it  in  pre- 
suming assent  from  the  mere  acceptance  of  the  receipt.  The  shipper  had  no  alternative 
but  an  acceptance  of  it,  and  his  assent  to  its  conditions  cannot  be  inferred  from  that 
fact  alone.  It  is  in  proof  that  its  terms  and  conditions  were  not  known  to  these 
shippers,  although  they  had  accepted  a  large  number  of  them  in  the  course  of  their 
business  with  the  appellants. 

The  terms  and  conditions  of  this  bill  of  lading,  or  receipt,  were  inserted  for  the 
purpose  of  limiting  the  liability  appellants  were  under  by  the  common  law.  They 
should  appear  plainly  in  the  instrument,  be  understood  by  the  consignor,  and 
knowingly  accepted  as  the  contract  of  the  parties,  and  intended  to  evidence  the  terms 
of  the  contract.  These  were  points  for  the  court  trying  the  case,  and  the  finding 
of  the  court  in  this  respect  cannot  be  disturbed. 


LIMITATION    OF   LIABILITY.  553 

and  fourth  days  of  October,  Claflin  &  Co.  presented  the  receipts  at 
the  general  office  of  the  defendant,  and  on  the  same  or  following  day 
received  bills  of  lading  in  the  usual  and  customary  form  given  by 
defendant.     They  contained  this  clause:  — 

"To  be  forwarded  in  like  good  order  (dangers  of  navigation, 
collisions,  and  fire,  and  loss  occasioned  by  mob,  riot,  insurrection, 
or  rebellion,  and  all  dangers  incident  to  railroad  transportation, 
excepted)  to  Chicago  depot  only,  he  or  they  paying  freight  and 
charges  for  the  same  as  below." 

It  was  the  usual  custom  of  said  H.  B.  Claflin  &  Co.  to  mail 
receipts  or  bills  of  lading  to  their  consignees. 

The  packages  aforesaid  were  safely  and  with  all  due  care  and 
diligence  transported  to  Chicago,  and  arrived  there,  a  part  in  the 
evening  of  Saturday,  the  seventh  day  of  October,  and  the  remainder 
thereof  on  the  morning  of  Sunday,  the  eighth  day  of  October,  and 
were,  upon  their  arrival,  unloaded  into  a  freight-house  used  by  the 
defendants.  In  the  evening  of  the  eighth,  a  great  fire  occurred  in 
Chicago,  without  fault  or  negligence  on  the  part  of  the  defendant; 
that  said  packages  and  their  contents  were  consumed  and  entirely 
destroyed,  without  negligence  of  any  kind  on  the  part  of  the 
defendant. 

The  referee  was  requested  to  find  the  following  additional  facts, 
which  appeared  by  the  evidence :  — 

"That  the  said  A.  B.  Claflin  &  Co.  were,  on  the  said  2d  day  of 
October,  1871,  and  for  a  long  time  previous  thereto  had  been,  large 
shippers  of  goods  by  the  defendant's  line,  and  that  it  had  always 
been  their  custom  to  obtain  receipts  or  bills  of  lading  therefor." 

"  That  the  defendants  were,  at  the  time  mentioned  in  the  com- 
plaint, carriers  of  goods,  wares,  and  merchandise  for  him  between 
different  parts  of  the  United  States,  but  that,  in  October,  1871,  the 
terminus  of  the  route  of  defendant  from  the  city  of  New  York  in 
the  direction  of  Janesville,  Wisconsin,  was,  and  had  been  since  the 
10th  day  of  March,  1871,  Chicago,  Illinois,  and  that  transportation 
beyond  Chicago,  in  the  direction  of  and  to  Janesville  aforesaid,  had 
to  be  performed  by  separate  and  independent  carriers,  and  the 
charges  of  transportation  beyond  Chicago  were  paid  to  such  carriers 
by  the  owners  of  the  property  transported  in  addition  to  the  amount 
paid  to  defendant  for  transportation  to  Chicago  aforesaid." 

The  referee  refused  so  to  find,  as  immaterial,  and  defendant's 
counsel  excepted. 

Johnson,  J.  The  referee  refused  to  find  that,  previous  to  the 
shipment  in  question,  H.  B.  Claflin  &  Co.  had  been  large  shippers 
by  the  defendant's  line,  and  had  been  always  accustomed  to  obtain 
bills  of  lading  for  the  goods  shipped;  and  also  that  the  defendants 
were  carriers  upon  a  route  terminating  at  Chicago,  and  not  extend- 
ing to  Janesville,  Wisconsin;  and  that  between  the  latter  points 
transportation   had  to  be  performed  by  separate   and    independent 


554  CARRIERS   OF    GOODS. 

carriers.  These  matters  the  referee  refused  to  find,  on  the  ground 
that  they  were  immaterial  to  the  rights  of  the  parties.  In  this  we 
think  he  erred,  and  for  the  following  reasons:  Claflin  &  Co.  were 
the  agents  of  the  plaintiff  in  respect  to  the  transportation  of  the 
goods  in  question.  His  directions  to  them  were  to  ship  the  goods  to 
him  at  Janesville,  Wisconsin,  by  the  defendant's  line.  The  extent 
of  the  authority  thus  conferred,  was  considered  in  Kelson  v.  Hudson 
River  Railroad  Company,  48  N.  Y.  498.  It  necessarily  extends  to 
the  making  of  such  contracts  as  the  agents,  in  the  honest  exercise 
of  their  discretion,  see  fit  to  make.  The  fact  that  the  carriers  and 
the  agents  emjdoyed  have  a  habitual  course  of  dealing  in  respect  to 
contracts  for  transportation,  is  a  material  and  important  element  in 
determining  the  construction  to  be  put  on  their  acts  in  any  particu- 
lar case.  Mills  v.  Mich.  Cent.  Eailroad,  45  N.  Y.  622.  The 
delivery  by  the  agents  of  the  plaintiff,  to  the  carriers,  was  made 
upon  no  particular  agreement  made  at  the  time.  The  packages  were 
marked  with  the  address  of  the  plaintiff,  and  receipts  were  signed 
by  the  agents  of  the  defendants,  at  their  receiving  depot  at  New 
York.  These  receipts  were  in  a  bound  receipt-book  belonging  to 
Claflin  &  Co.,  filled  up  by  them,  and  signed  by  the  agents  of  the 
defendants.  They  purport  to  be  receipts,  and  not  •  contracts  for 
carriage.  They  were  in  the  following  form:  "New  York,  Oct.  2, 
1871.     Received  from  H.  B.  Claflin  &  Co.,  in  good  order  on  board 

the  M.  D.  for the  following  packages,  one  case  D.  G.  marked 

H.  S.  Shelton,  Janesville,  Wis.,"  and  were  signed  "Gleason."     In 
a  day  or  two,  but  after  the  packages  had  been  started  on  their  way, 
the  agents  of  the  plaintiff,  acting  in  accordance  with  the  habitual 
mode  of  doing  this  business,  sent  the  receipts  to  the  defendant's 
office,   and  procured  bills   of  lading  for  the  goods,  the  giving  of 
which  was  entered  on  the  several  receipts.     These  bills  of  lading 
expressed  the  actual  contract  of  carriage  between  the  parties  who 
in   fact  made  the  contract,   the  defendants  on  the  one  hand,   and 
H.  B.  Claflin  on  the  other.     When  the  goods  were  delivered  and  the 
primary  receipts  given,  each  of  the  parties  was  acting  in  a  habitual, 
method,    and   with   a   habitual   understanding   of   what  they  were 
engaged  in  doing.     The  receipts  were  presented  and  signed  with 
the  view  and  expectation  on  both  sides  that'  bills  of  lading  were  in 
the  usual  course  to  be  subsequently  issued,  expressing  the  intentions 
and  engagements  of  the  parties.     This  was  their  method  of  dealing, 
distinctly  in  their  contemplation  from  the  beginning,  reasonable  in 
itself  and  completely  within  the  authority  committed  by  the  plain- 
tiffs to  his  agents,  H.  B.  Claflin  &  Co.     Any  attempt  on  their  part 
to  claim  a  different  agreement  would  have  been  an  act  of  bad  faith ; 
because  it  would  have   been  a  departure   from  the   understanding 
based  upon  the  previous  course  of  dealing  of  these  parties.     In  the 
view  we  take  of  the  relations  and  acts  of  these  parties,  the  matters 
of  fact  which  the  referee  held  to  be  immaterial  were  plainly  mate- 


LIMITATION   OF   LIABILITY.  555 

rial,  because  they  were  essential  to  the  disclosure  of  the  actual 
contract  of  the  parties.  The  bills  of  lading  were  obtained  by  the 
plaintiff's  agents,  in  the  exercise  of  their  original  authority  to 
contract  with  the  defendants  for  transportation,  and  these  con- 
trolled the  rights  of  the  parties  and  displaced  the  common-law 
relation,   which  otherwise  might  have  existed  between  them. 

The  order  of  time  in  which  the  business  was  actually  transacted 
cannot   be  allowed  to  affect  the  rights  of  the  parties.     If  H.    B. 
Claflin  &  Co.  were  originally  authorized  to  ship  on  bills  of  lading 
limiting  the  common-law  liability  of  the  defendants,  the  fact  that 
receipts  were  taken  in  one  stage  of  the  business,  intended  by  neither 
party  as  completing  their  dealing  or  contract,  did  not  exhaust  the 
authority.     It  was  never  so  intended  and  cannot  have  that  effect. 
The  acts  of  the  parties  must  have  operation  as  they  were  intended 
by  the  parties  when  they  were  done.     The  bills  of  lading  excepted 
the  risk  of  fire,  and  as  it  was  by  that  danger  that  the  property  in 
question  was  destroyed,  the  defendants  are  free  from  liability,  at 
least  unless  the  loss  was  due  to  their  negligence  or  fault.     The  only 
suggestion  of  fault  is  that  the  cars  containing  these  packages  were 
unloaded  on  Sunday  in  Chicago.     The  case  does  not  inform  us  that 
by  the  law  of  Illinois,  where  the  loss  happened,  unloading  cars  on 
Sunday  was  unlawful,  and  we  have  no  means  of  knowing  such  to  be 
the  fact,  in  respect  to  the  laws  of  that  State.     The  common  law,  at 
least,  teaches  no  such  doctrine. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  costs  to 
abide  the  event. 


f.  Available  to  Connecting  Carrier. 

BABCOCK  v.    LAKE   SHORE,    etc.    R.    CO. 
49  N.  Y.  491.     1872. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  department,  affirming  a  judgment  for 
the  defendant  entered  on  decision  of  the  court  upon  trial  without  a 
jury.     Rep.  below,  43  How.  Pr.  R.  317. 

The  action  was  brought  to  recover  the  value  of  a  quantity  of 
petroleum  oil  destroyed  by  fire  while  in  possession  of  defendant  as 
common  carrier. 

On  November  14,  1867,  the  plaintiff  shipped  fifty-six  barrels  of 
refined  petroleum,  at  Oil  City,  in  the  State  of  Pennsylvania,  by  the 
Atlantic  and  Great  Western  Railway  Company,  under  an  agreement, 
of  which  the  following  is  a  copy:  — 


556  CARRIERS    OF   GOODS. 

"Atlantic  and  Great  Western  Railway,  7.35. 

"  Oil  City  Station,  November  14,  1867. 

"  Received  from  Babcock  for  shipment  by  The  Atlantic  and  Great 

Western  Railway  Company,  the  following  property  in  good  order, 

except  as  noted,  marked,  and  consigned  as  follows :  — 

Mark.  Article. 

J.  W.  0.  &  Co.  ) 

J.  W.  Osburn  &  Co.  I  56  Bbls.  R.  Oil,  Car  1,848. 

Albany,  N.  Y.  ) 

(  5  Cent  Internal  Revenue  ) 
(  Stamp,  cancelled.        ) 

"Rate  in  cents  per  100  lbs.     $25.00  per  car. 

"Which  this  company  and  connecting  roads  agree  to  deliver  with 
as  reasonable  despatch  as  their  general  business  will  permit,  delays 
and  accidents  excepted,  but  they  do  not  agree  to  transport  the  same 
by  any  particular  train,  nor  in  any  specified  time." 

"  Subject  to  the  conditions  below : 

"At  Corry  station  upon  payment  of  freight  and  charges  thereon. 

"  In  consideration  of  the  reduced  rate  given  and  specified  above 
for  the  transportation  of  petroleum,  it  is  understood  that  the  owner 
or  shipper  assumes  all  risk  of  damage  from  fire  or  leakage  or  from 
any  cause  whatever  while  in  transit,  or  at  the  depots  or  stations  of 
any  of  the  companies  whose  lines  of  road  it  may  be  transported  upon 
or  over. 

"The  rates  on  petroleum,  when  taken  at  the  companies'  risk,  or 
damage  from  fire  or  other  causes,  being  double  the  amount  herein 
specified.  'The  owner  or  shipper  of  this  property,  in  consideration 
of  having  the  same  transported  at  such  reduced  rates,  does  hereby 
release  this  and  all  other  companies  over  whose  lines  of  roads  it  may 
pass,  from  all  claim  for  loss  or  damage  by  fire,  leakage,  or  any  other 
cause  whatever,  such  products  of  petroleum  as  naphtha,  benzine, 
benzole,  etc.,  etc.,  being  exceedingly  hazardous,  will  not  be  trans- 
ported except  by  special  agreement  as  to  time  of  receiving  and  rates 
to  be  charged;  and  any  party  shipping  such  articles,  without  notify- 
ing the  company  and  getting  their  consent,  shall  not  only  forfeit 
all  claim  against  the  company  for  damages  sustained,  but  shall  be 
accountable  to  the  company  for  loss  it  may  sustain  in  consequence 
thereof. 

"'The  acceptance  of  this  receipt  by  the  owner  or  shipper  will  be 
considered  as  evidence  of  his  assent  to  all  the  conditions  contained 
therein.' 

"D.  W.  Gtjrnsey,  Jr.,  Agent." 

The  price  stated  in  the  contract  was  the  customary  price  for  the 
transportation  of  freight  from  Oil  City  to  Corry. 

That  company  carried  the  petroleum  to  Corry,  and  there  delivered 
it  to  The  Buffalo  and  Pittsburg  Railroad  Company,  which  company 


LIMITATION   OF   LIABILITY.  557 

carried  it  to  Brocton,  in  this  State,  and  delivered  it  to  the  Buffalo 
and  Erie  Railroad  Company,  of  which  company  defendant  is  suc- 
cessor and  liable  for  its  debts  and  obligations.  While  in  possession 
of  the  Buffalo  and  Erie  Railroad  Company,  the  oil  was  destroyed  by 
fire. 

Allen,  J.  To  exempt  the  defendant,  the  successor  in  liability 
to  the  Buffalo  and  Erie  Railroad  Company,  from  the  common-law 
responsibility  of  common  carriers,  extending  to  all  losses  except 
those  resulting  from  the  act  of  God  or  the  public  enemies,  it  must 
appear  that  the  oil  of  the  plaintiff  was,  at  the  time  of  its  destruc- 
tion, in  the  possession  of  the  Buffalo  and  Erie  Railroad  Company, 
for  transportation  under  a  special  contract,  restricting  the  liability 
of  the  carrier,  made  by  and  with  the  plaintiff,  or  some  one  author- 
ized to  act  in  his  behalf.  The  contract  with  the  Atlantic  and  Great 
Western  Railway  Company  was  special  in  its  terms,  and  by  it  the 
liabilities  of  the  carrier  were  greatly  restricted,  and  a  loss  by  fire 
was  excepted  from  the  risk  of  the  carrier,  and  if  that  was  a  through 
contract,  —  that  is,  a  contract  for  the  carriage  of  the  property  to  and 
a  delivery  of  it  at  Albany,  its  ultimate  destination, —  each  carrier  in 
the  course  of  its  transit,  including  the  Buffalo  and  Erie  Railroad 
Company,  was  entitled  to  the  benefit  of  the  exemptions  from  liabil- 
ity secured  by  it.  It  would  be  regarded  as  made  for  the  benefit  of 
all  who  undertake  the  carriage  of  the  goods  upon  the  terms  and 
conditions  prescribed  by  it. 

If  it  was  not  a  through  contract,  then  the  Buffalo  and  Erie 
Railroad  Company  received  the  goods  as  common  carriers,  and  are 
liable  as  such  for  all  losses  not  within  the  recognized  exceptions; 
that  is,  except  those  which  were  inevitable  or  occasioned  by  public 
enemies. 

If  the  first  carrier,  the  Atlantic  and  Great  Western  Railway 
Company,  onl}r  undertook  for  the  carriage  of  the  oil  to  Corry  for  an 
agreed  compensation,  and  the  delivery  at  that  place  to  another 
carrier,  there  was  no  authority  resulting  from  the  relation,  or  the 
contract  between  that  company  and  the  plaintiff,  to  enter  into  a 
special  contract,  in  behalf  of  the  plaintiff,  with  the  next  carrier  at 
Corry,  to  limit  and  restrict  the  liability  of  such  carrier  in  any 
respect.  There  was  no  agency  created;  the  whole  duty  of  the 
Atlantic  and  Great  Western  Railway  Company  was  that  of  carrier, 
and  terminated  with  the  delivery  of  the  goods  to  the  next  carrier, 
and  the  common-law  liability  of  the  carrier  receiving  the  goods 
attached  at  once  and  by  necessary  implication  upon  their  receipt. 

The  goods  were  received  by  the  Atlantic  and  Great  Western  Rail- 
way Company  at  Oil  City,  in  Pennsylvania,  addressed  to  J.  W.  O.  & 
Co.,  Albany,  New  York,  and,  had  they  been  received  without  special 
contract,  a  contract  would  not  have  been  implied  on  the  part  of  the 
railway  company  to  carry  the  goods  or  provide  for  their  can 
beyond  the  terminus  of  its  road.     Its  whole  duty  would  have  been 


558  CARRIERS    OF    GOODS. 

performed  by  transporting  them  to  the  extent  of  its  own  route  and 
delivering  them  to  the  next  connecting  carrier;  that  is,  the  railway 
company  would  have  been  liable  as  a  carrier  over  its  own  road  and 
as  a  forwarder  from  the  terminus  of  its  line.     This  is  the  recognized 
rule  in  this  and  other  States,  although  it  is  otherwise  in  England. 
Eoot  v.  Great  Western  Railway  Co.,  45  X.  Y.    524,  and  cases  cited 
by  Rapallo,  J.,  Redfield  on  Carriers,  §  181,  and  cases  cited  in  note 
9.     But  the  goods  were  received  by  the  Atlantic  and  Great  Western 
Railway  Company  under  special  contract,  and  upon  the  interpreta- 
tion of  that  contract  and  the  effect  to  be  given  to  it  the  decision 'of 
this  case  hinges.     In  the  agreement  the  goods  were   described   as 
"56bbls.   R.   Oil,  Car  1,848,"  and  in  the  margin  "mark,  J.  W.  O. 
&  Co.,  J.  W.   Osborne  &  Co.,  Albany,  N.  Y."     The  mark  or  direc- 
tion of  the  property  was  given  to  identify  and  distinguish  it  from 
other   property  of  the   same  character,   and  was  not  inserted  as  a 
part   of  the  agreement,  and  from  it  a  contract  to  carry  to  Albany 
would  not  be  implied.     The  agreement  was  by  "this  (The  A.  &  G. 
W.  R.)  company  and  connecting  roads,"  to  deliver  the  property  at 
Corry  station,  which  was  the  terminus  of  the  road  of  that  company, 
upon    payment  of  freight   and  charges  thereon.     The  freight  was 
specified  at  twenty-five  dollars  per  car.     This  was  the  freight  to 
Corry,  and  no  rate  was  agreed  upon  or  specified  for  transportation 
beyond  that  place.     By  the  agreement  the  plaintiff,  "in  considera- 
tion of  the  reduced  rates  given  and  specified  above  for  the  transpor- 
tation of  petroleum,"  assumed  certain  risks,  including  that  by  which 
the   property   was  destroyed,    "while   in  transit,    or  the  depots  or 
station  of  any  of  the  companies  whose  lines  of  road  it  may  be  trans- 
ported upon  or  over." 

The  plaintiff  did,  "in  consideration  of  having  the  petroleum 
transported  at  such  reduced  rates,"  release  the  A.  &  G.  W.  R.  Co. 
and  all  other  companies  over  whose  lines  of  roads  it  may  pass,  from 
"all  claim  from  loss  or  damage  by  fire,"  etc.  The  agreement  was 
made  by  filling  up  a  printed  form  adapted  to  a  contract  for  the 
transportation  of  goods  beyond  the  route  of  the  contracting  carrier, 
and  over  the  lines  of  other  and  connecting  roads  to  distant  places. 
The  parties  merely  inserted  in  writing  the  date  and  place  of  ship- 
ment, the  name  of  the  owner,  the  description  of  the  property,  the 
freight  and  the  place  of  delivery  (Corry  station).  The  commence- 
ment and  termination  of  the  responsibility  of  the  carrier  (The  A.  & 
G.  W.  R.  Co.)  were  expressed  clearly  and  distinctly  in  the  written 
parts  of  the  contract. 

The  goods  were  not  lost  or  destroyed  between  the  place  of  their 
receipt  and  Corry,  nor  until  after  they  had  left  Corry  in  charge  of 
other  carriers  and  had  come  into  the  possession  of  the  Buffalo  and 
Erie  Railway  Company,  in  the  course  of  their  transit  to  Albany. 
The  contract  was  for  the  carriage  of  the  oil  to  Corry,  and  only  so 
much  of  the  printed  matter  of  the  blank  form  used  as  is  consistent 


LIMITATION    OF    LIABILITY.  559 

with  and  appropriate  to  that  contract  is  of  any  effect.  The  intent 
of  the  contracting  parties  is  to  be  gathered  from  the  entire  instru- 
ment, the  written  part  controlling  where  that  and  the  printed  are  in 
conflict,  and  the  latter  to  be  rejected  when  incompatible  with  or 
inappropriate  to  the  intent  of  the  parties,  as  clearly  indicated  by 
the  written  portion.  The  printed  form  is  very  general,  and  contains 
provisions  adapted  to  contracts  differing  essentially  from  this,  some 
of  which  are  not  adapted  to  a  contract  for  the  carriage  of  goods 
wholly  within  the  limits  of  the  contracting  carriers'  line  of  road, 
and  such  parts  as  are  inapplicable  must  be  rejected  as  surplusage, 
and  the  written  portion  of  the  agreement  prevail.  Leeds  v. 
Mechanics'  Ins.  Co.,  4  Seld.  351;  Harper  v.  Albany  Mutual  Ins. 
Co.,  17  N.  Y.  194.  The  limitation  of  the  carrier's  liability  by 
the  contract  is  necessarily  confined  to  the  service  contracted  for, 
and  the  carriers  who  were  parties  to  it. 

Carriers  who  are  not  named  in  a  contract  for  the  carriage  of 
goods,  and  who  are  not  formal  parties  to  it,  may,  under  certain  cir- 
cumstances, have  the  benefit  of  it.  Such  is  the  case  when  a  contract 
is  made  by  one  of  several  carriers  upon  connecting  lines  or  routes 
for  the  carriage  of  property  over  the  several  routes  for  an  agreed 
price  by  authority,  express  or  implied,  of  all  the  carriers.  So,  too, 
in  the  absence  of  any  authority  in  advance,  or  any  usage  from  which 
an  authority  might  be  inferred,  a  contract  by  one  carrier  for  the 
transportation  of  goods  over  his  own  and  connecting  lines,  adopted 
and  acted  upon  by  the  other  carriers,  would  enure  to  the  benefit  of 
all  thus  ratifying  it,  and  performing  service  under  it.  But  in  such 
and  the  like  cases  the  contract  has  respect  to  and  provides  for  the 
services  of  the  carriers  upon  the  connecting  routes.  Maghee  v.  The 
Camden  &  Amboy  E.  Trans.  Co.,  45  N.  Y.  514,  and  Lamb  v.  Same, 
46  1ST.  Y.  272,  are  in  point,  and  illustrate  the  rule. 

There  was  no  agreement  here  for  the  carriage  of  the  oil  beyond 
Corry,  no  rate  of  freight  agreed  upon  to  any  other  point,  and  the 
carrier  was  entitled  to  receive  the  freight  earned,  twenty-five  dollars 
per  car,  on  delivery  of  the  oil  at  that  place.  There  was  no  consid- 
eration for  an  agreement  by  the  plaintiff  to  relieve  the  carriers 
who  should  thereafter  receive  the  property  for  transportation  from 
the  common-law  liabilities,  and  no  such  an  agreement  was  made. 
It  is  claimed  that  the  finding  of  the  judge  by  whom  the  cause  was 
tried,  that  the  Buffalo  and  Erie  Railroad  Company  received  the 
property,  "  under  and  in  pursuance  of  said  agreement,  upon  its  said 
railroad  from  Brocton  to  Buffalo,"  is  conclusive  as  a  finding  of  fact, 
and  entitles  the  defendant  absolutely  to  the  benefit  of  the  stipulations 
of  that  contract.  The  answer  is  that  the  transportation  from  Brocton 
to  Buffalo  is  not  within  the  limits  of  the  contract,  and  it  was  simply 
impossible  that  goods  could  be  carried  between  those  places  in  pur- 
suance of  a  contract  expressly  providing  for  an  entirely  different 
transportation,  or  a  transportation  between  two  other  places  on  a 


560  CAKKIERS   OF   GOODS. 

different  route.  While  twenty-five  dollars  per  car  freight  might 
have  been  a  reasonable  or  a  reduced  rate  for  transportation  from  Oil 
City  to  Corry,  it  may  have  been  an  entirely  inadequate  or  an  exorbi- 
tant rate  for  transporting  the  same  property  from  Corry  to  Brocton, 
from  Brocton  to  Buffalo,  or  Buffalo  to  Albany.  It  is  certainly 
improbable  that  the  same  freight  was  to  be  the  compensation  to 
each  of  the  railroad  companies  by  whom  the  oil  should  be  carried 
in  its  transit  to  Albany. 

The  contract  was  not  intended  as  a  through  contract.  The  plain- 
tiff has  no  claim  imder  it  either  against  the  Atlantic  and  Great 
Western  Railway  Company  or  any  of  the  connecting  roads  for  the 
carriage  of  the  goods  beyond  Corry,  and  it  necessarily  follows  that 
its  stipulations  did  not  extend  to  or  affect  the  carriage  beyond  that 
place. 

The  Camden  and  Amboy  R.  &  T.  Co.  were  held  liable  as  common 
carriers  under  a  contract  somewhat  like  this,  made  with  the  Penn- 
sylvania Railroad  Company,  under  which  the  goods  were  transported 
by  the  latter  company  to  Philadelphia  and  there  delivered  to  the 
former  company.     C.  &  A.  R.  &  T.  Co.  v.  Forsythe,  61  Penn.  R.  81. 

Bristol  &  Exeter  Railway  Co.  v.  Cummings,  5  H.  and  N.  969, 
merely  held,  carrying  out  the  doctrine  of  Muschamp  v.  The  Lancaster 
&  Preston  Junction  Railway  Co.,  8  M.  and  W.  421,  which  has  not 
been  followed  in  this  State,  that  the  contract  of  carriage  in  that 
case  was  a  through  contract  made  by  the  Great  Western  Railway 
Co.  for  the  carriage  of  the  goods  to  their  ultimate  destination,  and 
that  the  contracting  carrier  was  solely  liable  for  the  loss  of  the  goods 
in  transit,  although  they  were  lost  while  in  course  of  transportation 
by  the  defendant  who  received  them  from  the  first  carrier  at  the 
terminus  of  its  road  for  transportation  to  the  place  to  which  they 
were  directed.  This  case  would  not  be  followed  with  us,  but  each 
carrier  would  be  held  responsible  for  a  loss  or  damage  to  the  goods 
while  in  his  custody,  and  the  only  question  would  be  as  to  the  extent 
of  his  liability,  and  whether  he  was  entitled  to  the  benefit  of  any 
stipulations  in  the  contract  made  with  the  first  carrier. 

The  defendant,  upon  the  case  made  and  facts  found  by  the  judge 
at  the  trial,  was  subject  to  all  the  common-law  liabilities  of  carriers, 
and  the  stipulations  of  the  contract  with  the  Atlantic  and  G.  W.  R. 
Co.  did  not  extend  to  the  transportation  of  the  goods  by  the  defend- 
ant. It  is  not  necessary  to  consider  at  this  time  the  liability  of 
the  parties,  in  case  it  should  appear  that  the  oil  was  being  carried 
at  a  reduced  rate  of  freight. 

Judgment  must  be  reversed  and  a  new  trial  granted.1 

i  KIFF  v.  ATCHISON,  TOPEKA  &  SANTA  FE  R.  CO. 
32  Kan.  263.     1884. 

HURD,  J 

The  evidence  shows  that  on  April  28th,  1883,  the  Cleveland  Co-operative  Stove 


THE    BILL   OF   LADING.  561 

6.    THE  BILL   OF   LADING. 

a.  As  a  Contract. 

THE   DELAWARE. 

14  Wall.  (U.  S.)  579.     1871. 

Appeal  from  the  Circuit  Court  of  the  District  of  California,  the 
case  being  thus :  — 

The  Oregon  Iron  Company,  on  the  8th  day  of  May,  1868,  shipped 
on  board  the  bark  "Delaware,"  then  at  Portland,  Oregon,  76  tons  of 
pig-iron,  to  be  carried  to  San  Francisco,  at  a  freight  of  $4.50  a  ton. 
The  bill  of  lading  was  in  these  words :  — 

"  Shipped,  in  good  order  and  condition,  by  Oregon  Iron  Company,  on 
board  the  good  bark  '  Delaware,'  Shillaber,  master,  now  lying  in  the  port  of 
Portland,  and  bound  to  San  Francisco,  to  say  seventy-five  tons  pig-iron,  more 

Company,  of  St.  Louis,  delivered  to  the  Missouri  Pacific  Railway  Company,  in 
St.  Louis,  the  stoves  in  question,  to  be  by  it  transported  to  Hutchinson,  Kansas, 
and  there  delivered  to  plaintiff.  The  railroad  company,  on  delivery  of  the  stoves, 
delivered  to  the  shippers  a  duplicate  receipt,  of  which  the  following  is  a  copy  :  — 

"  St.  Louis,  April  28th,  1883. 
"  Received  from  the  Cleveland  Co-operative  Stove  Company,    St.  Louis   Branch, 
2900  Eleventh  Street,  by  Mo.  Pac.  R.  R.,  the  following  property,  to  be  delivered  in 
like  good  order,  as  addressed,  without  delay,  at  consignor's  risk  : 

FOR    G.    B.    KIFF,    ESQ.,    HUTCHINSON,    KANSAS. 


Articles. 


3  cooking  stoves. 

3  stove  sections,  weight  690,   W. 


Marks. 


K. 


Owner's  risk. 

"  This  duplicate  dray  ticket  is  sent  you  as  a  memorandum  by  which  to  check  off 
goods.  If  the  stoves,  bundles,  pieces,  etc.,  do  not  agree  with  this,  or  the  freight  bill 
is  overcharged,  please  return  to  us  your  freight  bill  at  once,  with  this,  noting  thereon 
the  charges,  and  we  will  attend  to  the  matter  with  pleasure  promptly." 

This  receipt  is  the  only  contract  for  transportation  of  the  stoves  shown  by  the 
evidence,  and  under  it  they  were  transported,  and  on  their  arrival  in  Hutchinson  were 
•  found  to  be  broken  and  damaged.  The  evidence  shows  that  the  stoves  were  carried  by 
the  Missouri  Pacific  Railway  Company  over  a  portion  of  its  line  and  delivered  to  the 
San  Francisco  Railroad  Company,  which  carried  them  to  Emporia,  and  there  delivered 
them  to  defendant,  which  carried  them  to  Hutchinson.  Each  of  these  connecting 
lines  of  transportation  is  entitled  to  the  benefit  of  the  special  contract  between  the 
shippers  and  the  Missouri  Pacific  Railway  Company,  and  either  of  them,  when  sued, 
may  claim  the  exemption  of  the  contract.  Whitworth  et  al.  v.  Erie  Railway  Co., 
87  N.  Y.  414. 


562  CARRIEKS    OF   GOODS. 

or  less  (contents,  quality,  and  weight  unknown),  being  marked  as  in  the 
margin,  and  are  to  he  delivered  in  like  good  order  and  condition  at  the 
aforesaid  port  of  San  Francisco,  at  ship's  tackles  (the  dangers  of  the  seas, 

fire,  and  collision  excepted)  unto ,  or  assigns,  he  or  they  paying  freight 

for  the  said  goods  in  United  States  gold  coin  (before  delivery,  if  required)  as 
per  margin,  with  5  per  cent,  primage  and  average  accustomed. 

"  In  witness  whereof  the  master  or  agent  of  said  vessel  hath  affirmed  to 
three  bills  of  lading,  all  of  this  tenor  and  date  ;  one  of  which  being  accom- 
plished,   the   others  to  stand   void.     Vessel   not   accountable   for   breakage, 

leakage,  or  rust. 

"  C.  E.  Shillaber, 

"  Portland,  May  8th,  1868.  For  the  Captain." 

The  iron  was  not  delivered  at  San  Francisco;  and  on  a  libel  filed 
by  the  Iron  Company,  the  defence  set  up  was  that  by  a  verbal  agree- 
ment made  between  the  Iron  Company  and  the  master  of  the  ship 
before  the  shipment  or  the  signing  of  the  bill  of  lading,  the  iron 
was  stowed  on  deck,  and  that  the  whole  of  it,  with  the  exception  of 
6  tons  and  90  lbs. ,  had  been  jettisoned  in  a  storm. 

On  the  trial,  the  owners  of  the  vessel  offered  proof  of  this  parol 
agreement.  The  Hbellants  objected,  and  the  court  excluded  the 
evidence  on  the  ground  that  parol  proof  was  inadmissible  to  vary 
the  bill  of  lading ;  and  decreed  in  favor  of  the  libellants  for  the  iron 
that  was  thrown  overboard.  On  appeal  the  case  was  disposed  of  in 
the  same  way  in  the  Circuit  Court.  It  was  now  here;  the  question 
being,  as  in  the  two  courts  below,  whether  in  a  suit  upon  a  bill  of 
lading  like  the  one  here,  for  non-delivery  of  goods  stowed  on  deck, 
and  jettisoned  at  sea,  it  is  competent,  in  the  absence  of  a  custom  to 
stow  such  goods  on  deck,  to  prove  by  parol  a  verbal  agreement  for 
such  stowage. 

Mr.  Justice  Clifford.         .....•• 

Seventy-five  tons  of  pig-iron  were  shipped  by  the  libellants,  on 
the  8th  day  of  May,  1868,  on  board  the  bark  "Delaware,"  then 
lying  in  the  port  of  Portland,  Oregon,  to  be  transported  from  that 
port  to  the  port  of  San  Francisco,  for  the  freight  of  four  dollars  and 
fifty  cents  per  ton,  to  be  delivered  to  the  shippers  or  their  assigns 
at  the  port  of  destination,  they  paying  freight  as  therein  stipulated, 
before  delivery  if  required,  with  five  pex  cent  primage  and  average- 
accustomed.  Dangers  of  the  seas,  fire,  and  collision  were  excepted 
in  the  bill  of  lading,  and  the  statement  at  the  close  of  the  instru- 
ment was,  "vessel  not  accountable  for  breakage,  leakage,  or  rust." 

Process  was  served,  and  the  claimant  appeared  and  filed  an  answer 
in  which  he  admits  the  shipment  of  the  iron  and  the  execution  of 
the  bill  of  lading  exhibited  in  the  record.  Sufficient  also  appears 
in  the  record  to  show  that  the  voyage  was  performed  and  that  but  a 
small  portion  of  the  iron  shipped  —  to  wit,  some  thirteen  or  fourteen 
thousand  pounds  —  was  ever  delivered  to  the  consignees,  and  that  all 
the   residue  of  the  shipment  was  thrown  overboard  as  a  jettison 


THE    BILL    OF   LADING.  5(33 

during  the  voyage,  which  became  necessary  by  a  peril  of  the  sea 
for  the  safety  of  the  other  associate  interests  and  for  the  preserva- 
tion of  the  lives  of  those  on  board.  Sacrificed  as  all  that  portion 
of  the  shipment  was  as  a  jettison  in  consequence  of  a  peril  of  the 
sea,  excepted  in  the  bill  of  lading,  the  claimant  insists  that  the 
libellants  have  no  claim  against  the  ship,  and  that  the  libellants  as 
the  shippers  of  the  iron  must  bear  their  own  loss. 

Evidence  was  exhibited  by  the  claimant  sufficient  to  show  that 
the  allegations  of  the  answer  that  the  iron,  not  delivered,  was  sacri- 
ficed during  the  voyage  as  a  jettison  in  consequence  of  a  peril  of  the 
sea,  are  true,  but  the  libellants  allege  that  the  iron  was  improperly 
stowed  upon  the  deck  of  the  vessel,  and  that  the  necessity  of  sacri- 
ficing it  as  a  jettison  arose  solely  from  that  fact,  and  that  no  such  a 
necessity  would  have  arisen  if  it  had  been  properly  stowed  under 
deck,  as  it  should  have  been  by  the  terms  of  the  contract  specified 
in  the  bill  of  lading.  That  the  iron  not  delivered  was  stowed  on 
deck  is  admitted,  and  it  is  also  conceded  that  where  goods  are 
stowed  in  that  way  without  the  consent  of  the  shipper  the  carrier  is 
liable  in  all  events  if  the  goods  are  not  delivered,  unless  he  can 
show  that  the  goods  were  of  that  description,  which,  by  the  usage 
of  the  particular  trade,  are  properly  stowed  in  that  way,  or  that  the 
delivery  was  prevented  by  the  act  of  God  or  the  public  enemy,  or 
by  some  other  cause  or  accident,  without  any  fault  or  negligence  on 
the  part  of  the  carrier  and  expressly  excepted  in  the  bill  of  lading. 

Goods,  though  lost  by  perils  of  the  sea,  if  they  were  stowed  on 
deck  without  the  consent  of  the  shipper,  are  not  regarded  as  goods 
lost  by  the  act  of  God  within  the  meaning  of  the  maritime  law,  nor 
are  such  losses  regarded  as  losses  by  perils  of  the  sea  which  will 
excuse  the  carrier  from  delivering  the  goods  shipped  to  the  con- 
signee unless  it  appears  that  the  manner  in  which  the  goods  were 
stowed  is  sanctioned  by  commercial  usage,  or  unless  it  affirmatively 
appears  that  the  manner  of  stowage  did  not,  in  any  degree,  con- 
tribute to  the  disaster;  that  the  loss  happened  without  any  fault  or 
negligence  on  the  part  of  the  carrier,  and  that  it  could  not  have 
been  prevented  by  human  skill  and  prudence,  even  if  the  goods  had 
been  stowed  under  deck,  as  required  by  the  general  rules  of  the 
maritime  law.1 

Enough  appears  in  the  record  to  show  that  all  the  iron  not 
delivered  to  the  consignees  was  stowed  on  deck,  and  there  is  no 
proof  in  the  case  to  show  that  the  usage  of  the  trade  sanctioned  such 
a  stowage  in  this  case,  or  that  the  manner  in  which  it  was  stowed 
did  not  contribute  both  to  the  disaster  and  to  the  loss  of  the  goods.2 

None  of  these  principles  are  controverted  by  the  claimant,  but  he 
insists  that  the  iron  not  delivered  was  stowed  on  deck  by  the  consent 
of  the  shippers  and  in  pursuance  of  an  oral  agreement  between  the 

1  Lawrence  et  al.  v.  Minturn,  17  Howard,  114  ;  The  Peytona,  2  Curtis.  23. 

2  Gould  v.  Oliver,  4  Bingham's  New  Cases,  142 ;  Story  on  Bailment,  §  531. 


564  CARRIERS    OF    GOODS. 

carrier  and  the  shippers  consummated  before  the  iron  was  sent  on 
board,  and  before  the  bill  of  lading  was  executed  by  the  master. 
Pursuant  to  that  theory,  testimony  was  offered  in  the  District  Court 
showing  that  certain  conversations  took  place  between  the  consignee 
of  the  bark  and  the  agent  of  the  shippers  tending  to  prove  that  the 
shippers  consented  that  the  iron  in  question  should  be  stowed  on 
the  deck  of  the  vessel.  Whether  any  express  exceptions  to  the 
admissibility  of  the  evidence  was  taken  or  not  does  not  distinctly 
appear,  but  it  does  appear  that  the  question  whether  the  evidence 
was  or  not  admissible  was  the  principal  question  examined  by  the 
District  Court,  and  the  one  upon  which  the  decision  in  the  case 
chiefly  turned.  Apparently  it  was  also  the  main  point  examined  in 
the  Circuit  Court,  and  it  is  certain  that  it  has  been  treated  by  both 
sides  in  this  court  as  the  principal  issue  involved  in  the  record,  and 
in  view  of  all  the  circumstances  the  court  here  decides  that  it  must 
be  considered  that  the  question  as  to  the  admissibility  of  the  evi- 
dence is  now  open  for  revision,  as  the  decree  for  the  libellant  was 
equivalent  to  a  ruling  rejecting  the  evidence  offered  in  defence  or  to 
a  ruling  granting  a  motion  to  strike  it  out  after  it  had  been  admitted, 
which  is  a  course  often  pursued  by  courts  in  cases  where  the  ques- 
tion deserves  examination.  What  the  claimant  offered  to  prove  was 
that  the  iron  was  stowed  on  deck  with  the  consent  of  the  shippers, 
but  the  libellants  objected  to  the  evidence  as  repugnant  to  the  con- 
tract set  forth  in  the  bill  of  lading,  and  the  decree  was  for  the  libel- 
lants, which  was  equivalent  to  a  decision  that  the  evidence  offered 
was  incompetent.  Dissatisfied  with  that  decree,  the  respondent 
appealed  to  the  Circuit  Court,  where  the  decree  of  the  District  Court 
was  affirmed,  and  the  same  party  appealed  from  that  decree  and 
removed  the  cause  into  this  court  for  re-examination. 

Even  without  any  further  explanation  it  is  obvious  that  the  only 
question  of  any  importance  in  the  case  is  whether  the  evidence 
offered  to  show  that  the  iron  in  question  was  stowed  on  deck  with 
the  consent  of  the  shippers  was  or  was  not  properly  rejected,  as  it  is 
clear  if  it  was,  that  the  decree  must  be  affirmed;  and  it  is  equally 
clear,  if  it  should  have  been  admitted,  that  the  decree  must  be 
reversed.1 

Different  definitions  to  the  commercial  instrument,  called  the  bill 
of  lading,  have  been  given  by  different  courts  and  jurists,  but  the 
correct  one  appears  to  be  that  it  is  a  written  acknowledgment, 
signed  by  the  master,  that  he  has  received  the  goods  therein  described 
from  the  shipper,  to  be  transported  on  the  terms  therein  expressed, 
to  the  described  place  of  destination,  and  there  to  be  delivered  to 
the  consignee  or  parties  therein  designated.2     Regularly  the  goods 

1  Angell  on  Carriers,  §  212  ;  Redfield  on  Carriers,  §§  247  to  269  ;  The  St.  Cloud, 
Brown  &  Lushington  Adrnr.  4. 

2  Abbott  on  Shipping,  7th  Am.  ed.  323  ;  O'Brien  v.  Gilchrist,  34  Maine,  558  [247] ; 
1  Parsons  on  Shipping,  186  ;  Machlachlan  on  Shipping,  338  ;  Emerigon  on  Ins.  251. 


THE    BILL    OF   LADING.  565 

ought  to  be  on  board  before  the  bill  of  lading  is  signed;  but  if  the 
bill  of  lading,  through  inadvertence  or  otherwise,  is  signed  before 
the  goods  are  actually  shipped,  as  if  they  are  received  on  the  wharf 
or  sent  to  the  warehouse  of  the  carrier,  or  are  delivered  into  the 
custody  of  the  master  or  other  agent  of  the  owner  or  charterer  of  the 
vessel,   and  are  afterwards  placed  on  board,  as  and  for  the  goods 
embraced  in  the  bill  of  lading,  it  is  clear  that  the  bill  of  lading  will 
operate  on  those  goods  as  between  the  shipper  and  the  carrier  by 
way  of  relation  and  estoppel,  and  that  the  rights  and  obligations  <>f 
all  concerned  are  the  same  as  if  the  goods  had  been  actually  shipped 
before  the  bill  of  lading  had  been  signed.1     Such  an  instrument  is 
twofold  in  its  character;  that  is,  it  is  a  receipt  as  to  the  quantity 
and  description  of  the   goods  shipped,  and  a  contract  to  transport 
and   deliver  the  goods  to  the  consignee  or   other    person    therein 
designated,  and  (upon  the  terms  specified  in  the  same  instrument. - 
Beyond  all  doubt  a  bill  of  lading,  in  the  usual  form,  is  a  receipt  for 
the  quantity  of  goods  shipped  and  a  promise  to  transport  and  deliver 
the  same  as  therein  stipulated.3    Receipts  may   be  either  a  mere 
acknowledgment  of  payment  or  delivery,  or  they  may  also  contain  a 
contract  to  do  something  in  relation  to  the  thing  delivered.     In  the 
former  case,  and  so  far  as  the  receipt  goes  only  to  acknowledge  the 
payment  or  delivery,  it,  the  receipt,  is  merely  prima  facie  evidence 
of   the  fact,   and  not  conclusive,   and   therefore  the   fact  which  it 
recites  may  be  contradicted  by  oral  testimony,  but  in  so  far  as  it  is 
evidence  of  a  contract  between  the  parties  it  stands  on  the  footing 
of  all  other  contracts  in  writing,  and  cannot  be  contradicted  or  varied 
by  parol  evidence.4     Text-writers  mention  the  bill  of  lading  as  an 
example  of  an  instrument  which  partakes  of  a  twofold  character, 
and  such  commentators  agree  that  the  instrument  may,  as  between 
carrier  and  shipper,  be  contradicted  and  explained  in  its  recital  that 
the  goods  were  in  good  order  and  well  conditioned,  by  showing  that 
their  internal  state  and  condition  was  bad,  or  not  such  as  is  repre- 
sented in  the    instrument,   and    in  like  manner,  in    respect  to  any 
other  fact  which  it  erroneously  recites,  but  in  all  other  respects  it 
is  to  be  treated  like  other  written  contracts.5 

Bills  of  lading  when  signed  by  the  master,  duly  executed  in  the 
usual  course  of  business,  bind  the  owners  of  the  vessel  if  the  goods 
were  laden  on  board  or  were  actually  delivered  into  the  custody  of 

i  Rowley  v.  Bigelow,  12  Pickering,  307  ;  The  Eddy,  5  Wallace,  495. 

2  Maclachlan  on  Shipping,  338-9  ;  Smith's  Mercantile  Law,  6th  ed.  308. 

3  Bates  v.  Todd,  1  Moody  &  Robinson,  106  ;  Berkley  v.  Watling,  7  Adolphus  & 
Ellis,  29  ;  Wayland  v.  Mosely,  5  Alabama,  430  ;  Brown  v.  Byrne,  3  Ellis  &  Black- 
burne,  714  ;  Blaikie  v.  Stembridge,  6  C.  B.  n.  8.  907. 

*  1  Greenleaf  on  Evidence,  12th  ed.  §  305  ;  Bradley  v.  Dunipace,  1  Hiirlstone  & 
Colt,  525. 

*  Hastings  v.  Pepper,  11  Pickering,  42  ;  Clark  v.  Barnwell  etal.,  12  Howard,  'J.  2  ; 
Ellis  v.  Willard,  5  Selden,  529  ;  May  v.  Babcock,  4  Ohio,  346  ;  Adams  v.  Packet  Co., 
5  C.  B.  N.  s.  492  ;  Sack  v.  Ford,  13  C.  B.  N.  s.  100. 


566  CARRIERS    OF   GOODS. 

the  master;  but  it  is  well-settled  law  that  the  owners  are  not  liable 
if  the  party  to  whom  the  bill  of  lading  was  given  had  no  goods,  or 
the  goods  described  in  the  bill  of  lading  were  never  put  on  board  or 
delivered  into  the  custody  of  the  carrier  or  his  agent.1  Proof  of 
fraud  is  certainly  a  good  defence  to  an  action  claiming  damages  for 
the  non-delivery  of  the  goods;  but  it  is  settled  law  in  this  court  that 
a  clean  bill  of  lading  imports  that  the  goods  are  to  be  safely  and 
properly  stowed  under  deck,  and  that  it  is  the  duty  of  the  master  to 
see  that  the  cargo  is  so  stowed  and  arranged  that  the  different  goods 
may  not  be  injured  by  each  other  or  by  the  motion  or  leakage  of  the 
vessel,  unless  by  agreement  that  service  is  to  be  performed  by  the 
shipper.2  Express  contracts  may  be  made  in  writing  which  will 
define  the  obligations  and  duties  of  the  parties,  but  where  those 
obligations  and  duties  are  evidenced  by  a  clean  bill  of  lading,  —  that 
is,  if  the  bill  of  lading  is  silent  as  to  the  mode  of  stowing  the  goods, 
and  it  contains  no  exceptions  as  to  the  liability  of  the  master,  except 
the  usual  one  of  the  dangers  of  the  sea,  —  the  law  provides  that  the 
.goods  are  to  be  carried  under  deck,  unless  it  be  shown  that  the  usage 
of  the  particular  trade  takes  the  case  out  of  the  general  rule  applied 
in  such  controversies.8  Evidence  of  usage  is  admissible  in  mercan- 
tile contracts  to  prove  that  the  words  in  which  the  contract  is 
expressed,  in  the  particular  trade  to  which  the  contract  refers,  are 
used  in  a  particular  sense  and  different  from  the  sense  which  they 
ordinarily  import;  and  it  is  also  admissible  in  certain  cases,  for  the 
purpose  of  annexing  incidents  to  the  contract  in  matters  upon  which 
the  contract  is  silent,  but  it  is  never  admitted  to  make  a  contract  or 
to  add  a  new  element  to  the  terms  of  a  contract  previously  made  by 
the  parties.  Such  evidence  may  be  introduced  to  explain  what  is 
ambiguous,  but  it  is  never  admissible  to  vary  or  contradict  what  is 
plain.  Evidence  of  the  kind  may  be  admitted  for  the  purpose  of 
defining  what  is  uncertain,  but  it  is  never  properly  admitted  to  alter 
a  general  rule  of  the  law,  nor  to  make  the  legal  rights  or  liabilities 
of  the  parties  other  or  different  from  what  they  are  by  the  common 
law.4  Cases  may  arise  where  such  evidence  is  admissible  and 
material,  but  as  none  such  was  offered  in  this  case  it  is  not  neces- 
sary to  pursue  that  inquiry.  Exceptions  also  exist  to  the  rule  that 
parol  evidence  is  not  admissible  to  vary  or  contradict  the  terms  of 

1  The  Schooner  Freeman,  18  Howard,  187  ;  Maude  &  Pollock  on  Shipping,  233  ; 
Grant  v.  Norway,  10  C.  B.  665  ;  Zipsy  v.  Hill,  Foster  &  Finelly,  573  ;  Meyer  v. 
Dresser,  16  0.  B.  N.  s.  657. 

2  The  Cordes,  21  Howard,  23 ;  Sandeman  v.  Scurr,  Law  Reports,  2  Q.  B.  98  ; 
Swainston  v.  Garrick,  2  Law  Journal,  N.  S.  Exchequer,  355  ;  African  Co.  v.  Lainzed, 
Law  Reports,  1  C.  P.  229;  Alston  v.  Hering,  11  Exchequer,  822. 

*  Abbott  on  Shipping  (7th  Am.  ed.),  345  ;  Smith  v.  Wright,  1  Cain,  43  ;  Gould  v. 
Oliver,  2  Manning  &  Granger,  208  ;  Waring  v.  Morse,  7  Alabama,  343  ;  Falkner  v. 
Earle,  3  Best  &  Smith,  363. 

«  Oelricks  v.  Ford,  23  Howard,  63  ;  Barnard  v.  Kellogg  et  a/.,  10  Wallace,  383  ; 
Simmons  v.  Law,  3  Keyes,  219  ;  Spartali  v.  Benecke,  10  C.  B.  222. 


THE    BILL    OF    LADING.  567 

a  written  instrument  where  it  appears  that  the  instrument  was  not 
within  the  Statute  of  Frauds  nor  under  seal,  as  where  the  evidence 
offered  tends  to  prove  a  subsequent  agreement  upon  a  new  consider- 
ation. Subsequent  oral  agreements  in  respect  to  a  prior  written 
agreement,  not  falling  within  a  statute  of  frauds,  may  have  the 
effect  to  enlarge  the  time  of  performance,  or  may  vary  any  other  of 
its  terms,  or,  if  founded  upon  a  new  consideration,  may  waive  and 
discharge  it  altogether.1  Verbal  agreements,  however,  between  the 
parties  to  a  written  contract,  made  before  or  at  the  time  of  the 
execution  of  the  contract,  are  in  general  inadmissible  to  contradict 
or  vary  its  terms  or  to  affect  its  construction,  as  all  such  verbal 
agreements  are  considered  as  merged  in  the  written  contract.2 

Apply  that  rule  to  the  case  before  the  court  and  it  is  clear  that 
the  rilling  of  the  court  below  was  correct,  as  all  the  evidence  offered 
consisted  of  conversations  between  the  shippers  and  the  master 
before  or  at  the  time  the  bill  of  lading  was  executed.  Unless  the 
bill  of  lading  contains  a  special  stipulation  to  that  effect,  the  master 
is  not  authorized  to  stow  the  goods  sent  on  board  as  cargo  on  deck, 
as  when  he  signs  a  bill  of  lading,  if  in  the  common  form,  he  con- 
tracts to  convey  the  merchandise  safely,  in  the  usual  mode  of  con- 
veyance, which,  in  the  absence  of  proof  of  a  contrary  usage  in  the 
particular  trade,  requires  that  the  goods  shall  be  safely  stowed  under 
deck;  and  when  the  master  departs  from  that  rule  and  stows  them 
on  deck,  he  cannot  exempt  either  himself  or  the  vessel  from  liability, 
in  case  of  loss,  by  virtue  of  the  exception,  of  dangers  of  the  seas, 
unless  the  dangers  were  such  as  would  have  occasioned  the  loss  even 
if  the  goods  had  been  stowed  as  required  by  the  contract  of  affreight- 
ment.3 Contracts  of  the  master,  within  the  scope  of  his  authority 
as  such,  bind  the  vessel  and  give  the  creditor  a  lien  upon  it  for  his 
security,  except  for  repairs  and  supplies  purchased  in  the  home 
port,  and  the  master  is  responsible  for  the  safe  stowage  of  the  cargo 
under  deck,  and  if  he  fails  to  fulfil  that  duty  he  is  responsible  for 
the  safety  of  the  goods,  and  if  they  are  sacrificed  for  the  common 
safety  the  goods  stowed  under  deck  do  not  contribute  to  the  loss.4 
Shipowners  in  a  contract  by  a  bill  of  lading  for  the  transportation 
of  merchandise  take  upon  themselves  the  responsibilities  of  common 
carriers;  and  the  master,  as  the.  agent  of  such  owners,  is  bound  to 
have  the  cargo  safely  secured  under  deck,  unless  he  is  authorized  to 

1  Emerson  v.  Slater,  22  Howard,  41  ;  Gross  v.  Nugent,  5  Barnewall  &  Adolphus, 
65  ;  Nelson  v.  Boynton,  3  Metcalf,  402  ;  1  Greenleaf  on  Evidence,  303  ;  Harvey  v. 
Grabham,  5  Adolphus  &  Ellis,  61. 

2  Ruse  v.  Ins.  Co.,  23  N.  Y.  519  ;  Wheelton  v.  Hardisty,  8  Ellis  &  Blackburn, 
296  ;  2  Smith's  Leading  Cases,  758  ;  Angell  on  Carriers,  4th  ed.,  §  229. 

8  The  Rebecca,  Ware,  210  ;  Dodge  v.  Bartol,  5  Greenleaf,  286  ;  Walcott  v.  Ins. 
Co.,  4  Pickering,  429  ;  Cooper  Co.  v.  Ins.  Co.,  22  id.  108  ;  Adams  v.  Ins.  Co.,  id. 
163. 

4  The  Paragon,  Ware,  329,  331  ;  2  Phillips  on  Insurance,  §  704  ;  Brooks  v.  In- 
surance  Co.,  7  Pickering,  259. 


568  CARRIERS    OF    GOODS. 

carry  the  goods  on  deck  by  the  usage  of  the  particular  trade  or  by 
the  consent  of  the  shipper,  and  if  he  would  rely  upon  the  latter  he 
must  take  care  to  require  that  the  consent  shall  be  expressed  in  a 
form  to  be  available  as  evidence  under  the  general  rules  of  law.1 

Where  goods  are  stowed  under  deck  the  carrier  is  bound  to  prove 
the  casualty  or  vis  major  which  occasioned  the  loss  or  deterioration 
of  the  property  which  he  undertook  to  transport  and  deliver  in  good 
condition  to  the  consignee,  and  if  he  fails  to  do  so  the  shipper  or 
consignee,  as  a  general  rule,  is  entitled  to  his  remedy  for  the  non- 
delivery of  the  goods.     No  such  consequences,   however,  follow  if 
the  goods  were  stowed  on  deck  by  the  consent  of  the  shipper,  as  in 
that  event  neither  master  nor  the  owner  is  liable  for  any  damage 
done  to  the  goods  by  the  perils  of  the  sea  nor  from  the  necessary 
exposure  of  the  property,  but  the  burden  to  prove  such  consent  is 
upon  the  carrier,  and  he  must  take  care  that  he  has  competent  evi- 
dence to  prove  the  fact.2     Parol  evidence,  said  Mr.  Justice  Nelson, 
in  the  case  of  Creery  v.  Holly,3  is  inadmissible  to  vary  the  terms  or 
legal  import  of  a  bill  of  lading  free  of  ambiguity;  and  it  was  accord- 
ingly held  in  that  case  that  a  clean  bill  of  lading  imports  that  the 
goods  are  stowed  under  deck,  and  that  parol  evidence  that  the  vendor 
agreed  that  the  goods  should  be  stowed  on  deck  could  not  legally  be 
received  even  in  an  action  by  the  vendor  against  the  purchaser  for 
the  price  of  the  goods  which  were  lost  in  consequence  of  the  stowage 
of  the  goods  in  that  manner  by  the  carrier.     Even  where  it  appeared 
that  the  shipper,  or  his  agent  who  delivered  the  goods  to  the  carrier, 
repeatedly  saw  them  as  they  were  stowed  in  that  way  and  made  no 
objection  to  their  being  so  stowed,  the  Supreme  Court  of  Maine  held 
that  the  evidence  of  those  facts  was  not  admissible  to  vary  the  legal 
import  of  the  contract  of  shipment;  that  the  bill  of  lading  being 
what  is  called  a  clean  bill  of  lading,   it  bound  the  owners  of  the 
vessel   to  carry  the  goods  under  deck,  but  the  court  admitted  that 
where  there  is  a  well-known  usage  in  reference  to  a  particular  trade 
to  carry  the  goods  as  convenience  may  require,  either  upon  or  under 
deck,  the  bill  of  lading   may  import  no  more  than  that  the  cargo 
shall  be  carried  in  the  usual  manner.4     Testimony  to  prove  a  verbal 
agreement  that  the  goods  might  be  stowed  on  deck  was  offered  by 
the  defence  in  the  case  of  Barber  v.  Brace ; 5  but  the  court  rejected 
the  testimony,  holding  that  the  whole  conversation,  both  before  and 
at  the  time  the  writing  was  given,  was  merged  in  the  written  instru- 
ment,  which   undoubtedly    is   the   correct   rule    upon   the   subject. 

i  The  "Waldo,  Davies,  162  ;  Blackett  v.  -Exchange  Co.,  2  Crompton  &  Jervis,  250  ; 
1  Arnould  on  Insurance,  69  ;  Lenox  v.  Insurance  Co.,  3  Johnson's  Cases,  178. 

2  Shackleford  v.  Wilcox,  9  Louisiana,  38.  3  14  Wendell,  28. 

*  Sproat  v.  Donnell,  26  Maine,  187  ;  2  Taylor  on  Evidence,  §§  1062,  1067  ;  Hope 
v.  State  Bank,  4  Louisiana,  212  ;  1  Arnould  on  Insurance,  70;  Lapham  v.  Insurance 
Co.,  24  Pickering,  1. 

6  3  Connecticut,  14. 


THE    BILL    OF   LADING.  569 

Written  instruments  cannot  be  contradicted  or  varied  by  evidence  of 
oral  conversations  between  the  parties  which  took  place  before  <•. 
the  time  the  written  instrument  was  executed ;  but  in  the  case  of  a 
bill  of  lading  or  a  charter-party,  evidence  of  usage  in  a  particular 
trade  is  admissible  to  show  that  certain  goods  in  that  trade  may  be 
stowed  on  deck,  as  was  distinctly  decided  in  that  case.1  But  evi- 
dence of  usage  cannot  be  admitted  to  control  or  vary  the  positive 
stipulations  of  a  bill  of  lading,  or  to  substitute  for  the  express  terms 
of  the  instrument  an  implied  agreement  or  usage  that  the  carrier 
shall  not  be  bound  to  keep,  transport,  and  deliver  the  goods  in  good 
order  and  condition.2 

Remarks,  it  must  be  admitted,  are  found  in  the  opinion  of  the 
court,  in  the  case  of  Vernard  v.  Hudson,8  and  also  in  the  case  of 
Say  ward  v.  Stevens,4  [809  J  which  favor  the  views  of  the  appellant,  but 
the  weight  of  authority  and  all  the  analogies  of  the  rules  of  evi- 
dence support  the  conclusion  of  the  court  below,  and  the  court  here 
adopts  that  conclusion  as  the  correct  rule  of  law,  subject  to  the 
qualifications  herein  expressed.  Decree  affirmed. 


GARDEN   GROVE  BANK   v.    HUMESTON  &  SHENANDOAH 

RY.    CO. 

67  Iowa,  526.     1885. 

The  plaintiff  seeks  to  recover  of  the  defendant  the  sum  of  $550, 
which  it  advanced  upon  a  bill  of  lading  issued  by  the  defendant 
upon  the  shipment  of  certain  walnut  lumber,  and  which  bill  of  lad- 
ing was  assigned  to  the  plaintiff.  The  right  of  action  is  based  upon 
the  claim  that  the  defendant  failed  to  comply  with  its  contract  of 
shipment,  and  by  negligence  delivered  the  lumber  to  parties  not 
authorized  to  receive  the  same,  by  which  plaintiff  was  damaged  in 
the  amount  advanced,  and  interest.  There  was  a  trial  by  jury,  and 
a  verdict  and  judgment  for  the  defendant.     Plaintiff  appeals. 

Rothkock,  J.  The-  facts  necessary  to  a  determination  of  the 
questions  of  law  involved  in  the  case  are  not  disputed.  They  are  as 
follows:  One  Henry  Zohn  was  engaged  in  buying  walnut  logs  and 
Avalnut  lumber  along  the  line  of  the  railroad  of  the  defendant,  and 
shipping  the  same  to  Chicago.  About  the  twentieth  day  of  August, 
1881,  he  caused  three  cars  to  be  loaded  with  said  lumber,  for  ship- 
ment at  Van  Wert,  a  station  on  the  defendant's  railroad.  Zohn 
was  indebted  to  Wells  Bros,  in  the  sum  of  $550  for  this  lumber, 

1  Barber  v.  Brace,  3  Pickering,  13  ;  1  Smith's  Leading  Cases,  6th  American 
edition,  837. 

2  The  Reeside,  2  Sumner,  570 ;   1  Duer  on  Insurance,  §  17- 

8  3  Sumner,  406.  4  3  Gray,  101. 


570  CARRIERS    OF    GOODS. 

and  on  the  twenty-third  day  of  August,  1881,  before  any  bill  of 
lading  was  issued  for  the  shipment  of  the  property,  Wells  Bros, 
caused  the  lumber  on  said  cars  to  be  attached  to  secure  their  claim 
against  Zohn.  On  the  same  day  Wells  Bros,  and  Zohn  met  at  said 
station,  and  agreed  that  the  bill  of  lading  should  be  issued  to 
Wells  Bros,  as  consignors,  that  they  should  hold  it  as  security 
for  their  claim  against  Zohn,  and  that  they  would  take  such  bill  of 
lading  to  the  Garden  Grove  Bank,  and  draw  a  sufficient  amount  of 
money  thereon  to  pay  the  claim  of  Wells  Bros.  The  conversation 
in  regard  to  this  arrangement'  was  in  the  presence  of  the  station 
agent  of  the  defendant,  and  he  knew,  when  he  issued  the  bill  of 
lading,  that  Zohn  and  Wells  Bros,  expected  and  intended  to  use  the 
same  at  the  Garden  Grove  Bank  to  draw  or  receive  money  thereon. 
The  said  agent  thereupon  issued  and  delivered  to  Wells  Bros,  a  bill 
of  lading,  of  which  the  following  is  a  copy :  — 

"  Humeston   &   Shenandoah   R.    R.   Co.      Bill   of   Lading.      Freight 
Office,   Van   Wert,    August  23,    1881. 

"  Received  from  Wells  Bros.,  in  apparent  good  order,  by  the  Humeston  & 
Shenandoah  R.  R.  Co.,  the  following  described  packages  (contents  and  value 
unknown)  consigned  as  marked  and  numbered  in  the  margin,  upon  the  terms 
and  conditions  hereinafter  contained,  and  which  are  hereby  made  a  part  of 
this  agreement,  also  subject  to  the  conditions  and  regulations  of  the  published 
tariffs  in  use  by  said  railroad  company,  to  be  transported  over  the  line  of  this 
road  to  Chicago  station,  and  there  delivered  in  like  good  order  to  the  con- 
signee or  owner,  at  said  station,  or  to  such  company  or  carriers  (if  same  are 
to  be  forwarded  beyond  said  station)  whose  line  may  be  considered  a  part  of 
the  route,  to  the  place  at  destination  of  said  goods  or  packages;  it  being 
distiuctly  understood  and  agreed  that  the  responsibility  of  this  company  as  a 
common  carrier  shall  cease  at  the  station  where  delivered  or  tendered  to  such 
person  or  carrier ;  but  it  guaranties  that  the  rate  of  freight  for  the  transporta- 
tion of  said  packages  shall  not  exceed  rates  as  specified  below,  and  charges 
advanced  by  this  company,  upon  the  following  conditions  [read  the  condi- 
tions]. The  owner  or  consignee  to  pay  freight  or  charges  as  per  specified 
rates  upon  the  goods  as  they  arrive.  Freight  carried  by  the  company  must 
be  removed  from  the  station  during  business  hours  on  the  day  of  its  arrival,  or 
it  will  be  stored  at  the  owner's  risk  and  expense ;  and,  in  the  event  of  its 
destruction  or  damage  from  any  cause  while  in  the  depots  of  the  company, 
either  in  transit  or  at  the  terminal  point,  it  is  agreed  that  the  company  shall 
not  be  liable  except  as  warehousemen.  It  is  agreed,  and  is  a  part  of  the 
consideration  of  this  agreement,  that  the  company  will  not  be  responsible  for 
the  leakage  of  liquors  or  liquids  of  any  kind ;  breakage  of  glass  or  queensware ; 
the  injury  or  breakage  of  castings,  carriages,  furniture,  glass  show-cases, 
hollow-ware  and  looking-glasses,  machinery,  musical  instruments  of  any  kind, 
packages  of  eggs,  or  picture  frames  ;  loss  of  weight  of  coffee,  or  grain  in  bags, 
or  rice  in  tierces  ;  or  for  any  decay  of  perishable  articles  ;  nor  for  damage 
arising  from  effects  of  heat  or  cold  ;  nor  for  loss  of  nuts  in  bags,  lemons  or 
oranges  in  boxes,  unless  covered  with  canvas  ;  nor  for  loss  or  damage  of  hay, 
hemp,  cotton,  or  any  article  the  bulk  of  which  renders  it  necessary  to  trans- 
port it  in  open  cars,  unless  it  can  be  shown  that  such  loss  or  damage  occurred 


THE    BILL   OF   LADING. 


571 


through  negligence  or  default  of  the  agents  of  this  company.  Goods  in  bond 
subject  to  custom-house  regulations  and  expenses.  The  company  is  not 
responsible  for  accidents  or  delays  from  unavoidable  cause  ;  the  responsibility 
of  this  company,  as  carriers,  to  terminate  on  the  delivery  or  tender  of  the 
freight  as  per  this  bill  of  lading  to  the  company  whose  line  may  be  considered 
a  part  of  the  route  to  the  place  of  the  destination  of  said  goods  or  packages. 
In  the  event  of  loss  of  any  property  for  which  the  carriers  may  be  responsible 
under  this  bill  of  lading,  the  value  or  cost  of  the  same  at  the  point  and  time 
of  shipment  is  to  govern  the  settlement  for  the  same,  except  the  value  of  the 
article  has  been  agreed  upon  with  the  shipper,  or  is  determined  by  the  classi- 
fication upon  which  the  rates  are  based.  And  in  case  of  loss  or  damage  of 
any  of  the  goods  named  in  this  bill  of  lading  for  which  the  company  may  be 
liable,  it  is  agreed  and  understood  that  this  company  may  have  the  benefit  of 
any  insurance  effected  by  or  on  account  of  the  owner  of  said  goods.  This 
receipt  to  be  presented  without  erasure  or  alteration. 


Marks  and  consignees. 


Car  No. 


560  A.  &  N 

1006K.  S.  J.&C.  B. 
9450  S 


Description  of  Ar- 
ticles given  by  Con- 
signee. 


Walnut  lumber 


Weight,    subject  to 
Correction. 


22,000 
22,000 
22.000 


" Freight  to  be  paid  upon  the  weight  by  the  company's  scales, 

but  no  single  shipment  to  be  rated  at  less  than  100  lbs.  Car-load  freight 
subject  to  the  current  rules  as  to  the  minimum  and  maximum  weights. 
Charges  advanced  (if  any).  This  bill  of  lading  to  be  surrendered  before  prop- 
erly is  delivered. 

"  S.  O.  Campbell,  Freight  Agent." 

The  bill  of  lading  was  issued  and  delivered  on  the  evening  of  the 
twenty-third  day  of  August.  On  the  next  morning  Wells  Bros,  and 
Zohn  appeared  at  the  Garden  Grove  Bank,  and  requested  the  cashier 
to  advance  them  $ 550  on  said  bill  of  lading.  He  consented  to  do 
so.  Thereupon  Wells  Bros,  assigned  the  bill  of  lading  to  Zohn,  and 
he  assigned  the  same  to  C.  S.  Stearns,  cashier  of  the  bank,  and  at 
the  same  time  Zohn  executed  a  draft  of  $550  in  favor  of  said  cashier 
to  one  J.  H.  Wallace,  of  Chicago,  and  the  "bill  of  lading,  and  draft 
attached  thereto,  were  delivered  to  the  cashier  in  consideration 
whereof  he  advanced  and  paid  for  said  bank  to  Wells  Bros,  the  sun^ 
of  $550. 

It  will  be  observed  that  there  is  no  person  named  as  consignee  in 
the  bill  of  lading.  The  space  under  the  head  of  "Marks  and  Con- 
signees "  is  left  blank.  The  defendant  introduced  parol  evidence  by 
which  it  was  shown  that,  when  the  bill  of  lading  was  issued,  the 
name  of  the  consignee  was  intentionally  omitted,  because  Zohn  had 
not  then  determined  to  whom  he  would  ship  the  lumber.  He  did 
not  intend  to  return  to  Van  Wert,  and  he  directed  the  station  agent 
to  ship  to  Stokes  &  Son,  of  Chicago,  unless  he  received  other 
instructions    from   him  by  telegraph.     No  such  instructions  were 


572  CARRIERS    OF   GOODS. 

received,  and,  on  the  next  day,  being  the  same  day  the  plaintiff 
advanced  the  money  on  the  bill  of  lading,  the  agent  of  the  railroad 
company  shipped  the  lumber  consigned  to  Stokes  &  Son,  to  whom 
the  same  was  delivered,  and  it  was  shipped  immediately  to  Canada. 
The  plaintiff  forwarded  the  bill  of  lading  and  draft  to  Chicago,  and 
demanded  the  lumber  of  the  C.  B.  &  Q.  E.  Co.,  the  railroad  con- 
necting with  defendant,  and  delivery  was  refused,  because  a  delivery 
had  already  been  made  to  Stokes  &  Son.  Wells  Bros,  knew  of  the 
arrangement  between  the  station  agent  and  Zohn,  that  the  lumber 
was  to  be  consigned  to  Stokes  &  Son  unless  Zohn  should  name 
another  consignee;  but  this  arrangement  was  wholly  unknown  to 
the  plaintiff  until  it  was  too  late  to  prevent  the  delivery  of  the 
lumber  to  Stokes  &  Son. 

The  plaintiff  objected  to  the  parol  evidence  on  the  ground  that  it 
contradicted  the  written  contract  as  evidenced  by  the  bill  of  lading. 
The  objection  was  overruled  and  the  evidence  received,  and  the 
court  instructed  the  jury  as  follows :  "  (4)  You  are  instructed  that 
the  bill  of  lading,  as  shown  upon  its  face,  does  not  name  a  con- 
signee, and  does  not  express  the  full  agreement  between  the  parties; 
and  you  are  instructed  that  if  Zohn  and  Wells  Bros,  consented  that 
at  the  time  the  way-bills  should  be  made  to  Stokes  &  Son,  unless 
the  agent  should  be  advised  to  the  contrary,  then  it  was  proper  for 
the  said  agent  to  ship  said  lumber  to  Stokes  &  Son,  and  your  verdict 
should  be  for  the  defendant.  But  if  there  was  no  such  agreement, 
then  the  bill  of  lading  is  a  contract  between  the  parties  thereto, 
whereby  said  defendant  agreed  to  transfer  said  lumber  to  Chicago  to 
Wells  Bros,  or  their  assignee.  The  burden  of  proof  is  upon  the 
defendant  to  establish  said  agreement.  (5)  If  you  find  that  Wells 
Bros,  and  Zohn  went  to  the  bank  of  plaintiff,  in  order  to  get  money 
so  that  Wells  Bros.'  claim  could  be  satisfied,  and  you  further  find 
that  Wells  Bros,  assigned  their  interest  to  said  Henry  Zohn,  that 
then  Zohn  drew  a  draft  on  Chicago  upon  said  Wallace,  which  said 
draft  was  cashed  by  the  plaintiff,  and  Zohn  then  assigned  and 
delivered  the  bill  of  lading  to  the  plaintiff,  then  you  are  instructed 
that  it  was  the  duty  of  plaintiffs,  in  order  to  protect  their  rights,  to 
notify  the  defendant  that  they  were  the  owners  of  said  bill  of  lad- 
ing; and  if  you  find  that  the  defendant  shipped  said  lumber  to 
Stokes  &  Son,  and  said  consignment  was  with  the  consent  of  Zohn, 
and  he  was  satisfied  with  such  assignment,  and  you  further  find 
that  the  defendant  did  not  know  that  said  bill  of  lading  had  been 
assigned  to  plaintiff,  and  had  no  knowledge  of  plaintiff's  rights, 
then  the  plaintiff  cannot  recover  in  this  action,  and  your  verdict 
should  be  for  the  defendant." 

These  instructions  are  complained  of  by  counsel  for  appellant, 
and,  in  connection  with  the  admission  of  the  parol  evidence,  they 
present  the  questions  which,  in  our  opinion,  are  decisive  of  the 
rights  of  the  parties.     A  bill  of  lading  is  both  a  receipt  and  a  con- 


THE    BILL   OF   LADING.  573 

tract,  and  in  its  character  as  a  contract  it  is  no  more  open  to  expl 
nation  or  alteration  by  parol  than  other  written  contracts.  This 
proposition  seems  to  be  conceded  by  counsel  for  appellee;  and  the 
court  below,  in  the  fourth  instruction  cited  above,  appears  to  have 
been  of  the  opinion  that,  as  the  contract  did  not  name  any  one 
consignee,  it  shows  upon  its  face  that  it  does  not  express  the  full 
agreement  between  the  parties,  and  the  parol  evidence  was  doubtb 
admitted  upon  the  ground  that  the  contract  was  partly  in  writii 
and  partly  in  parol.  It  is,  however,  conceded  in  the  same  instruc- 
tion that  if  it  was  not  agreed  by  parol  that  Zohn  should  designate 
the  consignee,  then  the  bill  of  lading  is  a  contract  whereby  the 
defendant  agreed  to  transfer  the  lumber  to  Chicago  to  Wells  Bros. 
or  their  assignees.  We  think  the  proposition  that  the  bill  of  lading 
shows  on  its  face  that  it  is  an  obligation  to  convey  the  property  to 
Chicago  and  deliver  to  Wells  Bros.,  or  their  assignees,  is  correct, 
and  that  it  is  a  complete  and  valid  contract  not  susceptible  of  expla- 
nation by  parol,  notwithstanding  the  space  left  in  the  instrument  for 
the  name  of  a  consignee  does  not  contain  the  name  of  any  person. 
It  was  an  obligation  to  deliver  the  goods  to  Chicago  to  the 
"consignee  or  owner."  Wells  &  Co.,  according  to  the  contract, 
were  consignors,  consignees,  and  owners.     In  Chandler  v.  Sprague, 

5  Mete.  306,  it  is  said:  "Ordinarily  the  name  of  a  consignee 
is  inserted,  and  then  such  consignee  or  his  indorsee  may  receive 
the  goods  and  acquire  a  special  property  in  them.  Sometimes  the 
shipper  or  consignor  is  himself  named  as  consignee,  and  then  the 
engagement  of  the  shipowner  or  master  is  to  deliver  them  to  him  or 
his  assigns.  Sometimes  no  person  is  named;  the  name  of  the  con- 
signee being  left  blank,  which  is  understood  to  import  an  engage- 
ment on  the  part  of  the  master  to  deliver  the  goods  to  the  person  to 
whom  the  shipper  shall  order  the  delivery,  or  to  the  assignee  of 
such  person;"  citing  Abb.  Shipp.,  4th  Amer.  ed.  215.  See,  also, 
City  Bank  v.  Railroad  Co.,  44  N.  Y.  136;  Low  v.  De  Wolf,  8  Pick. 
101;  Glidden  v.  Lucas,  7  Cal.  26.  In  Hutchinson  on  Carriers,  §  13  b 
it  is  said :  "  When  there  has  been  no  agreement  to  ship  the  goods 
which  will  make  the  delivery  of  them  to  the  carrier  a  delivery  to 
the  consignee,  and  vest  the  property  in  him,  the  shipper  may,  even 
after  the  delivery  to  the  carrier,  and  after  the  bill  of  lading  has 
been  signed  and  delivered,  alter  their  destination,  and  direct  their 
delivery  to  another  consignee,  unless  the  bill  of  lading  has  been 
forwarded  to  the  consignee  first  named,  or  to  some  one  for  his  use. 
[Citing  Blanchard  v.  Page,  8  Gray,  285;  Mitchel  v.  Ede,  11  Adol. 

6  E.  888;  and  other  cases.]     But,  after  the  carrier  or  his  agent  h 
given  one  bill  of  lading  or  receipt  for  the  goods,  he  cannot  give 
another,  unless  the  first  and  all  duplicates  of  the  same  have  been 
returned  to  him." 

The  reason  of  this  rule  is  obvious.     An  assignment  of  a  bill  of 
lading   operates  as  a  transfer  of   a  title   to  the  property  therein 


574  CARRIERS   OF    GOODS. 

described.  As  is  said  in  Meyerstein  v.  Barber,  L.  R.  2  C.  P.  45: 
"  While  the  goods  are  afloat  it  is  common  knowledge,  and  I  would 
not  think  of  citing  authorities  to  prove  it,  that  the  bill  of  lading 
represents  them;  and  this  indorsement  and  delivery  of  the  bill  of 
lading,  while  the  ship  is  at  sea,  operates  exactly  the  same  as  the 
delivery  of  the  goods  themselves  to  the  assignee  after  the  ship's 
arrival  would  do."  Now,  it  is  perfectly  manifest  that  if  a  carrier 
may  issue  a  second  bill  of  lading  without  requiring  the  return  of 
the  first,  no  reliance  can  be  placed  upon  any  such  an  instrument  by 
those  dealing  with  the  consignor  with  reference  to  the  property. 
And  the  same  consequences  would  ensue  if  he  should  be  permitted, 
without  the  surrender  of  a  bill  of  lading,  to  ship  the  property  to 
any  one  other  than  that  named  in  the  instrument.  In  view  of  the 
well-known  fact  that  the  livestock,  grain,  and  other  products  of 
this  country  are  paid  for  upon  advancements  made  upon  bills  of 
lading,  just  as  was  done  in  this  case,  the  interests  of  commerce 
seem  to  require  that  the  rule  that  no  alteration  shall  be  made  in 
contracts  of  this  character  without  the  production  of  the  original 
should  be  strictly  enforced.  The  defendant  appears  to  have  had 
due  regard  to  this  rule  when  preparing  its  blank  bills  of  lading. 
The  last  provision  therein  contained  —  to  wit,  "This  bill  of  lading  to 
be  surrendered  before  property  is  delivered  "  —  was  printed  across 
the  face  of  the  instrument.  It  is  claimed  by  counsel  that  this  part  of 
the  contract  was  no  part  of  the  mutual  obligation,  but  that  it  was  a 
provision  for  the  protection  of  the  defendant  which  it  might  well 
waive.  It  is  true,  it  could,  as  it  did  in  this  case,  deliver  the  prop- 
erty without  the  surrender  of  the  bill  of  lading.  But  it  did  so  at 
its  peril.  This  bill  of  lading  was  issued  with  a  full  knowledge  that 
it  was  intended  to  procure  an  advancement  of  money  upon  it;  but 
whether  the  agent  had  such  knowledge  or  not,  third  persons  dealing 
with  Wells  &  Co.  were  justified  in  believing  that  their  assignee 
would  receive  the  property  upon  the  surrender  of  the  instrument. 

It  is  claimed,  however,  and  the  court  below  seems  to  have  been 
of  the  opinion,  that  because  a  bill  of  lading  is  not  negotiable  the 
defendant  had  the  right  to  ship  the  property  to  Stokes  &  Co.  by  the 
direction  of  Zohn,  and  is  not  liable  to  the  plaintiff  because  it  had 
no  notice  that  the  bill  of  lading  had  been  assigned  to  plaintiff.  It 
is  true  that  a  bill  of  lading  is  not  negotiable.  It  is,  hoAvever, 
assignable,  and  the  assignor  may  maintain  an  action  thereon  in  hi* 
own  name.  It  possesses  attributes  not  common  to  the  ordinary 
non-negotiable  instruments  enumerated  in  section  2084  of  the  Code. 
The  instruments  there  enumerated  are  obligations  for  the  payment 
of  money,  or  promises  to  discharge  obligations  or  debts  by  the 
delivery  of  property.  Such  obligations  may  be  assigned,  but  they 
are  "subject  to  any  defence  or  counter-claim  which  the  maker  or 
debtor  had  against  any  assignor  thereof  before  notice  of  his 
assignments." 


THE    BILL   OF   LADING.  575 

It  is  claimed  that  the  defendant,  under  this  statute,  may  avail 
itself  of  any  defence  it  could  have  interposed  against  Zohn,  because 
he  was  the  assignor  of  the  plaintiff.  A  bill  of  lading  is  a  different 
character  of  instrument.  It  stands  for  and  represents  the  properly, 
and  an  assignment  of  it  passes  the  title  to  the  property.  When 
issued,  it  can  only  be  altered  or  changed,  as  we  have  seen,  by  a 
surrender  of  the  original,  and  the  contract  is  that  the  bill  of  lading 
must  be  surrendered  before  the  property  is  delivered. 

This  is  a  plain  contract,  which  persons  dealing  with  the  consignor 
are  justified  in  believing  will  be  performed.  They  have  also  the 
undoubted  right  to  rely  upon  the  rule  that  no  change  can  be  made 
in  the  contract  which  is  issued  and  sent  out  into  the  commercial 
world,  as  every  business  man  knows,  for  the  very  purpose  of  using 
it  as  the  means  by  which  to  procure  money  to  move  the  produce  of 
the  country  to  market.  If  bankers  cannot  rely  upon  bills  of  lading 
as  being  what  they  plainly  import,  and  in  order  to  protect  them- 
selves against  private  oral  agreements  between  the  carrier  and  the 
shipper,  varying  and  contradicting  the  bill  of  lading,  must  give 
notice  to  the  carrier  of  rights  acquired  in  the  property  as  assignees, 
it  would  very  seriously  embarrass  the  business  interests  of  the 
country,  and  would  produce  a  state  of  affairs  that  we  think  is  neither 
warranted  by  sound  legal  principles  nor  by  any  consideration  of 
public  policy. 

We  think  that  the  parol  evidence  should  not  have  been  admitted, 
and  that  the  instructions  above  set  out  are  erroneous. 

Reversed. 


b.  As  a  Receipt. 

O'BRIEN   v.  GILCHRIST. 

34  Maine,  554.     1852. 

On  exceptions  from  the  District  Court,  Rice,  J. 

The  defendant  was  master  of  the  schooner  "Grecian."  She  was 
lying  at  the  port  of  King  William  in  Virginia.  The  plaintiff  shipped 
on  board  of  her  a  quantity  of  oak  timber  to  go  on  freight  to  East 
Thomaston  in  Maine.  The  bill  of  lading,  signed  by  the  defendant, 
contained  the  following  expressions :  — 

"Shipped  in  good  order  and  condition,  by  Seth  O'Brien,  in  and 
upon  the  good  schooner  called  the  'Grecian,'  whereof  Cornelius 
Gilchrist  is  master  for  the  present  voyage  and  now  lying  in  the  port 
of  King  William  and  bound  for  East  Thomaston,  viz. :  — 

"Three  hundred  seventy-eight  pieces  of  white  oak  ship  timber, 
amounting  to  one  hundred  and  thirty-four  tons  and  thirty-two  feet, 


576  CARRIERS    OF    GOODS. 

more  or  less,  and  are  to  be  delivered  in  the  like  good  order  and 
condition,  at  the  said  port  of  East   Thomaston,"  etc. 

The  timber  delivered  at  East  Thomaston  was  but  351  pieces 
amounting  to  one  hundred  and  twenty-three  tons,  making  a  deficit 
from  the  bill  of  lading  of  eleven  tons  and  thirty-two  feet.  This 
controversy  relates  to  that  deficiency. 

The  defendant  at  the  trial  offered  several  witnesses  to  prove  that 
there  were  not  so  many  pieces  nor  so  many  tons  received  on  board  as 
is  described  in  the  bill  of  lading.  The  plaintiff  objected  to  contra- 
dicting the  bill  of  lading  by  parol,  but  the  court  held  that,  so  far  as 
the  bill  of  lading  was  in  the  nature  of  a  receipt,  it  was  very  strong 
prima  facie  evidence  of  the  truth  of  its  recitals,  but  not  conclusive ; 
and  it  was  therefore,  as  to  numbers  and  quantity,  liable  to  be  con- 
tradicted and  overcome  by  oral  testimony,  and  that  as  between  the 
parties,  all  relevant  evidence  tending  to  show  that  the  defendant 
was  induced,  by  misrepresentation  or  mutual  mistake,  to  sign  a  bill 
of  lading  reciting  a  larger  quantity  than  had  in  fact  been  delivered 
and  received,  would  be  proper  for  the  consideration  of  the  jury. 

The  verdict  was  for  the  defendant,  and  the  plaintiff  excepted. 

Appleton,  J.  That  a  receipt  may  be  contradicted  by  parol  evi- 
dence has  long  been  considered  well-settled  law.  The  bill  of  lading, 
so  far  as  regards  the  condition  of  the  goods  shipped,  is  prima  facie 
evidence  of  a  high  nature,  but  not  conclusive.  Barrett  v.  Kogers,  7 
Mass.  297.  The  master  of  a  vessel  is  not  authorized  to  open  the 
packages  to  ascertain  their  condition.  The  principles  of  public 
policy  and  the  convenience  of  transportation  forbid  that  boxes, 
bales,  etc.,  should  be  opened  and  inspected  before  receipted  for  by 
carriers.  They  therefore  may  show  that  they  were  damaged  before 
coming  into  their  possession.  Gowdy  v.  Lyon,  9  B.  Mun.  113. 
The  same  rule  of  law  has  been  applied  to  the  quantity  of  goods 
therein  stated  as  having  been  received  for  transportation.  In  Bates 
v.  Todd,  1  M.  &  B.  106,  Tindal,  C.  J.,  said,  that  he  was  of 
opinion  that,  as  between  the  original  parties,  the  bill  of  lading  is 
merely  a  receipt  liable  to  be  opened  by  the  evidence  of  the  real  facts, 
and  left  the  question  for  the  jury  to  determine  what  number  of  bags 
of  coffee  had  been  shipped.  In  Berkely  v.  Watting,  34  E.  C.  L. 
22,  it  was  held,  that  the  defendants  were  not  estopped  by  the  bill  of 
lading  to  show  that  goods  purporting  to  be,  were  not  in  fact,  shipped. 
In  Dickerson  v.  Seelye,  12  Barb.  102,  Edmonds,  J.,  in  delivering 
the  opinion  of  the  court,  says,  "  as  between  the  shipper  of  the  goods 
and  the  owner  of  the  vessel,  a  bill  of  lading  may  be  explained  so 
far  as  it  is  a  receipt;  that  is,  as  to  the  quantity  of  goods  shipped 
and  the  like ;  but  as  between  the  owner  of  the  vessel  and  an  assignee 
for  a  valuable  consideration  paid  on  the  strength  of  a  bill  of  lading, 
it  may  not  be  explained."  What  may  be  the  rights  of  an  assignee 
under  such  circumstances  it  is  not  necessary  to  consider  or  determine 
here ,  as  that  question  does  not  arise  in  the  present  case. 


THE    BILL   OF   LADING.  577 

In  Wayland  v.  Moseley,  5  Ala.  430,  the  court  say,  "that  a  bill 
of  lading  in  its  character  is  twofold,  viz. :  a  receipt  and  a  contract 
to  carry  and  deliver  goods.  So  far  as  it  acknowledges  the  receipt  of 
goods  and  states  their  condition,  etc.,  it  may  be  contradicted,  but  in 
other  respects  it  is  treated  like  other  written  contracts."  [n  May  v. 
Babcock,  4  Ohio,  334,  the  language  of  the  court  is,  that  ;' a  bill  of 
lading  is  a  contract  including  a  receipt."  The  same  doctrine  in 
New  York  is  likewise  fully  affirmed  in  Walfe  v.  Myers,  .'!  Sum].  7. 
The  best  elementary  writers  also  concur  in  this  view  of  the  law.  1 
Greenl.  Ev.  §  305;  Abbott  on  Shipping,  324.  The  evidence,  so  far 
as  relates  to  this  question,  was  legally  admissible,  and  the  instruc- 
tions of  the  court  in  relation  thereto  were  in  conformity  with  well- 
established  principles. 

The  evidence  offered  by  way  of  giving  a  construction  to  the  mean- 
ing of  the  words  "more  or  less"  in  the  bill  of  lading,  was  most 
clearly  inadmissible.  The  court,  however,  directed  the  jury  entirely 
to  disregard  all  evidence,  which  was  designed  to  control  the  legal 
construction  of  the  instrument,  and  it  is  to  be  presumed  that  the  jury 
in  rendering  their  verdict  followed  the  instructions  of  the  court. 

At  the  same  time,  the  construction  of  these  words,  as  given  in  the 
charge  of  the  judge,  was  most  favorable  to  the  plaintiff. 

Exceptions  overruled.     Judgment  on  the  verdict. 


EELYEA  v.   NEW  HAVEN   KOLLING   MILL  CO. 

42  Conn.  (U.  S.  D.  C.)  579.     1873. 

Libel  for  freight-money;  tried  in  the  United  States  District 
Court  for  the  District  of  Connecticut,  August  Term,  1873.  The 
facts  of  the  case  are  sufficiently  stated  in  the  opinion. 

Shipman,  J.  This  is  a  libel  in  personam  in  favor  of  the  owner 
and  master  of  the  sloop  "  Carver  "  to  recover  freight-money  from  the 
respondents.  On  or  about  the  8th  day  of  August,  1872,  Pettee  & 
Mann  engaged  the  libellant  to  transport  in  his  sloop  a  cargo  of  scrap 
iron  from  New  York  to  New  Haven.  The  iron  was  weighed  upon 
the  wharf  at  New  York,  and  delivered  on  board  the  vessel  by  Pettee 
&  Mann.  The  captain,  on  August  8th,  1872,  signed  three  bills  of 
lading,  whereby  he  acknowledged  to  have  received  on  board  the 
sloop  one  hundred  and  nine  tons  and  a  specified  fraction  of  a  ton, 
and  agreed  to  deliver  the  same  to  the  respondents  at  New  Haven,  or 
to  their  assigns,  he  or  they  paying  freight  at  the  rate  of  $2.25  per 
ton  of  2,240  pounds.  The  captain  demurred  to  signing  the  bills  of 
lading,  as  he  had  not  seen  the  iron  weighed,  but  finally  signed  them 
upon  the  assurance  of  Pettee  &  Mann  that  the  quantity  was  correctly 
stated. 


578  CARRIERS    OF   GOODS. 

On  the  same  day  the  consignors  sent  by  mail  to  the  respondents 
one  of  the  three  bills  of  lading,  and  a  bill  of  the  iron  at  $62.50  per 
ton.     This  letter  was  received  before  the  vessel  arrived. 

The  vessel  and  cargo  reached  New  Haven  about  the  10th  of 
August.  There  was  a  delay  of  three  or  four  days  in  discharging, 
in  consequence  of  the  respondents'  dock  being  preoccupied,  but  the 
vessel  was  discharged  on  the  17th.  On  the  16th  the  respondents 
paid  Pettee  &  Mann  in  accordance  with  the  quantity  stated  in  the 
invoice  and  the  bill  of  lading.  On  the  17th,  when  the  iron  was 
entirely  discharged,  the  respondents  discovered  a  deficiency  of  about 
six  tons,  and  refused  to  pay  for  the  freight.  The  libellant  delivered 
all  the  iron  that  was  put  on  board  his  vessel,  and  which  amounted 
to  one  hundred  and  three  tons.  It  is  fairly  to  be  inferred  that  the 
consignees  would  not  have  paid  Pettee  &  Mann  until  the  weight 
of  the  iron  had  been  ascertained,  had  they  not  relied  upon  the  posi- 
tive statement  of  the  bill  of  lading. 

The  question  of  law  in  the  case  is,  whether  the  consignees,  who 
have  advanced  money  on  the  faith  of  a  clean  bill  of  lading  signed  by 
the  master  and  owner  of  a  vessel,  and  have  been  injured  thereby, 
can  recoup,  in  an  action  for  freight-money  brought  by  such  master, 
so  much  of  their  loss  as  does  not  exceed  the  libellant's  claim  for 
freight. 

It  is  well  settled  that  as  between  the  shipper  and  the  shipowner 
the  receipt  in  the  bill  of  lading  is  open  to  explanation.  But  the 
point  here  is,  whether  the  master  and  owner  are  concluded  by  posi- 
tive representations  as  to  third  persons  who  have  relied  upon  such 
statements  and  have  suffered  loss  thereby?  Since  the  case  of 
Lickbarrow  v.  Mason,  2  T.  R.  63,  it  has  generally  been  considered 
as  settled  law,  that  a  bill  of  lading  is  a  quasi  negotiable  instrument, 
and  when  goods  are  sold  by  the  consignees  "  to  arrive,"  and  the  bill 
of  lading  is  indorsed  to  the  purchaser,  who  receives  the  same  in 
good  faith,  that  the  consignor's  right  of  stoppage  in  transitu  is  lost. 

The  custom  of  merchants  upon  a  sale  of  goods  which  have  not 
arrived  is,  to  deliver  the  bills  of  lading  to  the  purchaser,  which 
pass  from  successive  vendor  to  vendee,  and  thus  become  a  muniment 
of  title  of  great  value.  In  such  case,  the  only  evidence  which  the 
purchaser  has  of  the  quantity  of  goods  which  he  has  bought,  may 
be  the  statement  of  the  master  in  the  bill  of  lading.  This  declara- 
tion is  oftentimes  the  only  source  of  information  upon  which  the 
purchaser  can  safely  rely. 

It  then  becomes  the  duty  of  the  master  to  see  to  it  that  innocent 
purchasers  are  not  deceived  by  his  incorrect  or  uncertain  represen- 
tations. In  case  purchasers  are  deceived,  a  corresponding  legal 
liability  should  be  imposed  upon  him  to  make  good  the  loss  which 
he  has  caused.  Had  the  New  Haven  Rolling  Mill  Company  sold 
the  iron  while  in  transit,  and  had  the  purchaser,  relying  upon  the 
representations  of  the  bill  of  lading,  paid  for  the  full  amount  therein 


THE    BILL    OF   LADING.  579 

stated,  there  can  be  little  doubt  that  the  master,  being  also  the 
owner,  would  have  been  considered  bound  by  his  statements,  at  least 
to  the  extent  of  his  freight-money. 

I  see  no  reason  why  his  liability  should  be  diminished  when  the 
person  who  is  deceived  is  the  consignee  named  in  the  bill  of  lading. 
If  the  consignee  has  not  been  misled,  and  has  not  suffered  loss,  in 
consequence  of  the  bill  of  lading,  he  has  no  cause  of  complaint. 
But  if  it  is  found  that  a  loss  has  been  suffered,  and  that  such  loss 
happened  through  a  reliance  upon  an  erroneous  bill  of  lading,  there 
is  no  just  reason  why  the  person  whose  negligence  has  immediately 
caused  the  injury  should  not  also  bear  the  loss. 

To  this  effect  is  the  decision  of  Judge  Nelson,  in  Bradstreet  v. 
Heran,  2  Blatchf.  C.  C.  R.  116.  This  was  a  libel  in  personam  by 
the  master  to  recover  freight  on  cotton  shipped  from  New  Orleans 
to  New  York  and  consigned  to  the  respondents.  The  court  say : 
"The  consignees  made  large  advances  upon  the  cotton  on  the  faith 
of  the  representation  in  the  bill  of  lading  that  it  was  shipped  in 
good  order.  They  are  justified  in  doing  so,  and  their  security 
should  not  be  lessened  or  impaired  by  permitting  the  master  to 
contradict  his  own  representation  in  that  instrument.  It  might  be 
otherwise  if  the  qaestion  arose  between  the  master  and  the  owner  of 
the  cotton.  The  question  of  damage  might  in  that  case  be  well 
limited  to  that  accruing  in  the  course  of  the  voyage,  notwithstand- 
ing the  bill  of  lading.  But  the  respondents  stand  in  the  light  of 
bona  fide  purchasers,  who  became  such  on  the  faith  of  the  represen- 
tation of  the  master." 

In  case  of  Sears  v.  Wingate,  3  Allen,  103,  the  court  hold  that  the 
master  and  owner  is  bound  by  the  representations  in  the  bill  of 
lading,  when  the  consignee  is  deceived  thereby,  provided  the  state- 
ments are  those  which  the  master  knew  or  ought  to  have  known 
were  erroneous,  and  the  incorrectness  of  which  he  had  the  means  of 
discovering. 

Here  the  cargo  was  weighed  upon  the  dock  at  New  York.  It  is 
not  probable  that  the  master,  unless  exceedingly  diligent,  could 
have  verified  the  accuracy  of  the  weights,  or  have  ascertained  the 
truth  or  incorrectness  of  the  representations  made  to  him  by  the 
consignors.  But  in  my  opinion  it  was  his  duty  either  to  have 
ascertained  the  true  weight,  or  to  have  refused  to  sign  a  clean  bill. 
The  master,  when  he  ignorantly  signs  a  bill  of  lading,  whereby  he 
undertakes  to  deliver  a  specified  quantity,  is  always  in  danger  of 
misleading  a  third  person.  It  is  incumbent  upon  him  to  avoid  that 
danger,  by  refusing  to  sign  a  bill  unless  he  is  satisfied  of  the 
accuracy  of  its  contents. 

It  is  claimed  by  the  libellant  that  the  hundred  and  three  tons 
were  accepted,  and  that  the  freight-money  is  therefore  to  be  paid. 
It  is  true  that  there  was  an  acceptance,  and  that  the  respondents  arc 
liable  for  the  freight-money.     But  they  have  nevertheless  a  right  to 


580  CARRIERS    OF   GOODS. 

recoup  against  this  claim  for  freight,  the  damage  which  they  have 
sustained  in  consequence  of  the  fault  of  the  master  in  the  same 
transaction  which  is  the  subject  of  the  suit;  but  such  recoupment 
cannot  be  to  an  extent  beyond  the  amount  claimed  for  freight. 

The  respondents  can  prosecute  this  claim  for  damage,  either  by 
an  independent  suit  or  libel,  or  they  can  by  recoupment,  "  seek  to 
diminish  or  extinguish  the  libellant's  just  claim."  Kennedy  v. 
Dodge,  1  Benedict,  315;  Nichols  v.  Tremlett,  1  Sprague's  Decis. 
367. 

The  libellant  was  also  entitled  to  a  small  sum  for  demurrage,  but 
as  the  price  of  the  six  tons  of  iron  was  greater  than  the  amount  of 
the  freight-money  and  demurrage,  the  libel  must  be  dismissed. 


DEAN  v.   DRIGGS. 

137  N.  Y.  271 ;  33  N.  E.  R.  326  ;  33  Am.  St.  R.  721 ;  19  L.  R.  A.  302.     1893. 

[Action  to  recover  damages  against  defendant  as  warehouseman  on 
account  of  the  issuance  by  defendant  to  one  Von  Angeren  of  ware- 
house receipts  for  about  twenty  five  hundred  "barrels  Portland 
cement"  to  be  delivered  to  his  order  on  return  of  the  receipts,  it 
appearing  that  plaintiffs  had  become  surety  for  said  Von  Angeren 
on  the  indorsement  to  them  of  such  receipts,  and  had  been  obliged 
to  pay  the  indebtedness  for  which  they  had  become  surety,  Von 
Angeren  having  absconded ;  and  that  when  the  barrels  described  in 
such  receipts  were  opened  they  were  found  to  contain  "  a  hardened 
substance  like  clay  or  mortar,  coarse  in  its  grain  and  different  from 
any  cement"  and  practically  worthless.  The  plaintiffs  relied  upon 
defendant's  statement  in  the  warehouse  receipts  that  he  had  on  stor- 
age Portland  cement  as  therein  recited.  Plaintiffs  claimed  to  have 
been  bona  fide  purchasers  of  the  warehouse  receipts  for  value,  and  that 
defendant  was  bound  to  make  good  the  truth  of  the  statement  therein 
contained  that  he  had  Portland  cement  on  deposit,  and  they  claimed 
damage  to  the  amount  of  the  Von  Angeren  note  ($3500)  which  they 
had  paid,  with  interest  from  the  time  of  such  payment.  The  trial  court 
charged  the  jury  that  plaintiff  was  entitled  to  recover  if  the  material 
in  the  barrels  was  not  Portland  cement,  and  refused  to  charge  on  re- 
quest that  a  warehouseman  incurs  no  liability  to  the  holder  of  a  receipt 
issued  by  him  whenever  the  goods  are  described  according  to  their 
outward  appearance,  marks  and  description,  except  for  their  safe 
custody  and  return,  unless  he  has  knowledge  or  reason  to  believe  that 
such  description  is  untrue,  and  wilfully  misrepresents  the  character 
and  condition  of  the  goods.  Exceptions  were  taken  to  the  charge 
as  given  and  to  the  refusal  to  charge  as  requested.  There  was  a 
verdict  and  judgment  for  plaintiffs  and  defendant  appeals.] 

Peckham,  J.     The  question  in  this  case  is  as  to  the  meaning  of  the 


LIMITATION    OF    LIABILITY.  581 

receipt  issued  by  the  defendant.  Does  it  mean  that  the  warehouse- 
man acknowledges  and  asserts  the  fact  that  the  merchandise  de- 
livered to  him  and  consisting  of  twenty-five  hundred  barrels  does 
in  truth  contain  the  genuine  article,  Portland  cement,  or  does  it 
mean  that  the  warehouseman  has  received  that  number  of  barrels 
bearing  the  usual  appearance  of  barrels  in  which  Portland  cement 
is  packed  and  with  the  usual  marks  and  signs  thereon,  and  repre- 
sented to  him  to  be  Portland  cement,  and  which  he  in  good  faith 
supposes  to  be  that  article  ? 

The  defendant,  at  the  time  he  received  this  merchandise,  was  a 
warehouseman,  and  in  connection  with  his  business  he  had  a  bonded 
warehouse  under  license  from  the  United  States  government,  and  in 
it  he  received  on  storage  imported,  dutiable  merchandise  which  could 
not  be  delivered  until  the  duty  was  paid.  The  goods  in  question 
came  to  the  defendant  from  the  vessels  named  in  the  two  receipts, 
which  vessels  came  from  Marseilles,  France,  from  which  place  Port- 
land cement  is  imported.  The  barrels  came  on  trucks  licensed  to 
transport  bonded  merchandise,  and  when  they  came  in  the  duty  had 
not  been  paid.  They  were  stored  in  the  bonded  warehouse  under 
the  joint  custody  of  the  defendant  and  a  government  officer.  The 
duty  was  subsequently  paid.  The  defendant  testified  that  the  ware- 
houseman had  no  authority  to  open  goods  stored  in  a  bonded  ware- 
house without  permission  of  the  government. 

These  barrels  the  defendant  testified  were  in  character,  appearance 
and  style,  the  same  as  those  in  which  Portland  cement  was  imported. 
The  brand  on  the  barrel  heads  was  "  Wil,  ISTeight  &  Co.,  Portland 
Cement,  Trade  Mark."  There  was  also  a  label  on  each  barrel  to  the 
same  effect,  and  also  some  other  signs  and  letters,  all  of  them  con- 
sistent with  the  idea  that  the  barrels  contained  genuine  Portland 
cement,  and  in  brief  the  whole  external  appearance  of  the  barrel  was 
that  of  one  in  which  Portland  cement  was  usually  imported.  Upon 
these  facts,  the  court  charged  as  above  stated. 

We  think  the  language  of  the  receipts  is  merely  descriptive  of  the 
barrels  which  defendant  received. 

It  is  meant  to  describe  their  outside  appearance  and  that  they  were 
in  truth  marked  and  represented  to  be  Portland  cement.  It  cannot 
be  that  the  language  properly  construed  could  mean  that  the  ware- 
houseman warranted  such  contents.  If  that  were  the  meaning  to  be 
attributed  to  such  a  statement,  the  warehouseman  could  be  safe  only 
after  he  had  examined  critically  and  cautiously  the  contents  of  each 
box  or  barrel  which  he  received.  To  do  so  would  consume  a  great 
deal  of  time,  and  frequently  necessitate  the  employment  of  experts 
who  dealt  in  or  were  judges  of  the  particular  article  claimed  to  be 
delivered,  and  they  would  have  to  make  such  an  examination  of  the 
article  as  its  nature  demanded  before  an  opinion  could  be  arrived  at. 

Any  one  at  all  familiar  with  the  business  of  a  warehouseman  knows 
that  he  could  not  transact  business  if  he  were  first  to  examine  the 


582  CARRIERS   OF    GOODS. 

contents  of  each  package,  barrel  or  box  of  merchandise  which  was 
delivered  to  him  and  so  packed  as  to  cover  and  conceal  the  real  nature 
of  the  goods  delivered.  The  warehouseman  cannot  be  supposed  to 
know  the  contents  of  barrels  or  boxes  so  delivered  to  him.  All  he 
can  be  fairly  charged  with  asserting  by  the  mere  acknowledgment  of 
the  receipt  of  merchandise  thus  described  is  that  the  box  or  barrel  in 
which  it  is  packed  bears  the  same  outward  appearance  as  does  the  box 
or  barrel  in  which  merchandise  of  the  character  described  is  usually 
carried,  and  that  there  is  nothing  unusual  or  out  of  the  ordinary  way 
of  business  in  the  marks,  appearance,  signs,  labels  or  character  of  the 
barrel  or  box  from  that  in  which  goods  of  the  character  described  are 
usually  transported,  and  that  the  articles  have  been  represented  to 
him  and  that  he  believes  them  to  be  as  described. 

It  has  been  urged  that  a  warehouseman  may  easily  protect  him- 
self from  any  liability  by  signing  a  receipt  which  in  so  many  words 
acknowledges  the  receipt  of  barrels  or  boxes  said  to  contain  certain 
described  merchandise,  but  the  contents  of  which  are  unknown  by  the 
warehouseman,  and  which,  therefore,  he  does  not  warrant.  This  is 
true,  but  it  does  not  answer  the  objection  to  a  warranty  which  arises 
out  of  the  transaction  itself.  In  its  very  nature  it  seems  to  me  plain 
that  no  warranty  as  to  contents  can  reasonably  be  implied  under  these 
circumstances  from  the  use  of  such  language  as  these  receipts  con- 
tain. Representations  in  a  bill  of  lading  or  warehouse  receipt  which 
should  be  held  to  be  warranties  should  be  confined  usually  to  those 
which  the  carrier  or  warehouseman  may  ordinarily  be  assumed  to 
have  knowledge  of,  or  which  he  or  his  agents  ought  to  know.  As 
was  said  by  Mr.  Justice  Hoar,  in  Sears  v.  Wingate  (3  Allen,  103,  at 
107),  when  speaking  of  a  bill  of  lading,  the  master  is  estopped  to 
deny  the  truth  of  the  statements  to  which  he  has  given  credit  by  his 
signature,  so  far  as  those  statements  relate  to  matters  which  are  or 
ought  to  be  within  his  knowledge. 

It  is  known  and  understood  that  the  business  of  a  warehouseman 
is  not  that  of  an  inspector  of  property  delivered  to  him,  nor  is  he  an 
insurer  of  the  contents  of  packages.  It  is  no  part  of  the  duty  of  the 
defendant  as  a  warehouseman  to  have  property  inspected  or  its  quality 
warranted,  and  no  proceedings  are  supposed  to  take  place  to  enable  a 
warehouseman  to  become  acquainted  with  the  contents  of  packages 
for  the  very  reason  that  in  his  business  it  is  unimportant  what  such 
contents  are.  The  general  object  of  giving  a  description  of  the  prop- 
erty in  the  receipt,  is  for  purposes  of  identification  only,  so  that  the 
identical  property  delivered  to  the  warehouseman  may  be  delivered 
back  by  him  upon  the  return  of  the  warehouse  receipt,  and  for  such 
purpose  it  is  sufficient  to  describe  the  property  as  it  by  its  external 
appearance  seems  to  be.  Such  a  description  is  not  calculated  to  mis- 
lead any  one  in  regard  to  the  actual  contents  of  the  package.  When 
the  -warehouseman  described  in  this  case  the  outward  appearance  and 
marks  and  the  numbers  on  the  barrels,  he  did  warrant  the  correctness 


THE. BILL   OF    LADING.  583 

of  his  description  so  far  as  to  say  that  the  numbers  stated  were  in 
reality  delivered  and  that  they  were  marked  as  stated,  and  also  that 
there  was  nothing  unusual  in  the  appearance  of  the  barrels  or  in  the 
direction,  marks  or  labels  upon  the  merchandise  which  would  reason- 
ably lead  to  any  suspicion  that  the  contents  were  not  what  they  were 
represented  to  be. 

A  warehouse  receipt  does  not  differ  in  this  respect  from  a  bill  of 
lading.  In  the  one  case  the  warehouseman  agrees  to  keep,  and  in  the 
other  case  the  carrier  agrees  to  transport  the  goods  which  he  receives, 
but  the  acknowledgment  of  delivery  either  to  the  warehouseman  or 
to  the  carrier  is  essentially  the  same  and  the  same  rules  govern  in  the 
interpretation  of  the  receipt.  In  Hastings  v.  Pepper  (11  Pick.  41), 
Shaw,  Ch.  J.,  said  that  the  acknowledging  to  have  received  the  goods 
in  question  in  good  order  and  well  conditioned  would  be  prima  facie 
evidence  that  as  to  all  circumstances  which  were  open  to  inspection 
and  visible,  the  goods  were  in  good  order,  but  the  carrier  could  show 
that  a  loss  did  in  fact  proceed  from  a  cause  existing  at  the  time  of  the 
execution  of  the  bill  of  lading,  if  it  were  not  then  open  and  apparent, 
and  if  he  showed  that  fact  it  would  be  a  defense.  This  statement  is 
approved  in  Nelson  v.  Woodruff  (1  Black  [U.  S.]  156,  at  160). 

In  Warden  v.  Greer  (6  AVatts,  424),  Huston,  J.,  in  delivering  the 
opinion  of  the  Pennsylvania  Supreme  Court,  held  that  generally  a 
bill  of  lading  could  not  be  contradicted,  but  that  if  a  captain  were 
innocently  to  receive  a  barrel  of  corn  instead  of  a  barrel  of  coffee,  or  a 
barrel  of  cider  instead  of  Madeira  wine,  or  a  package  of  cotton  linen 
instead  of  flaxen  linen ;  it  would  seem  that  his  bill  of  lading  would 
not  and  ought  not  to  exclude  him  from  proving  this,  as  the  captain 
does  not  open  or  otherwise  examine  the  casks. 

We  think  the  rule  is  clearly  expressed  in  Hale  v.  Milwaukee  Dock 
Co.  (23  Wis.  276 ;  S.  C,  on  second  appeal,  29  Wis.  482).  It  is  there 
stated  (29  Wis.  at  489)  that  the  warehouseman  or  carrier  in  regard  to 
packages  which  are  so  covered  as  to  conceal  their  contents,  receipts 
them  upon  the  representation  of  the  bailor  and  upon  the  external 
appearance  corresponding  therewith  as  to  contents.  He  is  not 
supposed  to  have  any  actual  knowledge  of  their  contents  and  the 
language  of  the  receipt  is  not  to  be  so  understood.  It  is  a  warranty 
that  the  barrels  are  so  represented  and  so  appear  to  him  to  the  extent 
of  his  knowledge  or  means  of  information  on  the  subject,  and  as  they 
are  represented  and  appear  to  him,  so  he  represents  or  describes  them 
in  his  receipt 

In  the  Wisconsin  case  here  alluded  to,  the  warehouseman  receipted 
for  fifty-four  barrels  of  mess  port.  The  Supreme  Court  held  the 
defendant  at  liberty  to  show  its  readiness  to  re-deliver  the  identical 
property  delivered  to  it  and  that  the  barrels  when  the  defendanl  took 
them  and  unknown  to  it  really  contained  nothing  but  salt.  A  verdict 
for  the  plaintiff  (who  was  a  bona  fide  holder  for  value)  was,  then 
set  aside  and  a  new  trial  granted. 


584  CARRIERS    OF    GOODS. 

It  was  stated  upon  the  argument  here  that  a  different  doctrine  pre- 
vails in  this  state  and  counsel  cited  as  authority  for  such  claim  Jones 
on  Pledges,  §  252.  The  learned  author  does  so  remark  and  the  cases 
of  Meyer  v.  Peck  (28  K  Y.  590);  Armour  v.  Railroad  Co.  (65  id. 
Ill),  and  Miller  v.  Hannibal  &  St.  Jo.  R.  R.  (24  Hun,  607),  are  cited 
as  authority  for  such  alleged  difference. 

In  Meyer  v.  Peck  the  question  did  not  really  arise.  The  facts 
showed  the  draft  was  paid  by  the  defendant  because  drawn  upon 
him  by  his  own  agent  and  without  the  least  reference  to  the  bill 
of  lading.  Chief  Judge  Denio  referred  to  the  principle  as  well  under- 
stood, that  a  bona  fide  indorsee  for  value  of  a  bill  of  lading  could  claim 
the  benefit  of  an  estoppel  in  his  favor  as  against  the  carrier,  and  he 
said  that  such  indorsee  could  rely  upon  the  quantity  of  the  merchan- 
dise acknowledged  in  the  bill  and  might  compel  the  carrier  to  account 
for  the  same,  whether  it  was  placed  on  board  or  not.  But  it  is  clear 
enough  that  a  carrier  thus  situated  ought  to  be  estopped  from  showing 
that  a  less  quantity  was  received,  because  it  was  his  own  carelessness 
in  certifying  to  a  fact  which  was  or  at  any  rate  ought  to  have  been 
within  his  own  or  his  agent's  knowledge.  When  one  has.  advanced 
money  upon  the  faith  of  a  statement  thus  within  the  knowledge  of  the 
person  making  it,  I  think  all  would  agree  that  the  latter  cannot  be 
heard  to  dispute  it.  A  carrier  or  a  warehouseman  is  not,  however, 
supposed  to  know  the  contents  of  merchandise  so  packed  as  to  conceal 
such  contents  and,  therefore,  his  ignorance  cannot  be  said  to  be  care- 
lessness. In  Armour  v.  R.  R.  {supra)  the  same  principle  was  an- 
nounced. The  defendant  acknowledged  in  its  bill  of  lading  the 
receipt  of  a  quantity  of  lard  which  in  fact  it  had  not  received.  Drafts 
were  attached  to  the  bill  and  were  paid  on  the  faith  of  the  defendant's 
acknowledgment  in  the  bill  of  the  receipt  of  the  lard.  It  was  held 
that  the  defendant  was  bound  by  the  acts  of  its  agent  who  signed  the 
bill  of  lading  and  that  it  was  estopped  from  denying  the  receipt  of 
the  lard. 

It  would  seem  as  if  this  decision  were  right  upon  the  plainest  prin- 
ciples of  justice.  A  written  declaration  was  made  that  acknowledged 
the  receipt  of  property  which  in  fact  had  not  been  delivered  and  which 
defendant's  agent  knew  had  not  been  delivered,  but  trusted  that  it  would 
be.  It  was  a  statement  of  that  nature  which  either  was  or  necessarily 
ought  to  have  been  within  the  personal  knowledge  of  the  defendant's 
agents  and  as  to  such  a  statement  another  person  had  the  right  to  be- 
lieve it  and  act  as  if  it  were  true. 

The  case  of  Miller  v.  Hannibal  &  St.  Jo.  R.  R.  Co.  (supra)  was  re- 
versed in  this  court  in  the  90th  N.  Y.  430. 

The  point  under  discussion  in  that  case,  and  the  only  one  to  which 
the  attention  of  this  court  on  appeal  was  directed  was  whether  the 
written  and  printed  part  of  the  bill  of  lading  should  be  read  together, 
so  that  the  printed  part,  which  acknowledged  the  receipt  of  the  mer- 
chandise "in  apparent   good  order,   contents  unknown,"   should    be 


THE   BILL   OF    LADING.  585 

construed  in  connection  with  the  written  part,  which  acknowledged 
the  receipt  of  "  30  bbls.  eggs."  It  was  held  the  whole  should  be  con- 
strued together,  and  that  the  bill  simply  admitted  the  receipt  of  30 
bbls.  described  as  containing  eggs,  but  the  actual  contents  of  which 
were  unknown.  The  judge,  in  the  course  of  his  opinion,  said  that  if 
the  description  of  the  article  were  a  representation  that  the  barrels 
contained  eggs,  plaintiffs  would  have  the  right  to  recover,  citing  the 
case  of  Meyers  v.  Peck  (supra).  It  was  held  that  it  was  not.  Although 
there  was  in  the  bill  of  lading  the  added  expression,  "contours  un- 
known," yet  there  was  no  decision  that  in  the  absence  of  such  expres- 
sion the  description  would  have  amounted  to  a  representation.  That 
question  was  not  before  the  court,  was  not  in  fact  discussed  directly,  and 
was  not  decided.  For  the  reasons  already  suggested,  it  would  seem 
improper  to  so  regard  the  description  of  merchandise  which,  when 
received,  is  so  covered  and  packed  as  to  securely  conceal  the  actual 
contents  from  the  carrier  or  warehouseman. 

In  First  National  Bank  of  Chicago  v.  Dean  [127  N.  Y.  110]  there 
was  a  direct  written  representation  on  the  receipts  that  the  brandy 
was  stored  in  a  '•'  free  warehouse "  of  defendant's,  which  expression 
means  that  the  revenue  tax  or  import  duties  have  been  paid  on  all 
goods  there  deposited.  This  was  a  representation  of  a  fact  which  was 
within  the  knowledge  of  the  defendant,  and  we  held  that  he  could  not 
be  permitted  to  show  that  the  representation  was  untrue  as  against  a 
bona  fide  holder  for  value  of  the  certificates,  who  had  purchased  in 
reliance  upon  the  representation  that  the  brandy  was  "  free."  The 
real  point  in  dispute  there  was,  whether  the  plaintiff  occupied  the 
position  of  such  a  holder. 

From  this  review  of  the  authorities  upon  which  it  was  claimed  that 
the  courts  of  New  York  had  taken  an  exceptional  stand,  I  think  it 
quite  plain  that  in  truth  no  exceptional  doctrine  obtains  here.  I 
think  that  we  in  common  with  the  courts  of  other  states  hold  the 
carrier  or  warehouseman  estopped  in  regard  to  any  error  or  misstate- 
ment in  the  bill  or  receipt  only  when  it  amounts  to  a  representation  as 
to  a  fact  which  was,  or  in  the  ordinary  course  of  business  ought  to 
have  been,  within  his  knowledge  and  which,  therefore,  such  a  third 
person  acting  reasonably  would  have  a  right  to  rely  and  act  upon. 

The  court  below,  however,  has  sustained  the  right  of  the  plaintiffs 
to  recover  in  this  case  chiefly  upon  the  provisions  of  the  Factors'  Act 
of  1858,  as  amended  by  that  of  1866  (Chap.  326  of  the  Laws  of  1858; 
chap.  440,  Laws  1866).  The  first  section  of  the  amended  act  pro- 
hibits a  warehouseman  (among  others)  from  issuing  a  receipt  for  any 
goods  unless  such  goods  shall  have  been  actually  received  into  the 
store  or  upon  the  premises  of  such  warehouseman  at  the  time  of  issu- 
ing the  receipt. 

The  court  held  that  if  the  goods  were  not  Portland  cement  then 
the  receipts  issued  by  the  defendant  were  untruthful  and  a  violation 
of  the  above  cited  first  section  of  the  act. 


586  CARRIERS   OF   GOODS. 

We  think  the  act  was  not  intended  to  and  does  not  reach  this  case. 
It  was  not  passed  in  order  to  transform  a  warehouseman  from  a  mere 
depositary  to  that  of  an  insurer  of  the  kind  and  quality  of  goods 
deposited  with  him.  It  was  not  intended  to  alter  the  law  in  regard  to 
the  character  of  such  a  representation  as  is  contained  in  these  receipts 
or  to  make  it  anything  other  than  a  description  of  property  as  above 
stated.  We  are  quite  clear  the  act  does  not  cover  such  a  case  as  this 
if  we  assume  the  defendant  was  honestly  mistaken  when  he  described 
the  goods  actually  received  by  him  as  Portland  cement.  The  court 
withdrew  from  the  jury  the  question  of  the  knowledge  of  the  defendant 
as  to  the  character  of  the  merchandise  received  by  him  as  entirely  im- 
material, and  hence  we  must  assume  his  ignorance  in  discussing  his 

liability. 

The  English  statute  to  amend  the  law  relating  to  bills  of  lading, 
passed  in  1855  (18  &  19  Vic.  chap.  Ill),  recited  that  "it  frequently 
happens  that  the  goods  in  respect  of  which  bills  of  lading  purport 
to  be  signed  have  not  been  laden  on  board,  and  it  is  proper  that  such 
bills  of  lading  in  the  hands  of  a  bona  fide  holder  for  value  should  not 
be  questioned  by  the  master  or  other  person  signing  the  same  on  the 
ground  of  the  goods  not  having  been  laden  as. aforesaid."  It  was  then 
enacted  that  bills  of  lading  in  the  hands  of  a  consignee  or  indorsee 
for  value,  representing  goods  to  have  been  shipped  on  board  a  vessel, 
should  be  conclusive  evidence  of  such  shipment  as  against  the  master, 
notwithstanding  the  goods  or  some  part  had  not  been  so  shipped, 
unless  the  indorsee  had  notice,  etc. 

This  statute  evidently  referred  to  a  case  where  there  had  been  no 
delivery  of  any  goods  or  only  a  part  delivery  of  the  amount  receipted 
for,  and  we  think  the  section  of  the  acts  of  the  legislature  of  this  state 
above  cited,  refers  to  the  same  kind  of  omission.  Signing  a  receipt 
for  goods  actually  delivered,  but  known  by  the  signer  to  be  something 
other  than  that  described  in  the  receipt,  would  be  a  fraud  and  amount 
to  a  false  representation  for  which  the  signer  would  be  liable  in  any 
event. 

But  this  issue  was  not  submitted  to  the  jury. 

It  is  urged  that  such  a  receipt  is  made  negotiable.  We  do  not  see 
that  its  negotiability  is  of  the  least  importance  in  the  decision  of  this 
question.  That  there  is  a  certain  kind  of  negotiability  attached  to 
this  kind  of  a  receipt  and  to  a  bill  of  lading  is  not  disputed.  (Dows 
v.  Perrin,  16  K  Y.  325;  Dows  v.  Greene,  24  id.  638;  Lickbarrow  v. 
Mason,  1  Smith's  L.  C.  [8th  Am.  ed.]  1159  and  notes ;  §  6,  Factors' 
Acts,  above  cited.) 

It  is  not  the  same  thing  as  the  negotiability  of  a  promissory  note  or 
bill  of  exchange.  It  could  not  be  in  the  nature  of  things,  but  by  the 
indorsement  and  delivery  of  such  a  receipt  or  bill  of  lading,  the  in- 
dorsee for  value  and  without  notice  is  entitled  to  hold  the  property 
represented  thereby  under  the  circumstances  stated  in  the  above  men- 
tioned acts. 


THE   BILL   OF   LADING.  587 

In  this  case  the  plaintiffs  are  entitled  to  be  treated  as  the  owners  of 
the  property  which  was  deposited  with  defendant,  and  they  are  entitled 
to  its  re-delivery  to  them  upon  payment  of  the  charges,  just  the  same 
as  the  original  owner  would  have  been  but  for  the  transfer.  When, 
however,  the  plaintiffs  demand,  not  the  identical  property  which  was 
deposited  with  the  defendant,  but  such  property  as  would  have  been 
deposited  had  the  description  in  the  receipt  been  correct,  the  right 
to  demand  such  a  delivery  must  be  based  not  upon  the  mere  transfer  of 
the  receipt,  but  upon  the  principle  of  estoppel;  such  a  principle  as 
precludes  a  party  who  has  made  a  representation  upon  which  another 
has  acted  from  denying  the  truth  of  that  representation.  Obviously 
the  first  inquiry  must  be  whether  such  a  representation  has  been 
made,  and  when  it  turns  out  that  it  has  not,  the  estoppel  falls  to  the 
ground.  We  have  seen  that  the  character  of  the  representations  made 
by  defendant  was  nothing  more  than  that  he  had  in  fact  received 
twenty-five  hundred  barrels  of  what  purported  to  be  and  was  described 
to  him  as  and  what  he  believed  was  Portland  cement,  packed  as  such 
cement  was  usually  packed  and  bearing  the  outward  indicia  of  such 
article.  There  is  in  such  case  no  room  for  the  application  of  that 
principle  which  decrees  that  when  one  of  two  equally  innocent  per- 
sons must  suffer  from  the  fraud  of  a  third,  that  one  should  suffer  who 
has  enabled  the  third  person  to  commit  the  fraud. 

Upon  the  proper  construction  given  to  the  language  of  the  receipt 
the  representation  contained  therein  was  true.  If,  however,  the 
plaintiffs  chose  to  regard  a  mere  description  of  the  outward  appear- 
ance of  property  packed  in  barrels  as  a  representation  and  warranty 
by  defendant  that  the  contents  were  actually  as  described  in  the 
receipt  and  to  advance  money  upon  the  faith  of  such  alleged  repre- 
sentations, the  fault  lies  wholly  with  the  plaintiffs,  who  placed  a 
degree  of  faith  in  the  correctness  of  the  description  which  was  totally 
unwarranted  from  the  nature  of  the  transaction  and  for  which  the 
defendant  ought  not  to  be  held  responsible. 

Our  conclusion  is  that  the  trial  judge  erred  in  his  charge  to  the  jury 
above  quoted,  and  in  his  refusals  to  charge  as  above  requested,  and 
for  such  errors  the  judgment  should  be  reversed  and  a  new  trial 
ordered,  with  costs  to  abide  the  event. 

All  concur. 

Judgment  reversed. 


588  CARRIERS    OF    GOODS. 


THE   IDAHO. 

93  U.  S.  575.     1876. 
[For  this  case,  see  infra,  p.  690.] 


POLLARD  v.   VINTON. 

105  U.  S.  7.     1881. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Kentucky. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Justice  Miller.  The  defendant  in  error,  who  was  also 
defendant  below,  was  the  owner  of  a  steamboat  running  between 
the  cities  of  Memphis,  on  the  Mississippi  River,  and  Cincinnati,  on 
the  Ohio  River,  and  is  sued  on  a  bill  of  lading  for  the  non-delivery 
at  Cincinnati  of  one  hundred  and  fifty  bales  of  cotton,  according  to 
its  terms.  The  bill  of  lading  was  in  the  usual  form,  and  signed 
by  E.  D.  Cobb  &  Co.,  who  were  the  general  agents  of  Vinton  for 
shipping  purposes  at  Memphis,  and  was  delivered  to  Dickinson, 
Williams  &  Co.  at  that  place.  They  immediately  drew  a  draft  on 
the  plaintiffs  in  New  York,  payable  at  sight,  for  $ 5,900,  to  which 
they  attached  the  bill  of  lading,  which  draft  was  duly  accepted  and 
paid.  No  cotton  was  shipped  on  the  steamboat,  or  delivered  at  its 
wharf,  or  to  its  agent  for  shipment,  as  stated  in  the  bill  of  lading, 
the  statement  to  that  effect  being  untrue. 

These  facts  being  undisputed,  as  they  are  found  in  the  bill  of 
exceptions,  the  court  instructed  the  jury  to  find  a  verdict  for  the 
defendant,  which  was  done,  and  judgment  rendered  accordingly. 
This  instruction  is  the  error  complained  of  by  the  plaintiffs,  who 
sued  out  the  present  writ. 

A  bill  of  lading  is  an  instrument  well  known  in  commercial 
transactions,  and  its  character  and  effect  have  been  defined  by  judi- 
cial decisions.  In  the  hands  of  the  holder  it  is  evidence  of  owner- 
ship, special  or  general,  of  the  property  mentioned  in  it,  and  of  the 
right  to  receive  said  property  at  the  place  of  delivery.     Notwith- 


THE    BILL.  OF   LADING.  589 

standing  it  is  designed  to  pass  from  hand  to  hand,  with  or  without 
indorsement,  and  it  is  efficacious  for  its  ordinary  purposes  in  the 
hands  of  the  holder,  it  is  not  a  negotiable  instrument  or  obligation 
in  a  sense  that  a  bill  of  exchange  or  a, promissory  note  is.  Its 
transfer  does  not  preclude,  as  in  those  cases,  all  inquiry  into  the 
transaction  in  which  it  originated,  because  it  has  come  into  hands 
of  persons  who  have  innocently  paid  value  for  it.  The  doctrine  of 
lonafide  purchasers  only  applies  to  it  in  a  limited  sense. 

It  is  an  instrument  of  a  twofold  character.  It  is  at  once  a  receipt  • 
and  a  contract.  In  the  former  character  it  is  an  acknowledgment 
of  the  receipt  of  property  on  board  his  vessel  by  the  owner  of  the 
vessel.  In  the  latter  it  is  a  contract  to  carry  safely  and  deliver. 
The  receipt  of  goods  lies  at  the  foundation  of  the  contract  to  carry 
and  deliver.  If  no  goods  are  actually  received,  there  can  be  no 
valid  contract  to  carry  or  to  deliver. 

To  these  elementary  truths  the  reply  is  that  the  agent  of  defendant 
has  acknowledged  in  writing  the  receipt  of  the  goods,  and  promised 
for  him  that  they  should  be  safely  delivered,  and  that  the  principal 
cannot  repudiate  the  act  of  his  agent  in  this  matter,  because  it  was 
within  the  scope  of  his  employment. 

It  will  probably  be  conceded  that  the  effect  of  the  bill  of  lading 
and  its  binding  force  on  the  defendant  is  no  stronger  than  if  signed 
by  himself  as  master  of  his  own  vessel.  In  such  case  we  think  the 
proposition  cannot  be  successfully  disputed  that  the  person  to  whom 
such  a  bill  of  lading  was  first  delivered  cannot  hold  the  signer 
responsible  for  goods  not  received  by  the  carrier. 

Counsel  for  plaintiffs,  however,  say  that  in  the  hands  of  subse- 
quent holders  of  such  a  bill  of  lading,  who  have  paid  value  for  it  in 
good  faith,  the  owner  of  the  vessel  is  estopped  by  the  policy  of  the 
law  from  denying  what  he  has  signed  his  name  to  and  set  afloat  in 
the  public  market.  However  this  may  be,  the  plaintiffs'  counsel 
rest  their  case  on  the  doctrine  of  agency,  holding  that  defendant  is 
absolutely  responsible  for  the  false  representations  of  his  agent  in 
the  bill  of  lading. 

But  if  we  can  suppose  there  was  testimony  from  which  the  jury 
might  have  inferred  either  mistake  or  bad  faith  on  the  part  of  Cobb 
&  Co.,  we  are  of  opinion  that  Vinton,  the  shipowner,  is  not  liable 
for  the  false  statement  in  the  bill  of  lading,  because  the  transaction 
was  not  within  the  scope  of  their  authority. 

If  we  look  to  the  evidence  of  the  extent  of  their  authority,  as 
found  in  the  bill  of  exceptions,   it  is  this  short  sentence:  — 

"During  the  month  of  December,  1873"  (the  date  of  the  bill  of 
lading),  "the  firm  of  E.  D.  Cobb  &  Co.,  of  Memphis,  Tennessee, 
were  authorized  agents  of  the  defendant  at  Memphis,  with  power  to 
solicit  freights  and  to  execute  and  deliver  to  shippers  bills  of  lading 
for  freight  shipped  on  defendant's  steamboat,  '  Ben  Franklin.' 

This  authority  to  execute  and  deliver  bills  of  lading  has  two  limi- 


590  CARRIERS    OF    GOODS. 

fcations;  namely,  they  could  only  be  delivered  to  shippers,  and  they 
could  only  be  delivered  for  freight  shipped  on  the  steamboat. 

Before  the  power  to  make  and  deliver  a  bill  of  lading  could  arise, 
some  person  must  have  shipped  goods  on  the  vessel.  Only  then 
could  there  be  a  shipper,  and  only  then  could  there  be  goods  shipped. 
In  saying  this,  we  do  not  mean  that  the  goods  must  have  been 
actually  placed  on  the  deck  of  the  vessel.  If  they  came  within  the 
control  and  custody  of  the  officers  of  the  boat  for  the  purpose  of 
shipment,  the  contract  of  carriage  had  commenced,  and  the  evidence 
of  it  in  the  form  of  a  bill  of  lading  would  be  binding.  But  without 
such  a  delivery  there  was  no  contract  of  carrying,  and  the  agents  of 
defendant  had  no  authority  to  make  one. 

They  had  no  authority  to  sell  cotton  and  contract  for  delivery. 
They  had  no  authority  to  sell  bills  of  lading.  They  had  no  power 
to  execute  these  instruments  and  go  out  and  sell  them  to  purchasers. 
No  man  had  a  right  to  buy  such  a  bill  of  lading  of  them  who  had 
not  delivered  them  the  goods  to  be  shipped. 

Such  is  not  only  the  necessary  inference  from  the  definition  of 
the  authority  under  which  they  acted,  as  found  in  the  bill  of  excep- 
tions, but  such  would  be  the  legal  implication  if  their  relation  to 
defendant  had  been  stated  in  more  general  terms.  The  result  would 
have  been  the  same  if  it  had  been  merely  stated  that  they  were  the 
shipping  agents  of  the  owner  of  the  vessel  at  that  point. 

It  appears  to  us  that  this  proposition  was  distinctly  adjudged  by 
this  court  in  the  case  of  Schooner  Freeman  v.  Buckingham,  18 
How.  182. 

In  that  case  the  schooner  was  libelled  in  admiralty  for  failing  to 
deliver  flour  for  which  the  master  had  given  two  bills  of  lading, 
certifying  that  it  had  been  delivered  on  board  the  vessel  at  Cleve- 
land, to  be  carried  to  Buffalo  and  safely  delivered.  The  libellants, 
who  reside  in  the  city  of  New  York,  had  advanced  money  to  the 
consignee  on  these  bills  of  lading,  which  were  delivered  to  them. 
It  turned  out  that  no  such  flour  had  ever  been  shipped,  and  that  the 
master  had  been  induced,  by  the  fraudulent  orders  of  a  person  in 
control  of  the  vessel  at  the  time,  to  make  and  deliver  the  bills  of 
lading  to  him,  and  that  he  had  sold  the  drafts  on  which  libellants 
had  paid  the  money  and  received  the  bills  of  lading  in  good  faith. 

A  question  arose  how  far  the  claimant,  who  was  the  real  owner, 
or  general  owner,  of  the  vessel  could  be  bound  by  the  acts  of  the 
master  appointed  by  one  to  whom  he  had  confided  the  control  of  the 
vessel;  and  the  court  held  that,  having  consented  to  this  delivery  of 
the  vessel,  he  was  bound  by  all  the  acts  by  which  a  master  could 
lawfully  bind  a  vessel  or  its  owner. 

The  court,  in  further  discussing  the  question,  says:  "Even  if  the 
master  had  been  appointed  by  the  claimant,  a  wilful  fraud  com- 
mitted by  him  on  a  third  person  by  signing  false  bills  of  lading 
would  not  be  within  his  agenc}".     If  the  signer  of  a  bill  of  lading 


THE    BILL    OF   LADING.  591 

was  not  the  master  of  the  vessel,  no  one  would  suppose  the  vessel 
bound;  and  the  reason  is,  because  the  bill  is  signed  by  one  not  in 
privity  with  the  owner.  But  the  same  reason  applies  to  a  signature 
made  by  a  master  out  of  the  course  of  his  employment.  The  t 
assumes  the  risk,  not  only  of  the  genuineness  of  the  signature,  and 
of  the  fact  that  the  signer  was  master  of  the  vessel,  but  also  of  the 
apparent  authority  of  the  master  to  issue  the  bill  of  lading.  \Y<: 
say  the  apparent  authority,  because  any  secret  instructions  by  the 
owner,  inconsistent  with  the  authority  with  which  the  ma 
appears  to  be  clothed,  would  not  affect  third  persons.  But  the 
master  of  a  vessel  has  no  more  apparent  authority  to  sign  bills  of 
lading  than  he  has  to  sign  bills  of  sale  of  the  ship.  He  has  an 
apparent  authority,  if  the  ship  be  a  general  one,  to  sign  bills  of 
lading  for  cargo  actually  shipped;  and  he  has  also  authority  to  sign 
a  bill  of  sale.of  the  ship  when,  in  case  of  disaster,  his  power  of  sale 
arises.  But  the  authority  in  each  case  arises  out  of  and  depends 
upon  a  particular  state  of  facts.  It  is  not  an  unlimited  authority 
in  one  case  more  than  in  the  other;  and  his  act  in  either  case  does 
not  bind  the  owner  even  in  favor  of  an  innocent  purchaser,  if  the 
facts  on  which  his  power  depended  did  not  exist;  and  it  is  incum- 
bent upon  those  who  are  about  to  change  their  condition  upon  the 
faith  of  his  authority,  to  ascertain  the  existence  of  all  the  facts  upon 
which  his  authority  depends." 

The  court  cites  as  settling  the  law  in  this  way  in  England  the 
cases  of  Grant  v.  Norway,  10  C.  B.  665;  Coleman  v.  Riches,  16  id. 
104;  Hubbersty  v.  Ward,  8  Exch.  Rep.  330;  and  Walter  v.  Brewer, 
11  Mass.  99.  See  also  McLean  &  Hope  v.  Fleming,  Law  Rep.  2  H. 
of  L.  Sc.  128;  Maclachlan's  Law  of  Merchant  Shipping,  368,  369. 

It  seems  clear  that  the  authority  of  E.  D.  Cobb  &  Co.,  as  shipping 
agents,  cannot  be  greater  than  that  of  the  master  of  a  vessel  trans- 
acting business  by  his  ship  in  all  the  ports  of  the  world. 

And  we  are  unable  to  see  why  this  case  is  not  conclusive  of  the 
one  before  us,  unless  we  are  prepared  to  overrule  it  squarely.  The 
very  questions  of  the  power  of  the  agent  to  bind  the  owner  by  a  bill 
of  lading  for  goods  never  received,  and  of  the  effect  of  such  a  bill  of 
lading  as  to  innocent  purchasers  without  notice,  were  discussed  and 
were  properly  in  the  case,  and  were  decided  adversely  to  the  prin- 
ciples on  which  plaintiffs'  counsel  insist  in  this  case.  Numerous 
other  cases  are  cited  in  the  brief  of  counsel  in  support  of  these 
views,  but  we  deem  it  unnecessary  to  give  them  more  special  notice. 

The  case  of  New  York  &  New  Haven  Railroad  Co.  v.  Schuyler, 
34  N.  Y.  30,  is  much  relied  on  by  counsel  as  opposed  to  this 
principle. 

Whatever  may  be  the  true  rule  which  characterizes  actions  of 
officers  of  a  corporation  who  are  placed  in  control  as  the  governing 
force  of  the  corporation,  which  actions  are  at  once  a  fraud  on  the 
corporation   and  the   parties  with   whom   they   deal,    and    how   fai 


592  CARRIERS    OF    GOODS. 

courts  may  yet  decide  to  hold  the  corporations  liable  tor  such  exer- 
cise of  power  by  their  officers,  they  can  have  no  controlling  influence 
over  cases  like  the  present.  In  the  one  before  us  it  is  a  question  of 
pure  agency,  and  depeuds  solely  on  the  power  confided  to  the  agent. 

In  the  other  case  the  officer  is  the  corporation  for  many  purposes. 
Certainly  a  corporation  can  be  charged  with  no  intelligent  action, 
or  with  entertaining  any  purpose,  or  committing  any  fraud,  except 
as  this  intelligence,  this  purpose,  this  fraud,  is  evidenced  by  the 
actions  of  its  officers.  And  while  it  may  be  conceded  that  for  many 
purposes  they  are  agents,  and  are  to  be  treated  as  the  agents  of  the 
corporation  or  of  the  corporators,  it  is  also  true  that  for  some  pur- 
poses they  are  the  corporation,  and  their  acts  as  such  officers  are 
its  acts. 

We  do  not  think  that  case  presents  a  rule  for  this  case. 

Judgment  affirmed. 


SIOUX  CITY  AND  PACIFIC  RAILROAD  COMPANY, 
Plaintiff  in  Error,  v.  FIRST  NATIONAL  BANK  OF 
FREMONT,    Defendant   in   Error. 

10  Neb.  556.     1880. 

Maxwell,  Ch.  J.         .......         . 

It  will  be  seen  that  the  object  of  the  action  is  to  hold  the  railroad 
company  liable  on  two  bills  of  lading  executed  by  its  station  agent 
to  one  Watkins,  one  of  said  bills  being  dated  Nov.  13th,  1877,  for 
two  cars  of  wheat,  and  the  other  dated  Nov.  15th,  1877,  for  three  cars 
of  wheat,  which  bills  of  lading  were  transferred  to  the  bank,  the 
bank  advancing  $1,500  on  them,  relying  on  the  statements  therein 
contained  that  Watkins  had  shipped  five  full  cars  of  wheat,  when  in 
fact  the  cars  mentioned  in  the  first  receipt  contained  about  one-half 
a  car-load  of  wheat  and  about  one-half  a  car-load  of  barley,  and  the 
three  cars  mentioned  in  the  second  receipt  were  never  in  fact  shipped, 
and  no  wheat  was  in  fact  received  by  the  railroad  company  at  the 
time  the  receipt  was  given.  Is  the  company  liable  under  such  cir- 
cumstances upon  the  bills  of  lading?  In  the  case  of  Grant  v.  Nor- 
way, 2  Eng.  Law  and  Eq.  337,  it  was  held  that  the  master  of  a  ship 
has  no  general  authority  to  sign  a  bill  of  lading  for  goods  which  are 
not  put  on  board  the  vessel;  and  consequently  the  owners  of  the  ship 
are  not  responsible  to  parties  taking  a  bill  of  lading  which  has  been 
signed  by  the  master  without  receiving  the  goods  on  board.  This 
case  was  decided  in  the  common  pleas  in  1851.  No  authorities 
are  cited  by  the  court  to  sustain  its  position,  the  court  saying: 
"There  is  but  little  to  be  found  in  the  books  on  this  subject;  it  was 
discussed  in  the  case  of  Berkleys.  Watling,  7  Ad.  and  El.  29;  but 


THE   BILL   OF  LADING.  593 

that  case  was  decided  on  another  point,  although  Littledale,  J.,  said 
in  his  opinion  the  bill  of  lading  was  not  conclusive  under  similar 
circumstances  on  the  shipowner."  This  decision  was  followed  in 
Hubbersty  v.  Ward,  18  id.  551,  in  the  Court  of  Exchequer,  Pollock, 
C.  B.,  placing  the  decision  upon  a  lack  of  power  in  the  master. 
See  also  Coleman  v.  Riches,  29  id.  329.  These  decisions  were 
followed  by  the  Supreme  Court  of  the  United  States  in  the  case  of 
the  Schooner  Freeman  v.  Buckingham,  18  How.  182.  In  that  case 
the  claimant,  being  the  sole  owner  of  the  schooner  named,  contracted 
with  one  John  Holmes  to  sell  it  to  him  for  the  sum  of  $10,000, 
payable  by  instalments  at  different  dates.  By  the  terms  of  the 
contract  John  Holmes  was  to  take  possession  of  the  vessel,  and  if 
he  should  make  all  the  agreed  payments,  the  claimant  was  to  con- 
vey to  him.  The  vessel  was  delivered  to  Holmes  under  this  con- 
tract, and  he  had  paid  one  instalment,  the  only  one  which  had  become 
due.  Holmes  permitted  his  son,  Sylvanus  Holmes,  to  have  the 
entire  control  and  management  of  the  vessel  and  to  appoint  the 
master.  Sylvanus  Holmes  transacted  business  under  the  style  of  S. 
Holmes  &  Co.,  and  the  flour  mentioned  in  the  bills  of  lading  as  hav- 
ing been  shipped  by  him  was  never  in  fact  shipped,  the  master 
having  been  induced  to  sign  the  bills  of  lading  by  fraud  and  impo- 
sition. The  question  before  the  court  is  thus  stated  in  the  opinion : 
"But  the  real  question  is,  whether  in  favor  of  a  bona  fide  holder  of 
such  bills  of  lading  procured  from  the  master  by  the  fraud  of  an 
owner  pro  Jiac  vice,  the  general  owner  is  estopped  to  show  the  truth, 
as  undoubtedly  the  special  owner  would  be."  It  was  held  that  the 
maritime  law  gave  no  lien  upon  the  vessel,  and  that  the  general 
owner  thereof  was  not  estopped  from  alleging  and  proving  the  facts. 
In  the  case  of  Dean  v.  King,  22  Ohio  State,  118,  it  was  held  in  an 
action  by  the  shipper  against  the  owner  of  a  steamboat  engaged  in 
the  business  of  common  carriers,  to  recover  for  goods  as  per  bill  of 
lading,  that  the  defendants  are  liable  only  for  so  much  of  the  goods 
as  was  actually  received  on  the  boat  or  delivered  to  some  one  author- 
ized to  receive  freight  on  her  account.  This  seems  to  have  been 
an  action  between  the  original  parties.  In  Dickersori  v.  Seelye,  12 
Barb.  99,  the  court  held  that  as  between  the  shipper  of  the  goods 
and  the  owner  of  the  vessel  a  bill  of  lading  may  be  explained  as  to 
the  quantity  and  condition  of  the  goods,  yet  it  cannot  be  so  explained 
as  between  the  owner  of  the  vessel  and  a  consignee  or  assignee  of 
the  bill  of  lading  who  has  in  good  faith  advanced  money  on  the 
strength  of  it,  and  has  thus  been  induced  by  the  master's  signing 
the  bill  to  do  an  act  changing  the  situation  of  the  parties.  In  such 
case  the  bill  of  lading  is  conclusive  on  the  owner  in  respect  to 
the  quantity  of  goods.  The  court  say:  "As  between  the  owner  of 
the  vessel  and  an  assignee  for  a  valuable  consideration  paid  on  the 
strength  of  the  bill  of  lading,  it  may  not  be  explained;  Portland 
Bank  v.  Stubbs,  6  Mass.   422;  Abbott  on    Shipping,  323-4;  Brad- 


594  CARRIERS    OF    GOODS. 

street  v.  Lees,  M.  S.,  U.  S.  District  Court.  In  such  case  the 
superior  equity  is  with  the  bona  fide  assignee  who  has  parted  with 
his  money  on  the  strength  of  the  bill  of  lading." 

In  the  case  of  Armour  v.  Michigan  C.   R.  R.  Co.,  65  N.  Y.  Ill, 
the  defendant's  agent,  having  authority  to  issue  bills  of  lading,  upon 
delivery  to  him  by  M.  of  a  forged  warehouse  receipt,  issued  to  M. 
two  bills  of  lading,  each  stating  the  receipt  of  a  quantity  of  lard 
consigned   to   plaintiffs    at  New   York,    and  to  be  transported  and 
delivered  to  them.     M.  drew  sight  drafts  on  the  plaintiffs,  to  which 
he  attached  the  bills  of  lading;  these  were  delivered  to  a  bank  and 
were  forwarded  to  New  York,  and  the  drafts  were  paid  by  plaintiff 
upon  the  faith  and  credit  of  the  bills  of  lading.     It  was  held  that 
the  defendant  was  bound  by  the  acts  of  its  agent,  the  same  being 
within  the  apparent  scope  of  his  authority,  and  was  estopped  from 
denying  the  receipt  of  the  lard.     In  the  case  of  the  Savings  Bank  v. 
A.  T.  &  S.  F.  R.  R.  Co.,  20  Kansas,  519,  the  court  held  that  where 
the  agent  of  a  railroad  company  has  authority  to  receive  grain  for 
shipment  over  its  road,  and  issues  in  the  name  of  the  corporation  a 
bill  of  lading  for  each  consignment  received,  and  issues  two  original 
bills   of  lading  for  a  single  consignment,  the  two  bills   of  lading 
having  been  assigned  to  the  bank,  which  advanced  money  thereon 
in  good  faith,  and  the  shipper  being  insolvent  and  having  absconded, 
that  the  railroad  company  was  estopped  by  its  statement  and  promise 
in  the  bill  of  lading  to  deny  that  it  has  received  the  grain  mentioned 
therein.     The  court  say :  "  The  custom  of  grain-dealers  is  to  buy  of 
the  producer  his  wheat,  corn,  barley,  etc.,  then  deliver  the  same  to 
the  railroad  company  for  shipment  to  market.     The  railroad  com- 
pany issues  to  the  shipper  its  bill  of  lading.     The  shipper  takes  his 
bill  of  lading  to  a  bank,   draws  a  draft  upon  his  commission  mer- 
chant or  consignee  against  the  shipment,  and  attaches  his  bill  of 
lading  to  the  draft.     Upon  the  faith  of  the  bill  of  lading  and  with- 
out further  inquiry  the  bank  cashes  the  draft,  and  the  money  is  thus 
obtained  to  pay  for  the  grain  purchased,  or  to  repurchase  other  ship- 
ments.    In  this  way  the  dealer  realizes  at  once  the  greater  value  of 
his  consignments,  and  need  not  wait  for  the  returns  of  the  sale  of 
his  grain  to  obtain  money  to  make  other  purchases.     In  this  way 
the  dealer  with  a  small  capital  may  buy  and  ship  extensively;  and 
while  having  a  capital  of  a  few  hundred  dollars  only,  may  buy  for 
cash  and  ship  grain  valued  at  many  thousands.     This  mode  of  trans- 
acting business  is  greatly  advantageous  both  to  the  shipper  and  the 
producer.     It  gives  the  shipper  who  is  prudent  and  posted  as  to  the 
markets  almost  unlimited  opportunities  for  the  purchase  and  ship- 
ment of  grain,  and  furnishes  a  cash  market  for  the  producer  at  his 
own  door.     It  enables  the  capitalist  and  banker  to  obtain  fair  rates 
of  interest  for  the  money  he  has  to  loan,  and  insures  him,  in  the 
way  of  bills  of  lading,  excellent  security.     It  also  furnishes  addi- 
tional business  to  railroad  companies,  as  it  facilitates  and  increases 


THE    BILL    OF   LADING. 

shipments  to  the  markets.     A  mode  of  doing  business  so  beneficial 
to  so  many  classes  ought  to  receive  the  favoring  recognition  of  the 
courts  to  aid  its  continuance."     The  question  whether  or  not  bills 
of  lading  are  negotiable  does  not  enter  into  the  case.     All  the  ti 
niony  shows  that  the  bills  of  lading  in  controversy  were  issued  by 
an  authorized  agent  of  the  railroad  company,  and  that  he  not  only 
had  authority  to  issue  such  bills,  but  it  was  one  of  the  duties  imp. 
upon  him.     As  against  an  innocent  purchaser  of  the  bills  it  will  not 
do  to  say  that  the  agent  had  authority  to  issue  bills  of  lading  duly 
signed,  only  in  cases  where  shipments  were  made,  and  no  authority 
where  shipments  were  not  made.     The  company  itself  has  invested 
its  own  agent  with  the  authority  to  issue  bills  of  lading,  and  when 
duly  issued  they  are  not  the  bills  of  the  agent,  but  of  the  railroad 
company.     The  representations,   therefore,    thus   made  in  the  bills 
that  the  company  has  received  a  certain  quantity  of  grain  for  ship- 
ment,  is  a  representation  to  any  one   who,    in   good  faith  relying 
thereon,  sees  fit  to  make  advances  on  the  same.     If  these  repre- 
sentations   are  false,  who   should    bear  the   loss?     The   party    who 
appointed,   placed  confidence  in,    and  gave  authority  to  make  the 
bills,  or  the  one  that  in  good  faith,  relying  thereon,   purchased  or 
advanced  money  on  the  same?     In  Lickbarrow  v.  Mason,  2  T.  E. 
63,  1  Smith's  Leading  Cases,  6  Am.  ed.,  1044,  Ashhurst,  J.,  says: 
"We  may  lay  it  down  as  a  broad,  general  principle,  that  whenever 
one  of  two  innocent  persons  must  suffer  by  the  acts  of  a  third,  he 
who  has  enabled  said  third  person  to  occasion  the  loss  must  sustain 
it." 

This  case  presents  every  element  necessary  to  constitute  an 
estoppel  in  pais,  a  representation  made  with  full  knowledge  that  it 
might  be  acted  upon,  and  subsequent  action  in  reliance  thereon,  by 
which  the  defendants  in  error  would  lose  the  amount  advanced  if 
the  representation  is  not  made  good.  This  principle  was  entirely 
overlooked  in  Grant  v.  Norway,  and  the  cases  following  it.  The 
defendant  in  the  court  below  is  therefore  liable  to  the  bank  to  the 
extent  of  the  amount  advanced  on  faith  of  these  bills,  not  exceeding 
the  value  of  the  grain  certified  to  as  having  been  shipped.  Objec- 
tions are  made  to  the  proof  of  the  price  of  wheat  at  Scribner  at  the 
time  stated  in  the  bills,  to  proof  in  reference  to  the  grade  of  wheat 
shipped  from  that  place,  and  to  the  weight  of  an  ordinary  car-load, 
but  as  the  verdict  is  for  several  hundred  dollars  less  than  the 
amount  advanced  by  the  bank  on  the  bills  of  lading  in  question,  and 
much  less  than  it  should  have  recovered,  it  is  unnecessary  to  con- 
sider them.     There  is  no  error  in  the  record  of  which  the  plaintiff 

in  error  can  complain,  and  the  judgment  must  be  affirmed. 

Judgment  affirmed. 


596  CARRIERS   OF   GOODS. 


7.  DELIVERY  BY  CARRIER. 

A.    To  TERMINATE  EXCEPTIONAL  LIABILITY. 

HYDE  v.   NAVIGATION   COMPANY. 
King's  Bench.     5  Term  R.  389.     1793. 

This  was  an  action  on  the  case  against  the  defendants  as  common 
carriers.  The  declaration  stated  that  the  defendants  were  common 
carriers  of  goods  for  hire  from  Gainsborough,  in  the  county  of 
Lincoln,  to  Manchester,  in  the  county  of  Lancaster.  That  the  plain- 
tiffs on  the  28th  September,  1789,  delivered  the  defendants  eighteen 
bags  of  cotton,  to  be  safely  carried  by  the  defendants  from  Gains- 
borough to  Manchester,  and  there  to  be  delivered  to  the  plaintiffs, 
etc.,  and  that  the  defendants  undertook  to  carry  and  convey,  etc., 
and  there  deliver  them,  which  they  neglected,  etc.  The  second 
count  was  upon  a  delivery  of  fourteen  other  bags  of  cotton,  to  be 
carried  by  the  defendants  from  Bromley  Common,  in  the  county  of 
Stafford,  to  Manchester,  and  there  to  be  delivered  to  the  plaintiffs ; 
that  the  defendants  undertook,  etc.,  and  that  the  goods  were  lost 
through  their  negligence. 

It  appeared  at  the  trial  that  the  goods  were  put  on  board  the 
defendant's  barges  at  the  respective  places  mentioned  in  the  decla- 
ration, and  conveyed  therein  along  the  defendant's  navigation  and 
the  Duke  of  Bridgewater's  canal  to  Manchester,  where  they  were 
landed  upon  the  quay,  and  lodged  there  in  the  Duke  of  Bridgewater's 
warehouse,  in  which  place  they  were  consumed  by  an  accidental 
fire  the  same  night.  In  the  bills  made  out  by  the  defendants,  there 
were  charges  of  so  much  for  tonnage  on  the  river  Trent,  so  much 
for  tonnage  on  the  Trent  and  Mersey  Navigation,  so  much  for  the 
Duke  of  Bridgewater's  canal,  so  much  for  warehouse  room  for  the 
Duke  of  Bridgewater;  besides  which,  in  the  bill  for  the  fourteen 
bags  was  a  charge  for  cartage,  which  was  intended  for  the  cartage 
from  the  Duke  of  Bridgewater's  warehouse  to  the  plaintiff's  own 
warehouse  in  Manchester,  and  which  was  paid  by  the  plaintiffs  when 
the  goods  were  put  on  board  the  defendant's  barges;  but  the  charge 
for  warehouse  room  was  merely  received  by  the  defendants  as  agents 
to  the  duke,  and  they  had  no  share  of  the  profit.  It  appeared  also 
to  be  the  practice  of  many  persons  in  Manchester,  for  whom  goods 
were  brought  by  the  defendants,  to  send  their  own  carts  for  the 
goods  from  the  quay  or  warehouse,  but  the  usage  had  uniformly 
been  for  the  cotton  merchants  to  have  their  goods  conveyed  to  their 
own  warehouse  in  carts  furnished  by  the  defendants.  Formerly  the 
defendants   employed   their   own   carts   for  this   purpose,  but   had 


DELIVERY   BY   CARRIER.  597 

latterly  given  up  this  business,   together  with  the  profits   derived 
from  it,  to  a  person  named  Hibbert,  who  was  their  book-keeper ;  and 
the  plaintiffs  knew  that  the  cartage  had  been  received  for  this  man. 
Previous  to  this  transaction  the  defendants  had  circulated  the  fol- 
lowing printed  notice:  "Navigation  from  the  Trent  to  the  .Mersey. 
Conveyance  of  goods  by  land  and  navigation  to  and  from  London, 
Manchester,    Warrington,    Liverpool,    Chester,    most   parts   of   the 
North,  the  Staffordshire  Potteries,   and  their  environs.     The    pro- 
prietors, having  hitherto  labored  under   several  inconvenience 
make    their  conveyance   worthy  the   attention  of  merchants,    etc., 
have  at  length   removed  every  obstacle,   and  can  now  promise  to 
deliver  goods  each  way  in  ten  days  with  the  utmost  punctuality, 
and  at  a  much  reduced  price,  to  an  inland  conveyance,"  etc.     Since 
this  transaction,   upon   the  arrival  of  goods,    etc.,  at   the  quay  at 
Manchester,  the  defendants  have  sent  written  notices  of  the  same  to 
the  owners,  desiring  them  to  order  the  goods  away  as  soon  as  pos- 
sible, as  they  remained  at  the  risk  of  the  owners.     A  verdict  was 
found  for  the  plaintiffs  at  the  sittings    after  last  term   at  Guild- 
hall, before  Lord  Kenyox;  to  set  aside  which  a  rule  having  been 
obtained. 

Lord  Kenyon,  Ch.  J.  This  is  a  question  of  very  general  concern, 
since  few  days  in  the  year  occur  in  which  cases  do  not  arise  that 
may  depend  upon  it;  and  therefore  it  were  to  be  wished  that  this 
case  should  have  called  for  a  decision  upon  the  point,  which  should 
have  left  no  doubt  in  future  respecting  the  extent  to  which  common 
carriers  are  liable.  But  peculiar  circumstances  exist  in  this  case, 
which  render  it  unnecessary  to  decide  the  general  question;  though 
as  the  whole  has  been  argued  at  the  bar,  I  will  give  my  opinion  on 
the  general,  as  well  as  the  particular,  question  made.  I  lay  no 
stress  on  the  circumstances  so  much  relied  on,  that  the  defendants 
named  themselves  on  their  card,  "carriers  by  land  and  navigation;  " 
that  was  introduced  in  order  to  advertise  the  public  that  they  would 
carry  the  whole  distance  from  London  to  the  most  extreme  point, 
including,  in  several  places,  intervals  by  land  between  one  navigable 
cut  and  another;  this,  therefore,  could  have  no  reference  to  the 
article  of  carriage  from  the  navigation  at  Manchester  to  the  plain- 
tiffs' warehouse.  On  the  point  of  law,  the  rule  is  too  clear  to  admit 
of  any  doubt;  the  only  question  is  respecting  the  application  of  the 
facts  in  this  case  to  it.  Whether  at  the  time  when  the  accident 
happened  the  goods  were  in  the  custody  of  the  defendants  as  com- 
mon carriers  ?  because  if  they  were,  by  the  strict  rules  of  the  law 
the  defendants  are  responsible,  carriers  being  insurers  in  all  c 
except  in  two.  That  the  plaintiffs'  goods  were  in  the  custody  of 
the  defendants  as  carriers,  when  they  were  navigated  on  their  own 
canal,  there  is  no  doubt;  it  is  equally  clear  that  they  were  so  during 
the  time  when  they  were  on  the  Duke  of  Bridgewater's  canal,  which 
is  open  to  the  public,  they  paying  the  Duke  tonnage  on  it;  it  is  as 


598  CARRIERS   OF   GOODS. 

clear  that  when  the  goods  arrived  at  Manchester,  they  were  unloaded 
with   due   care  and  circumspection,  and  deposited  in  the  Duke  of 
Bridge  water's  warehouse;  after  this  a  further  act  was  to  be  done, 
the  goods  were  to  have  been  taken  away  in  carts,  but  not  by  the 
defendants,  for,  though  they  formerly  kept  carts  and  carried  away 
the  goods  of  their  customers  to  their  respective  houses,   for  some 
time  past  they  have  ceased  to  have  any  concern  with  the  carts,  or  to 
derive  any  advantage  from  cartage  whatever;  the  carts  themselves 
and  all  the  benefits  arising  from  that  part  of  the  business  belonging 
to  Hibbert.     If  indeed  there  had  been  any  fraud  in  this  transaction, 
as  if  the  defendants  had  induced  the  public  to  believe   that  they 
would  be  responsible  in  all  cases,  and,  in  order  to  excuse  themselves, 
had  relied  on  some  secret  agreement  between  them  and  Hibbert, 
that  might  have  varied  the  case;  but  in  the  first  place  we  cannot 
presume  fraud,  and  in  the  next,  there  are  no  facts  in  the  case  from 
which  we  could  presume  it.     If  the  defendants  here  be  liable,  con- 
sider how  far  the  liability  of  carriers  will  be  extended :  it  will  affect 
the  owners  of  ships  bringing  goods  from  foreign  countries  to  mer- 
chants in  London;  are  they  bound  to  carry  the  goods  to  the  ware- 
houses of  the  merchants  here,  or  will  they  not  have  discharged  their 
duty  on  landing  them  at  the  wharf  to  which  they  generally  come  ? 
It  would  be  strange,  indeed,  if  the  owners  of  a  West  Indiaman  were 
held  liable  for  any  accident  that  happened  to  goods  brought  by  them 
to  England,  after  having  landed  them  at  their  usual  wharf.     The 
instance  of  game,  which  has  been  mentioned  at  the  bar,  shows  the 
general  sense  and  understanding  of  the  public  on  this  subject.     The 
different  claims  of  the  respective  persons  concerned  are  separately 
marked  on  the  direction.     The  carrier  who  receives  a  certain  sum 
for  carrying  the  game,  is  not  bound,  in  consideration  of  that  sum, 
to   deliver  the  goods;    he  has   performed    his    duty  when   he   has 
brought  the  game  to  the  inn  where  he  puts  up ;  then  the  business  of 
the  porter  begins.     I  am  not  aware  that  it  has  ever  been  decided 
that  it  is  the  duty  of  the  carrier  to  deliver  such  goods  at  the  hous6 
of  every  individual  person  to  whom  they  are  directed;  if  it  has,  the 
action  brought  by  Mr.  Price  against  the  keeper  of  the  Bell  Inn  was 
misconceived;  it  should  have  been  brought  against  the  carrier,  and 
not   the  innkeeper;  and  yet  it  did  not   occur   to  the   defendants' 
counsel,  in  that  case,  to  make  such  an  objection.     When  goods  are 
sent  by  a  coach,  a  letter  of  advice  should  also  be  sent  to  the  person 
to  whom  they  are  directed  that  he  may  send  for  them :  or  the  price 
which  the  porter  expects  to  receive  for  delivering  them  will  induce 
such  porter  to  carry  them;  but  the  carriage  and  porterage  constitute 
distinct  charges. 

In  this  case,  however,  there  is  one  peculiar  circumstance,  which 
makes  it  unnecessary  to  decide  the  general  question,  and  that  is  the 
charge  made  by  the  defendants  in  one  of  their  bills  for  the  cartage 
at  Manchester;  for  that  charge  the  defendants  undertook  to  deli vei 


DELIVERY    BY    CAREIER.  599 

the  goods.  Therefore,  without  deciding  the  general  question.  I 
think  the  plaintiffs  are  entitled  to  the  verdict  which  they  have 
obtained.  On  the  general  point,  I  have  great  doubts;  the  leaning 
of  my  mind  at  present  is,  that  carriers  are  not  liable  to  the  extent 
contended  for. 

Ashhurst,  J.  I  am  glad  to  find  one  circumstance  which  puts  the 
case  out  of  all  doubt;  namely,  that  one  of  the  bills  contains  a  charge 
for  the  wharfage  and  cartage;  which  is  decisive  to  show  that  in  this 
case  the  liability  of  the  defendants  continued  until  the  goods  were 
delivered.  Had  it  not  been  for  this  circumstance,  I  should  have 
desired  further  time  to  consider  the  case.  The  inclination  of  my 
opinion  on  the  general  question  is,  that  a  carrier  is  bound  to  deliver 
the  goods  to  the  person  to  whom  they  are  directed.  A  contrary 
decision  would  be  highly  inconvenient,  and  would  open  the  door  to 
fraud;  for  if  the  liability  of  a  carrier  were  to  cease  when  he  had 
brought  the  goods  to  any  inn  where  he  might  choose  to  put  up  his 
coach,  and  a  parcel  containing  plate  or  jewels,  brought  by  him,  were 
lost  before  it  was  delivered  to  the  owner,  the  latter  would  only  have 
a  remedy  against  a  common  porter.  It  has  been  said,  however,  that 
it  is  the  practice  of  many  persons  to  send  to  the  inn  for  their  goods; 
but  that  does  not  prove  that  the  carrier  is  not  bound  to  deliver  them, 
if  they  do  not  send.  If  the  owner  choose  to  send  for  his  goods, 
that  merely  discharges  the  carrier  from  his  liability  in  that  case ;  it 
only  dispenses  with  the  general  obligation  thrown  by  the  law  upon 
the  carrier;  but  it  does  not  apply  to  the  other  cases  where  that 
obligation  is  not  dispensed  with.  But  on  this  question  I  do  not 
mean  to  give  any  decided  opinion. 

Buller,  J.  Upon  the  general  question  my  opinion  coincides  with 
that  given  by  my  brother  Ashhurst;  and  according  to  the  defendants' 
own  argument  great  inconveniences  would  result  to  the  public  from 
adopting  any  other  rule.  According  to  their  argument,  there  must 
be  two  contracts  in  all  cases  where  goods  are  sent  by  a  coach  or  a 
wagon;  but  I  think  the  same  argument  tends  to  establish  the  neces- 
sity of  three, —  one  with  the  carrier,  another  with  the  innkeeper,  and 
a  third  with  the  porter.  But  in  fact  there  is  but  one  contract :  there 
is  nothing  like  any  contract  or  even  communication  between  any 
other  person  than  the  owner  of  the  goods  and  the  carrier;  the  carrier 
is  bound  to  deliver  the  goods,  and  the  person  who  actually  delivers 
them  acts  as  the  servant  of  the  carrier.  This  does  not  militate 
against  the  decision  in  the- action  alluded  to  against  the  innkeeper. 
In  general  it  happens  that  the  innkeeper  in  London  has  some  interi 
or  concern  in  the  coaches  and  wagons  that  put  up  at  his  house;  in 
those  cases  he  is  liable  as  carrier;  but  even  if  this  fact  were  not 
proved  in  that  case,  the  porter  was  considered  as  the  servant  of  the 
innkeeper;  and  if  the  latter  insisted,  by  his  servant,  that  he  would 
not  part  with  the  game  until  he  had  received  more  than  he  was 
entitled  to,  he  was  a  wrong-doer  and  liable  to  an  action  of  trover. 


600  CARRIERS   OF   GOODS. 

It  has  been  said  too,  that  the  place  of  a  porter  is  valuable,  and  is  the 
subject  of  a  purchase ;  but  who  sells  the  place  ?  Who  agrees  with 
him  that  he  shall  be  the  porter  ?  Not  the  person  to  whom  the  goods 
are  sent,  but  the  carrier  aud  the  innkeeper,  whom  I  consider  as  the 
same  person.  But  if  the  innkeeper  have  no  share  in  the  profits  of 
the  carriage,  and  receives  the  goods  for  the  purpose  of  delivering 
them  to  the  owners,  then  the  innkeeper  is  the  servant  of  the  carrier 
as  well  as  the  porter.  Therefore,  whether  there  be  the  innkeeper  and 
the  porter,  or  the  porter  only,  the  carrier  is  liable  in  all  cases  where 
the  goods  are  lost  after  they  get  into  the  hands  of  the  innkeeper  or 
porter,  because  they  are  delivered  to  those  persons  with  the  consent, 
and  as  the  servants,  of  the  carrier.  It  does  not  appear  to  me  that 
the  difficulties  suggested  respecting  foreign  ships  exist.  When 
goods  are  brought  here  from  foreign  countries,  they  are  brought 
under  a  bill  of  lading,  which  is  merely  an  undertaking  to  carry  from 
port  to  port.  A  ship  trading  from  one  port  to  another  has  not  the 
means  of  carrying  the  goods  on  land;  and,  according  to  the  estab- 
lished course  of  trade,  a  delivery  on  the  usual  wharf  is  such  a 
delivery  as  will  discharge  the  carrier. 

In  this  case,  however,  I  have  not  the  least  doubt.  The  expres- 
sion in  the  card,  circulated  by  the  defendants,  "carriers  by  land 
and  navigation,"  cannot  indeed  have  much  weight  for  the  reason 
given;  but  I  rely  on  the  charge  which  the  defendants  compelled  the 
plaintiffs ,  to  pay  before  they  would  engage  to  deliver  the  goods. 
Hibbert  was  originally  a  servant  to  the  defendants;  and  though  he 
has  since,  by  agreement  with  them,  undertaken  the  cartage  on  his 
own  account,  and  received  the  whole  profits  of  it  himself,  that  can- 
not affect  third  persons.  The  different  proprietors  may  divide  the 
profits  among  themselves  in  any  way  they  choose,  but  they  cannot 
by  their  own  agreement  with  each  other  exonerate  themselves  from 
their  liability  to  the  owner  of  the  goods.  The  carriers  have  the 
direction  of  the  goods,  and  are  responsible  for  them  until  they  are 
delivered  to  the  owner;  and  here  the  defendants  insisted  on  receiv- 
ing a  certain  sum  of  money  for  the  whole  expense  of  carrying  and 
delivering,  including  the  identical  charge  of  cartage,  before  they 
would  take  the  goods  into  their  vessel.  If  the  carrier  and  porter 
were  to  make  separate  contracts  with  the  owner  of  the  goods,  the 
latter  would  at  least  have  the  option  of  sending  his  own  carts  to 
bring  away  his  goods;  whereas  here  the  defendants  put  the  goods 
into  the  Duke  of  Bridgewater's  warehouse  at  once,  in  order  to  send 
them  afterwards  to  the  plaintiffs  by  a  particular  cart  of  their  own. 
The  defendants  say,  however,  that  they  are  warehouse-men  as  well 
as  carriers.  That  they  may  fill  those  two  different  characters  at 
different  times,  I  am  ready  to  admit;  but  I  deny  that  they  can  be 
both  warehouse-men  and  carriers  at  the  same  instant.  In  this  case 
they  received  the  goods  in  the  capacity  of  carriers;  and,  as  the 
engagement  was  to  carry  and  deliver  them,  the  goods  remained  in 


DELIVERY   BY    CARRIER.  G01 

their  custody  as  carriers  the  whole  time.  The  case  of  Garside 
against  these  defendants  is  perfectly  distinguishable  from  the 
present:  there  the  engagement  on  the  part  of  the  defendants  was 
merely  to  carry  the  goods  to  Manchester;  and,  having  dischaa 
their  duty  in  carrying  them  to  that  place,  their  liability  ceased.  It 
was  proved  in  that  case,  that  if  the  defendants  had  had  the  means 
of  forwarding  the  goods  from  Manchester  to  Stockport,  they  wen- 
ready  to  have  delivered  them  to  the  Stockport  carrier;  but  no  such 
carrier  being  then  arrived,  what  were  the  defendants  to  do?  They 
had  carried  the  goods  to  the  place  of  delivery  according  to  their 
contract,  and  there  being  no  one  there  ready  to  receive  them,  the 
next  thing  to  be  done  was  to  deposit  them  in  a  place  of  safe  custody, 
and  then  their  contract  was  at  an  end.  But  in  this  case  the  contract 
was  not  only  to  carry,  but  to  deliver,  the  goods  at  Manchester;  and 
the  plaintiffs  had  not  the  option  of  taking  them  from  the  quay 
before  they  were  put  into  the  warehouse  by  the  side  of  the  canal. 
The  preference  given  by  the  defendants  to  Hibbert,  respecting  the 
cartage,  is  also  a  material  circumstance :  it  is  like  the  case  of  an 
innkeeper,  who  agrees  with  his  head  hostler,  that  the  latter  shall 
supply  the  customers  with  post-horses;  in  which  case,  if  goods  be 
lost,  the  innkeeper  is  liable,  because  he  holds  himself  out  to  the 
public  as  the  responsible  person,  and  his  engagement  with  his  ser- 
vants cannot  vary  the  contract  between  him  and  the  public.  So,  in 
this  case  Hibbert  was  the  servant  of  the  defendants,  and  the  goods 
were  still  in  the  custody  of  the  defendants  as  carriers,  at  the  time 
when  the  fire  happened. 

Grose,  J.  The  question  in  this  cause  is,  Whether  the  plaintiff's 
goods,  when  they  were  consumed  by  the  fire,  were  or  were  not  in 
the  custody  of  the  defendants  as  common  curriers?  Undoubtedly 
they  were  so,  unless  the  defendants  had,  according  to  their  under- 
taking, delivered  them  to  the  plaintiffs.  And  then  arises  the 
material  question,  Whether  the  delivery  of  the  goods  at  the  ware- 
house at  Manchester  were  a  delivery  to  the  plaintiffs?  It  seems  to 
me  that  upon  the  circumstances  of  this  case  it  cannot  be  considered 
to  be  a  delivery  to  them.  Whether  it  be  or  be  not  a  delivery,  may 
depend  on  the  general  custom  of  the  trade,  or  the  particular  usage 
which  has  prevailed  between  the  parties  themselves.  As  to  the 
general  custom,  it  is  a  strong  circumstance  against  the  defendants 
that  the  cotton  merchants  have  never  been  accustomed  to  send  their 
own  carts  for  their  goods,  but  those  goods  have  been  sent  to  their 
respective  owners  either  by  carts  belonging  to,  or  procured  by,  the 
defendants.  And  in  the  present  case  the  particular  transaction  is 
decisive  against  the  defendants ;  for  the  cartage  was  demanded  of, 
and  paid  by,  the  plaintiffs,  before  the  goods  were  put  on  board  the 
defendants'  vessel;  and  from  that  circumstance  the  defendants 
undertook  to  deliver  the  goods  at  the  place  where  the  carts  wei 
carry  them.     They  did  not  deliver  them  at  that  place;  the  delivery 


602  CARRIERS    OF    GOODS. 

at  the  warehouse  was  not  a  delivery  to  the  plaintiffs  according  to. 
this  contract.  So  much  for  the  circumstances  of  this  case,  which 
leave  no  room  for  doubt.  On  the  general  question  of  law  I  am  not 
so  perfectly  clear,  and  if  it  had  been  necessary  to  have  decided  this 
case  on  the  general  law,  I  should  have  desired  further  time  to  con- 
sider of  it.  As  far,  however,  as  I  have  considered  this  case,  the 
strong  inclination  of  my  opinion  is,  that  the  defendants  would  be 
liable  as  common  carriers.  The  law,  which  makes  carriers  answer- 
able as  insurers,  is  indeed  a  hard  law ;  but  it  is  founded  on  wisdom, 
and  was  established  to  prevent  fraud.  But  it  seems  to  me,  that  it 
would  be  of  little  importance  to  determine  that  carriers  were  liable 
as  insurers,  unless  they  were  also  bound  to  see  that  the  goods  were 
carried  home  to  their  place  of  destination;  since  as  many  frauds 
may  be  practised  in  the  delivery  as  in  the  carriage  of  them.  In 
general  the  carrier  appoints  a  porter  who  provides  a  cart  for  the 
purpose  of  delivering  the  goods ;  but  it  would  be  open  to  an  infinity 
of  frauds,  if  the  carrier  could  discharge  himself  of  his  responsibility 
by  delivering  them  to  a  common  porter,  a  person  of  no  substance,  a 
beggar,  of  whose  name  the  owner  of  the  goods  never  heard,  and 
against  whom,  in  the  event  of  the  goods  being  lost,  there  could  be 
no  substantial  remedy.  In  this  case  the  carriers  fixed  on  the  par- 
ticular warehouse  at  which  the  goods  were  deposited  on  their  arrival 
at  Manchester,  and  made  an  agreement  with  their  own  servant 
Hibbert,  respecting  the  cartage.  The  defendants,  therefore,  ought 
to  be  answerable  for  the  acts  of  those  persons  whom  they  nominate. 
With  respect  to  the  case  of  Garside  against  this  company ;  there  the 
goods  were  delivered  at  least  as  far  as  the  defendants  were  bound  to 
deliver  them.  The  case  of  foreign  goods  brought  to  this  country 
depends  on  the  custom  of  the  trade,  of  which  the  persons  engaged 
in  it  are  supposed  to  be  cognizant:  by  the  general  custom  the  liabil- 
ity of  ship-carriers  is  at  an  end  when  the  goods  are  landed  at  the 
usual  wharf.  On, the  particular  circumstances  of  this  case  I  am 
clearly  of  opinion  that  the  verdict  is  right.  And  on  the  general 
question  of  law,  I  do  not  mean  to  be  bound  by  the  opinion  I  have 
now  given,  though  at  present  I  think  that  common  carriers  are 
answerable  if  the  goods  be  lost  at  any  time  before  they  are  delivered 
to  the  owners.  Rule  discharged. 


BALDWIN,    Plaintiff    in    Error,   v.    AMERICAN    EXPRESS 
COMPANY,    Defendant  in  Error. 

23  111.  197.     1859. 

This  was  an  action  of  assumpsit  brought  at  the  April  Term  of  the 
Cook  County  Circuit  Court  by  the  plaintiff  in  error,  to  recover  the 
value  of  a  package  of   money  which   the  defendant,  as  a  common 


DELIVERY    BY   CARRIER.  603 

carrier,  undertook  to  convey  from  Chicago,  Illinois,  to  Madison, 
Wisconsin,  and  there  to  be  delivered  to  1).  J.  Baldwin,  or  his 
authorized  agents,  and  which  undertaking  the  said  defendant  failed 
to  perform. 

Breese,  J.  The  question  in  this  case  is,  was  there  sufficient 
evidence  of  a  delivery  of  this  package,  or  of  an  offer  to  deliver,  as 
will  discharge  the  liability  of  the  express  company  as  ;i  common 
carrier,  or  change  it  into  the  liability  of  a  depository  simply. 

There  is  no  count  in  the  declaration  against  the  defendant,  charg- 
ing any  other  contract  with  it  than  that  as  a  common  carrier,  and 
consequently,  all  evidence  in  relation  to  the  security  of  the  safe,  or 
the  absence  of  a  night  watch,  is  out  of  the  question.  The  defendant 
can  only  be  liable  as  a  common  carrier,  and  in  no  other  character  on 
this  declaration.  We  do  not  consider  there  is  any  offer  to  deliver 
this  package  either  to  the  officers  of  the  Dane  County  Bank  or  to 
Flowers,  or  to  any  one  in  his  employment  authorized  to  receive  it, 
proved. 

The  testimony  of  Douglas,  the  agent  of  the  express  company, 
taken  in  connection  with  that  of  Memhard,  the  messenger,  of  Tread- 
way,  one  of  the  employees  of  the  bank,  and  of  Brown,  the  cashier 
of  the  bank,  and  of  Willis,  the  clerk  of  Flowers,  all  go  to  show  that 
the.  package  was  not  ever  tendered  by  Douglas  to  either  of  them, 
and  he  shows  most  clearly  that  the  package  was  at  no  time  ready  for 
delivery,  either  to  the  bank  or  to  Flowers,  for  he  says  it  was  the 
custom  at  the  express  office  to  enter  the  packages  received  in  a 
delivery  book,  which  is  also  the  receipt  book,  and  by  which  book 
they  deliver  to  consignees,  who  sign  a  receipt  in  this  delivery  book. 
Now  this  package  was  never  entered  on  this  book,  and  of  course 
was  not  ready  for  delivery. 

The  bank  had  no  opportunity  to  refuse  to  receive  the  package, 
for  it  was  not  offered  to  any  officer  of  the  bank.  One  or  more  of 
them  was  informed  there  was  such  a  package  there  for  Baldwin, 
but  though  the  bank  office  was  not  five  steps  distant,  and  in  the 
same  building  with  the  express  office,  the  express  agent  did  not 
take  it  to  the  bank,  and  there  offer  to  deliver  it.  It  was  not  offered 
to  Flowers,  or  his  clerk,  at  his  place  of  business.  The  clerk  was 
merely  told  by  the  messenger  when  making  his  rounds,  there  was 
a  package  for  Baldwin  at  the  office,  and  the  clerk  said  he  would 
"go  round  and  see  about  it."  When  at  the  office,  the  package  was 
not  offered  to  him,  and  if  it  had  been,  he  would  not  have  been 
authorized  to  receive  it  at  the  office,  it  not  having  been  entered  on 
the  delivery  book,  and  the  custom  of  the  express  company  bein^' 
shown  to  be,  at  Madison,  to  deliver  by  that  book  to  the  consignees 

in  person,  or  to  their  authorized  agent,  at  their  pla< E  business. 

An  offer  to  deliver  at  the  express  office,  if  that  was  proved,  under 
such   circumstances,   amounted  to  nothing. 

Mr.  Fargo,  the  general  agent  of  this  company,  says,  "we  deliver 


604  CARRIERS   OF    GOODS. 

goods  actually  to  the  person,  or  by  notice,"  by  which  we  would 
understand,  that  at  important  towns  on  their  routes,  and  at  the  ter- 
mination of  their  routes  at  important  towns,  they  deliver  personally; 
at  way-stations  by  notice,  and  by  depositing  the  goods  or  packages 
in  a  safe  receptacle,  if  that  be  the  known  custom  of  the  com- 
pany. Such  a  custom  may  be  reasonable,  and  therefore  legal,  and 
if  well-established,  parties  will  be  presumed  as  having  contracted 
with  reference  to  it;  but  at  small  stations,  where  the  business 
will  not  justify  them  in  keeping  a  special  delivery  agent,  prompt 
notice  should  be  given  to  the  consignee,  in  order  to  discharge  them 
from  the  strict  liability  of  common  carriers.  Mr.  Van  Vleet,  the 
check  clerk  in  the  United  States  express  office,  says  that  "the 
general  method  of  conducting  an  express  business  is  to  take  receipts 
in  a  receipt  book,  which  is  called  the  delivery  book."  This  was 
the  custom,  as  proved  by  Douglas  of  the  defendants,  at  Madison. 

The  cases  cited  by  defendant's  counsel,  of  vessels  and  railroad 
companies  delivering  goods  at  their  landings  or  depots  with  or  with- 
out notice,  cannot  meet  such  a  case  as  this,  where  the  undertaking 
is  to  deliver  in  person. 

It  is  the  settled  doctrine  of  England  and  of  this  country,  that 
there  must  be  an  actual  delivery  to  the  proper  person,  at  his  resi- 
dence or  place  of  business,  and  in  no  other  way  can  he  discharge 
himself  of  his  responsibility  as  a  common  carrier,  except  by  proving 
that  he  has  performed  such  engagement,  or  has  been  excused  from 
the  performance  of  it,  or  been  prevented  by  the  act  of  God  or  a  public 
enemy. 

Stephenson  v.  Hart,  4  Bing.  476;  G-arnett  v.  Willan,  5  Barn.  & 
Aid.  53;  Duff  v.  Budd,  3  Brod.  &  Bing.  177;  Hyde  v.  The  Naviga- 
tion Company,  from  the  Trent  to  the  Mersey,  5  T.  R.  389  [596] ;  2 
Kent  Com.  604;  Gibson  v.  Culver,  17  Wend.  305;  Eagle  v.  White, 
6  Wharton,  505;  Moore  v.  Sheindine,  2  Har.  &  McHen.  453;  dick- 
ering v.  Forolm,  4  Mass.  453;  Young  v.  Smith,    3  Dana,  92. 

It  is  necessary,  in  order  to  give  one  security  to  property,  this 
rigid  rule  should  obtain,  and  it  has  for  years  been  enforced  against 
common  carriers.  They  are  considered  as  insurers,  and  are  under 
that  responsibility;  and  to  prevent  litigation,  and  avoid  the  neces- 
sity of  going  into  the  examination  of  matters  difficult  to  be  unrav- 
elled, the  law  very  justly,  in  case  of  loss,  presumes  against  them. 
The  rule  being  so  rigorous,  they  are  entitled  to  demand,  and  do 
demand,  a  compensation  for  their  services  in  full  proportion,  at 
least,  to  the  risks  incurred.  The  company  in  this  case  have  shown 
no  excuse  for  the  non-delivery  of  the  package.  The  facts  and  the 
law  are  against  them.  We  have  not  the  opportunity  to  examine  the 
case  of  Marshall  et  al.  v.  Henry  Wells  et  al.,  in  6  Wisconsin,  7 
Wis.  1,  referred  to  by  defendant's  counsel,  in  which  this  company 
prevailed,  as  is  said,  upon  the  same  state  of  facts  upon  which  we 
have  adjudicated.     We  are  inclined  to  think  there  must  have  been 


DELIVERY   BY   CARRIER.  605 

some  circumstance  in  that  case  not  found  in  this,  which  determi 
the  recovery.     It  may  be  the  proof  in  that  case  showed  the  entry  ol 
the  package  on  the  delivery  book,  and  an  offer  at  the  bank  pi 
after  bank  hours,   and  a  refusal  to  receive  it  on  that  account) 
some  other  controlling  fact  not  appearing  in  this   record. 

If  not  so,  then  we  can  only  say,  we  differ  from  the  Supreme  Court 
of  Wisconsin  in  our  view  of  the  law  upon  the  facts  presented. 

The  judgment  of  the  Circuit   Court  is  reversed,  and  the  cause 
remanded. 


PACKARD  v.    EARL. 
113  Mass.  2S0.     1873. 

Tort  against  the  defendants  as  common  carriers  for  the  loss  of  a 
trunk  and  its  contents,  intrusted  to  them  to  be  carried  from  Provi- 
dence, Rhode  Island,  to  West  Mansfield,  Massachusetts,  and  to  be 
there  delivered  to  the  plaintiff. 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  it  appeared 
that  the  defendants  were  express  carriers  over  the  line  of  the  Boston 
&  Providence  Railroad  from  Providence  to  Boston,  and  intermediate 
stations;  that  the  trunk  was  delivered  to  them  at  their  office  in 
Providence,  on  Saturday,  March  2,  1872,  to  be  carried  by  them  as 
expressmen  to  the  plaintiff  at  West  Mansfield,  a  station  on  the 
railroad ;  that  it  was  marked  "  Henry  M.  Packard,  West  Mansfield ;  " 
that  no  special  directions  as  to  the  delivery  were  given;  that  the 
plaintiff  did  business  in  Wrentham,  during  the  week,  and  was 
accustomed  to  spend  Sundays  at  his  father's  house,  about  one-half 
of  a  mile  from  the  West  Mansfield  station;  that  the  Boston  &  Provi- 
dence Railroad  Company  had  had  a  depot  at  West  Mansfield  for 
about  twenty  years,  where  some  of  their  trains  had  stopped  for 
receiving  and  leaving  passengers  and  merchandise;  that  the  defend- 
ants and  other  express  carriers  on  the  line  of  the  railroad  had  been 
accustomed  to  deliver  and  receive  at  that  station,  parcels,  carried 
and  to  be  carried  by  them  employing  the  station  agent  and  switch- 
tender  as  their  agents;  that  the  amount  of  express  business  there 
was  very  small;  that  no  messenger  had  ever  been  employed  there  by 
any  express  carriers. for  the  delivery  of  goods;  that  it  had  been  the 
uniform  course  of  business  of  all  express  carriers  to  deliver  all 
goods  and  parcels  destined  for  that  place  to  the  station  agent,  who 
kept  them  in  the  baggage-room,  notified  the  consignees  of  their 
arrival,  and  delivered  them  when  called  for  at  the  station. 

Endicott,  J.     It  was  the  duty  of   the  defendants,    as  common 
carriers  of  parcels,  to  deliver  the  trunk  to  the  plaintiff  personal! 
at  his  residence  at  West  Mansfield,  and  until  such  delivery  thei 
liability  as    carriers  continued.     This    liability   they   under! 
limit  by  proof  of  usage  in  their  business  to  leave  packages  sent  to 


C06 


CARRIERS    OF   GOODS. 


West  Mansfield  at  the  station,  with  notice  to  the  consignee  as  a  sub- 
stitute for  personal  delivery.  This  was  not  a  general  usage  of  such 
a  character,  that  a  presumption  of  knowledge  arises  by  mere  force 
of  existence,  and  which  enters  into  and  becomes  part  of  the  agree- 
ment of  the  parties.  It  was  a  particular  usage,  local  in  its  applica- 
tion and  character,  and  confined  to  this  station,  and,  in  order  to  bind 
the  plaintiff,  it  must  be  proved  that  he  knew  it  when  he  made  the 
contract  with  the  defendants  to  carry  the  trunk.  The  instructions 
on  this  point  were  sufficiently  favorable  to  the  defendants.  Stevens 
v.  Reeves,  9  Pick.  198;  Berkshire  Woolen  Co.  v.  Proctor,  7 
Cush.  417. 

•  ••••••••••• 

Exceptions  overruled. 


WITBECK,     Respondent,    v.    HOLLAND,    Treasurer    of     the 
American  Express  Company,   Appellant. 

43  X.  Y.  13.     1871. 

Appeal  from  the  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  district,  affirming  the  judgment  for  the 
plaintiff,  entered  upon  the  report  of  the  referee. 

This  action  was  tried  before  a  referee,  who  found  that  the 
American  Express  Company  was  a  joint  stock  association  engaged 
in  the  general  express  business.  That  the  plaintiff  was  a  soldier  on 
Hart's  Island,  N.  Y.,  who,  having  received  his  bounty  money  on  the 
3d  of  December,  1864,  took  $320  of  it  to  the  office  of  the  Adams 
Express  Company,  on  that  island,  where  it  was  counted,  put  in  an 
envelope,  sealed  and  addressed  to  "Martin  Witbeck,  Schenectady. 
N.  Y.,"  delivered  to  the  agent  of  the  company  who  gave  the  plain- 
tiff a  receipt  acknowledging  the  receipt  of  the  package,  "upon  the 
special  acceptance  and  agreement,  that  this  company  is  to  forward 
the  same  to  its  agent,  nearest  and  most  convenient  to  destination 
only,  and  there  to  deliver  the  same  to  other  parties  to  complete  the 
transportation,  such  delivery  to  terminate  all  liability  of  this  com- 
pany for  such  package,"  etc. 

The  package  was  delivered  by  the  Adams  Express  Company  on  the 
5th  December,  1864,  to  the  American  Express  Company  at  its  office 
in  New  Y"ork,  and  a  receipt  was  given  to  the  Adams  Express 
Company  as  follows :  — 

Received,  New  York,  December  5,  1864,  of  Adams  Express  Company 
(per  bills),  in  good  order,  the  following  articles  set  opposite  their  respective 
names. 


ARTICLES. 

Dollars 

Cents. 

Consignee. 

Where 
from. 

Destination. 

Amount 
charged. 

By  whom 
received. 

Pck. 

• 

$320 

Martin 
Witbeck. 

H.  I. 

Schenectadv, 
N.  Y.    • 

si.::. 

Myers. 

DELIVERY    BY   CARRIER.  607 

Myers  was  the  agent  of  the  American  Express  Company  at  New 
York.  The  plaintiff,  December  8,  1864,  enclosed  the  receipt  in  a 
letter  to  his  brother,  Daniel  Witbeck,  who  resided  at  Schenectady, 
which  letter  and  receipt  were  received  by  Daniel  Witbeck  as  an 
advertised  letter  about  the  middle  of  February,  1865. 

There  was  at  the  time  no  contract  or  business  connection  between 
the  Adams  Express  Company  and  the  American  Express  Company, 
except  that  they  took  parcels,  goods,  etc.,  for  each  other  for  trans- 
portation and  delivery  along  their  respective  routes  of  business. 
The  American  Express  Company  delivered  the  package  to  its  local 
agent  at  Schenectady,  December  6,  1864.  Martin  Witbeck,  the  con- 
signee of  said  package,  resided  with  his  wife  at  Schenectady,  at  the 
time  of  the  arrival  of  the  package  at  Schenectady,  and  until  after 
January  14,  following. 

The  agent  of  the  American  Express  Company  did  not  know  Martin 
Witbeck,  and,  when  the  package  arrived,  looked  at  the  directory 
and  did  not  find  his  name  in  it.  The  next  day  the  agent  filled  up 
a  notice  and  addressed  it  to  Martin  Whitbeck,  Schenectady,  and 
deposited  it  in  the  post-office.  Between  one  and  three  days  there- 
after, the  agent  impaired  of  two  men,  conductors  upon  the  X.  Y. 
Central  Railroad,  running  from  Schenectady  to  Troy,  and  also 
incpiired  of  John  Brandt,  the  city  treasurer  of  Schenectady,  whether 
he  knew  Martin  Whitbeck,  and  they  replied  they  did  not. 

The  agent  made  no  further  effort  to  find  the  consignee,  and  the 
package  was  deposited  in  the  company's  iron  safe  in  its  office  till 
January  17,  1865,  when  the  office  was  burglariously  opened  in  the 
night,  the  safe  blown  open,  the  package  abstracted  and  stolen ,  and 
has  never  been  recovered. 

The  notice  put  in  the  post-office  was  not  received  by  Martin 
Witbeck,  though  inquiries  were  made  several  times  at  the  post-office 
while  it  was  there,  by  his  wife  and  father,  for  letters  for  themselves 
and  for  him. 

The  referee  decided,  among  other  things,  that  the  American 
Express  Company  was  bound  to  deliver  the  package  to  Martin 
Witbeck,  personally,  or  at  his  residence  or  place  of  business;  that 
the  American  Express  Company  did  not  make  due  effort  to  find 
Martin  Witbeck,  or  his  residence  or  place  of  business;  that  the 
plaintiff  was  entitled  to  judgment  for  $320,  with  interest  from 
December  7,  1864. 

From  the  judgment  entered  upon  the  report  the  defendant 
appealed  to  the  General  Term,  where  it  was  affirmed,  and  from 
such  judgment  of  affirmance  this  appeal  was  taken. 

Gkoveb,  J.  The  facts  found  by  the  referee  showed,  beyond 
question,  that  the  defendant  was  a  common  carrier,  and  responsible, 
as  such,  for  property  delivered  to  it  for  transportation.  This  find* 
ing  was  warranted  by  the  evidence.  It  was  engaged  in  transacting 
a  general  express  business.     It  is  insisted  by  the  counsel  for  the 


608  CARRIERS   OF   GOODS. 

defendant  that  its  liability  was  restricted  by  the  contract,  proved  by 
the  receipt  given  by  the  Adams  Express  Company  to  the  plaintiff, 
upon  the  receipt  of  the  money  from  him  by  it  at  Hart's  Island. 
From  this  receipt,  it  appears  that  the  latter  company  undertook  to 
forward  the  package  to  its  agent  nearest  to  its  destination,  there 
to  deliver  it  to  other  parties  to  complete  the  transportation,  such 
delivery  to  terminate  all  liability  of  that  company  for  its  passage. 
There  is  nothing  in  this  or  any  other  restriction  at  all  affecting  the 
liability  of  the  defendant  as  a  common  carrier;  all  the  restrictions 
found  in  the  receipt  are  by  the  language  limited  to  the  liability  of 
the  Adams  Company.  Indeed,  were  they  applicable  to  the  defend- 
ant, they  would  not  affect  the  liability  of  defendant  in  the  action, 
as  they  do  not  include  the  cause  of  the  loss,  unless  they  relieve  the 
carrier  from  the  duty  of  delivery  to  the  consignee.  The  first  inquiry 
is,  whether  it  was  the  duty  of  the  carrier  so  to  deliver  the  package 
in  the  absence  of  any  restriction.  Carriers  by  land  are  bound  to 
deliver  or  tender  the  goods  to  the  consignee  at  his  residence  or  place 
of  business,  and  until  this  is  done  they  are  not  relieved  from  respon- 
sibility as  carriers.  2  Kent's  Com.  605;  Angell  on  Carriers,  §  259; 
Gibson  v.  Culver,  17  Wend.  305 ;  Fisk  v.  Newton,  1  Den.  45.  But 
when  goods  are  safely  conveyed  to  the  place  of  destination,  and 
the  consignee  cannot,  after  reasonable  effort,  be  found,  the  carrier 
may  discharge  himself  from  further  responsibility  by  depositing  the 
property  in  a  suitable  place  for  the  owner.  Fisk  v.  Newton,  supra. 
Carriers  by  vessels,  boats,  and  railways  are  exempt  from  duty  of 
personal  delivery.  Redfield  on  Eailways,  §  127;  Thomas  v.  Boston 
R.  R.  Co.  10  Metcalf,  472.  Such  carriers  discharge  themselves 
from  responsibility,  as  such,  by  transporting  the  goods  to  their 
nearest  business  station  to  the  residence  or  place  of  business  of  the 
consignee,  and  notifying  the  consignee  of  their  readiness  to  deliver 
the  goods  at  such  station,  after  the  lapse  of  a  reasonable  time  for 
him  to  receive  them.  But  this  exemption  does  not  extend  to  express 
companies,  although  availing  themselves  of  carriage  by  rail.  Red- 
field  on  Railways,  §  127.  These  were  established  for  the  purpose  of 
extending  to  the  public  the  advantages  of  personal  delivery  enjoyed 
in  all  cases  of  land  carriage  prior  to  the  introduction  of  transporta- 
tion by  rail. 

It  appeared  in  the  present  case  that  the  defendant  had  its  vehicles 
by  which  they  carried  articles  to  the  consignee  in  the  city  of 
Schenectady,  which  had  arrived  there  by  rail  under  contracts  with 
the  company  for  the  transportation.  This  is  the  usual  course  of 
transacting  business  by  such  companies;  were  it  otherwise,  the 
business  done  by  these  companies  would  be  greatly  diminished,  as 
it  would  be  equally  advantageous  in  many  cases  to  have  the  property 
transported  by  the  railroad  company.  When  the  defendant  received 
the  package  from  the  Adams  Company  at  New  York,  consigned  to 
Martin  Witbeck,   Schenectady,    it  became  liable  as  carrier  for  its 


DELIVERY   BY    CARRIER.  609 

carriage  to  Schenectady  and  its  delivery  to  Witbeck  there,  if  with 
reasonable  diligence  he  could  be  found.  The  performance  of  this 
entire  service  was  contracted  for  by  its  receipt  so  addressed,  and 
had  the  defendant  received  it  from  the  plaintiff  at  New  York  and 
given  him  a  receipt  for  its  transportation,  the  obligation  to  make 
personal  delivery  at  Schenectady  would  have  been  incurred.  The 
only  remaining  question  arises  upon  the  exception  taken  to  the  find- 
ing by  the  referee,  as  a  fact,  that  the  defendant  did  not  make  due 
effort,  nor  use  due  diligence  to  find  said  Martin  Witbeck,  the  con- 
signee of  said  package.  It  is  insisted  by  the  counsel  for  the  ap] 
lant,  that  the  question,  what  is  reasonable  diligence,  is  one  of  law. 
That  may  be  so,  when  there  is  no  conflict  in  the  evidence,  or  con- 
troversy as  to  the  facts  to  be  inferred  therefrom.  But  that  is  not 
this  case,  nor  will  most  cases  of  this  class  be  of  that  description. 
In  most,  if  not  all,  the  question  will  be  mixed,  both  of  fact  and 
law.  In  the  present  case  the  finding  of  the  referee  is  clearly  cor- 
rect. The  diligence,  which  the  law  required  of  the  defendant,  was 
such  as  a  prudent  man  would  have  used  in  an  important  business 
affair  of  his  own.  The  evidence  shows  that  the  defendant  was  so 
inattentive  as  to  mistake  the  surname  of  the  consignee.  Although 
the  package  was  addressed  to  Witbeck,  all  its  inquiries  were  made 
for  Whitbeck.  This  may  have  prevented  their  finding  him.  It 
further  appeared  that  its  inquiries  were  confined  to  a  few  persons 
in  the  vicinity  of  its  place  of  business,  and  that  by  these  it  obtained 
information  of  other  persons  of  a  like  surname,  one  of  whom  was 
the  father  of  the  consignee.  Surely  inquiry  should  have  been  made 
of  these  persons,  and  had  it  been  so  made,  delivery  would  have  been 
made  and  the  loss  would  never  have  occurred.  There  is  nothing  in 
the  point  that  the  negligence  of  the  plaintiff  in  not  giving  further 
information  as  to  the  residence  of  the  consignee  contributed  to  the 
loss.  The  defendant  accepted  the  package,  addressed  as  it  was,  and 
failed  in  the  performance  of  the  duty  imposed  thereby.  For  such 
failure  it  is  responsible,  irrespective  of  the  right  of  the  plaintiff  to 
give  additional  information.  I  have  examined  the  various  excep- 
tions taken  by  the  appellant  to  the  rulings  of  the  referee  as  to  the 
competency  of  evidence.  The  question  whether  the  consignee  was 
well  known  in  Schenectady  was  proper.  The  plaintiff  had  the 
right  to  prove  this  fact  if  he  could.  But  the  testimony  given  in 
answer  was  not  material.  None  of  the  testimony  excepted  to  could 
have  prejudiced  the  defendant.  The  judgment  appealed  from  must 
be  affirmed. 

All  the  judges  concurring,  judgment  affirmed. 


610  CARRIERS   OF    GOODS. 


HUTCHINSON  v.  UNITED   STATES   EXPRESS   CO. 

63  W.  Va.  128 ;  59  S.  E.  E.  949;  14  L.  R.  A.  N.  S.  393.     1908. 

Poffenbarger,  J.  Ill  an  action  pending  in  the  circuit  court  of 
Braxton  County,  on  appeal  from  a  judgment  of  a  justice's  court,  in 
which  H.  B.  Hutchinson  was  plaintiff  and  the  United  States  Express 
Company  defendant,  for  the  recovery  of  $128.60,  the  value  of  a  pack- 
age of  furs  stolen  from  the  express  company,  a  demurrer  to  the  evi- 
dence was  sustained,  and  judgment  rendered  for  the  defendant,  of 
which  Hutchinson  complains  here. 

Hutchinson,  a  dealer  in  furs  for  a  number  of  years,  residing  in  the 
vicinity  of  Cogar,  a  town  in  Braxton  County,  frequently,  if  not  gener- 
ally, sent  out  through  the  country  one  or  more  buyers  who  bought 
furs  at  such  prices  as  could  be  agreed  upon,  and  turned  them  over  to 
him  at  certain  fixed  prices,  retaining  the  difference  as  compensation 
for  the  service.  These  buyers  graded  the  pelts  according  to  quality 
and  shipped  them  by  express  to  him  at  Cogar,  and,  if  the  packages  so 
shipped  were  small  and  of  little  value,  lie  took  them  from  the  express 
office,  but,  if  they  were  of  considerable  size,  he  regraded  and  repacked 
them  for  the  market  and  consigned  them  to  a  dealer  in  New  York, 
without  removing  them  from  the  express-office  premises.  Deliveries 
were  never  made  to  him  by  the  express  company,  but  it  was  the  prac- 
tice to  notify  him  by  mail  of  the  arrival  of  packages.  The  furs  for 
the  value  of  which  action  was  brought  had  been  collected  by  B.  F. 
Blake,  who  resided  on  Hutchinson's  farm,  and  by  him  delivered  to  the 
express  messenger  on  the  train  at  a  place  called  Carl  siding,  on  Satur- 
day, February  4, 1905,  consigned  to  Hutchinson  at  Cogar.  Blake  took 
passage  on  the  same  train  for  the  same  place,  and,  on  alighting  from 
the  train  at  Cogar,  saw  the  package  of  furs.  This  was  after  4  o'clock 
p.  m.  of  that  day.  No  notice  of  the  arrival  of  the  package  was  given 
to  Hutchinson  by  the  express  company,  and  he  knew  nothing  of  it, 
until  late  Monday  evening,  February  6th,  when  Blake  came  to  his 
house  and  informed  him  of  the  fact.  Had  notice  been  priven  him  by 
mail,  it  would  probably  have  been  received  at  about  the  same  time. 
That  Monday  was  a  bad,  stormy  day,  the  ground  being  covered  with 
a  heavy,  soft,  melting  snow,  and  the  stream  lying  between  Hutchin- 
son's place  and  Cogar  somewhat  swollen.  He  probably  would  not 
have  called  for  the  package  on  that  day,  had  he  been  aware  of  its 
arrival.  On  the  next  day,  he  and  Blake  together  went  to  Cogar,  and 
found  that,  on  the  preceding  night,  the  railway  station  in  which  the 
express  office  was,  and  in  the  freight  room  of  which  the  package  had 
been  left,  had  been  burglarized  and  the  package  stolen.  It  further 
appears  from  the  testimony  of  Hutchinson  himself  that,  had  he  found 


DELIVERY   BY    CARRIER.  611 

the  package  there,  he  would  not  have  taken  it  away,  but  would  have 
regraded  it  and  immediately  shipped  it  to  New  York,  it  being  one  of 
considerable  size  and  value.     Whether,  at  the  time  the  package  was 
taken,  it  was  in  the  hands  of  the  express  company  as  a  common  car- 
rier, or  merely  as  warehouseman,  is  a  question  of  the  gravest  impor- 
tance.    A  common  carrier  is  exempted  from  liability  for  loss  of  goods 
intrusted  to  it  for  carriage,  in  only  a  few  instances,  and,  subject  to 
these  exceptions,  it  is  an  insurer  of  them  to  the  extent  of  their  value. 
Ordinarily,  it  can  be  relieved  only  on  the  ground  of  loss  or  damage  by 
act   of   God,   vis   major,   or   inevitable    accident.     These   are   things 
against  which  prudence  and  care  cannot  avail,  and,  for  that  reason, 
the  law  exonerates  common  carriers  from  liability  for  loss  attributable 
to  them.     Moore,  Carr.  pp.  219,  224,  inclusive;   Hutchinson,  Carr. 
§  265 ;   6  Cyc.  Law  &  Proc.  pp.  376,  377 ;   5  Am.  &  Eng.  Enc.  Law, 
p.  233.     The  exceptions  are  classified  by  Hutchinson  as  follows :   (1) 
Those  arising  from  what  is  known  as  the  act  of  God ;  (2)  those  caused 
by  the  public  enemy  ;  (3)  those  arising  from  the  act  of  the  public  au- 
thority ;  (4)  those  arising  from  the  act  of  the  shipper ;  and  (5)  those 
arising  from  the  inherent  nature  of  the  goods.     Loss  by  theft  or  rob- 
bery is  not  within  any  of  these  exceptions.     "  The  common-law  lia- 
bility of  a  common  carrier,  as  an  insurer  of  goods  carried,  did  not 
extend  to  losses  caused  by  the  acts  of  public  enemies ;  and  the  term 
'  enemies '  was  understood  to  mean  the  public  enemies  of  the  country 
of  the  carrier,  and  not  of  the  owner  of  the  goods,  and  did  not  include 
thieves,  robbers,  or  those  engaged  in  mobs,  riots,  or  insurrections." 
Moore,  Carr.  225 ;  Hutchinson,  Carr.  §  316.     A  much  lighter  degree 
of  responsibility  rests  upon  the  carrier,  after  the  function  of  carriage 
is  deemed  by  the  law  to  have  been  completed  and  its  relation  to  the 
property  and  the  owner  thereof  has  assumed  the  character  of  that  of 
mere  custodian.     After  the  goods  have  reached  their  destination  and 
the  lapse  of  a  reasonable  time,  within  which  the  owner  is  expected  to 
remove  them,  the  carrier's  liability  respecting  them  is  measured  by  the 
legal  principles  applicable  to  warehousemen.     Under  these  principles, 
a  loss  not  due  to  the  negligence  of  the  custodian  or  his  failure  to  exer- 
cise such  care  and  diligence  for  their  safety  as  an  ordinarily  prudent 
person  would  bestow  upon  his  own  property  is  excusable.     He  is  not 
an  insurer,  and  not  liable  for  loss  by  robbery  or  theft  if  he  has  not  con- 
tributed to  it  by  negligence.     Berry  v.  West  Virginia  &  P.  R.  Co.  I  I 
W.  Va.  538,  67  Am.  St.  Rep.  781,  30  S.  E.  143 ;  Hutchinson,  Carr. 
§  685 ;  Moore,  Carr.  181.     These  are  general  principles  more  directly 
applicable  to  such  carriers  as  railway  companies  and  steamship  hues, 
which,  ordinarily,  do  not  make  deliveries  to  the  consignees,  but,  on 
the  arrival  of  the  goods  at  the  points  of  destination,  store  them 
warehouses  until  called  for.     But  the  law  of  warehousemen  sometimes 
governs  the  duty,  rights,  and  liabilities  of  express  companies.     These 
are  common  carriers,  like  railroads,  steamships,  and  other  instramen 
talities  for  the  transportation  of  goods  generally ;  and,  as  such,  they 


612  CARRIERS   OF    GOODS. 

are  insurers  so  long  as  the  goods  remain  in  their  hands  as  carriers. 
12  Am.  &  Eng.  Enc.  Law,  p.  546;  Hutchinson,  Carr.  §  80.  Good 
reason  for  rigidly  applying  to  express  companies  the  law  of  common 
carriers  is  their  profession  and  representation  of  superiority  over  other 
carriers  in  respect  to  facilities,  whereby  they  obtain  both  preference 
and  higher  compensation.  They  claim  to  have  specialized  and  limited 
their  business,  and  so  enabled  themselves  to  bestow  upon  property 
intrusted  to  them  a  degree  of  care  that  a  general  carrier  cannot  give, 
and  to  have  employed  agents  and  instrumentalities  of  peculiar  and 
superior  fitness  for  handling  certain  classes  of  commercial  articles  in 
transportation,  so  that,  on  the  whole,  they  excel  in  respect  to  safety 
and  economy  in  time. 

By  the  general  rule  of  law,  express  companies  are  required  to 
deliver  the  goods  to  the  consignee  in  person,  or  his  authorized  agent, 
at  his  residence  or  place  of  business.  The  duty  of  carriage  is  not 
terminated  on  their  arrival  at  the  point  of  destination,  that  is,  at  the 
station  or  agency  to  which  they  are  directed.  The  duty  of  carriage 
and  the  liability  as  carrier  continue  beyond  this  point  to  the  residence 
or  place  of  business  of  the  consignee.  12  Am.  &  Eng.  Enc.  Law,, 
p.  550;  6  Cyc.  Law  &  Proc.  p.  454;  Hutchinson,  Carr.  §  716.  In 
this  respect,  express  companies  differ  from  other  public  carriers. 
But  this  rule  is  subject  to  some  qualifications.  If  a  diligent  and 
honest  effort  to  find  the  consignee  or  any  person  authorized  to  receive 
the  goods  has  proved  unavailing,  failure  to  make  actual  delivery  is 
excused,  and  the  company  may  then  deposit  the  goods  in  a  reasonably 
safe  warehouse.  From  the  time  of  such  deposit,  its  liability  as  carrier 
ceases,  and  it  holds  the  property  in  the  capacity  of  warehouseman. 
12  Am.  &  Eng.  Enc.  Law,  p.  551 ;  6  Cyc.  Law  &  Proc.  p.  454 ;  Van 
Zile,  Bailments  &  Carriers,  §  567 ;  Hasse  v.  American  Exp.  Co.  94 
Mich.  133,  34  Am.  St.  Rep.  328,  53  N.  W.  918.  Of  course,  the  com- 
mencement and  termination  of  liability  as  carrier  may  be  limited  and 
controlled  to  some  extent  by  special  contract.  How  far  this  may  be 
done,  it  is  unnecessary  here  to  inquire.  The  general  rule  of  law  is 
also  relaxed,  varied,  or  set  aside  by  usage  or  custom  established  by  the 
company,  and  recognized  and  acquiesced  in  by  the  public.  The 
maintenance  of  delivery  messengers  and  vehicles  involves  an  expense 
wholly  out  of  proportion  to  the  business  transacted  at  small  way 
stations,  and,  at  such  places,  a  custom  or  usage  generally  obtains 
under  which  deliveries  are  not  made  elsewhere  than  at  the  express 
company's  office.  The  consignee  is  expected  to  call  at  the  office  for 
his  package  after  having  been  notified  of  its  arrival.  Even  in  cities, 
delivery  districts  are  sometimes  established,  beyond  the  limits  of 
which  deliveries  are  not  made.  Hutchinson,  Carr.  §§  717,  718;  12 
Am.  &  Eng.  Enc.  Law,  p.  553.  The  duty  to  give  notice,  usually  by 
mail,  is  founded  upon  the  usage  or  custom,  dispensing  with  the 
general  rule  requiring  delivery  at  the  residence  or  place  of  business  of 
the  consignee.     Bearing  this  in  mind,  the  conclusion  that  the  express 


DELIVERY    BY    CARRIER.  Q\% 

company  is  bound  to  give  notice  of  the  arrival  of  the  goods  is  not 
inconsistent  with  the  holding  in  Berry  v.  West  Virginia  &  P.  R.  Co. 
supra,  declaring  that  a  railroad  company  is  not  required  to  give 
notice  to  the  consignee  of  such  arrival.  The  rules  of  law  prescribing 
the  duties  of  railroad  companies  and  express  companies  differ  in  this 
respect,  and  the  difference  is  founded  upon  the  additional  burden 
placed  by  the  law  upon  express  companies  to  carry  the  goods  from 
the  office  to  which  they  are  consigned  to  the  residence  or  place  of 
business  of  the  consignee.  But  for  the  usage  to  the  contrary,  the 
liability  as  carrier  would  not  end  until  after  such  delivery  or  an 
unsuccessful  effort  to  effect  it.  The  general  rule  is  only  partially  set 
aside  by  the  usage.  Instead  of  making  such  actual  delivery,  the 
company  gives  a  notice  of  the  arrival,  and  so  substitutes  for  actual 
delivery  a  sort  of  constructive  delivery.  It  necessarily  follows  that 
a  reasonable  time  must  be  allowed  for  removal  of  the  goods  after 
notice  has  been  given.  Hutchinson,  Carr.  §  716;  Southern  Exp.  Co. 
v.  Holland,  109  Ala.  362,  19  So.  66;  Laporte  v.  Wells,  F.  &  Co.'s 
Express,  23  App.  Div.  267,  48  N.  Y.  Supp.  292.  The  notice  must 
be  given  promptly  on  the  arrival  of  the  goods.  Baldwin  v.  Ameri- 
can Exp.  Co.  23  111.  197,  74  Am.  Dec.  190  [602]  ;  American  Mer- 
chants' Union  Exp.  Co.  v.  Schier,  55  111.  140. 

But  the  heavy  burden  of  insurance,  incident  to  the  contract  of 
carriage,  is  not  extended  farther  than  is  necessary  to  enforce  good 
faith  on  the  part  of  the  carrier,  and  secure  reasonable  safety  of  trans- 
portation. While  in  transit,  property  is  wholly  in  the  hands  of  the 
carrier  and  beyond  the  personal  control  of  the  owner,  who  can  neither 
know  to  what  perils  the  carrier  subjects  it,  nor  take  any  measures  for 
its  safety,  and  the  opportunities  of  the  carriage  contract  for  imposi- 
tion by  fraud  and  collusion  are  very  great.  These  and  other  con- 
siderations form  the  basis  of  the  insurance  feature  of  the  contract 
and,  when  these  reasons  for  its  continuation  have  ceased  by  the  com- 
pletion of  the  contract  of  carriage,  the  liability  as  insurer  terminates. 
From  its  exceptional  and  arbitrary  character,  it  necessarily  follows 
that  the  party  in  whose  favor  it  is  imposed  must  be  diligent  in  the 
performance  of  every  duty  imposed  upon  him  by  law  or  the  special 
contract.  The  insurance  is  not  primary  or  special  in  character,  but 
merely  incidental  to  the  main  duty  of  carriage.  It  begins  and  ends 
with  the  duty  of  carriage,  and  the  incidental  time  necessary  to  receiv- 
ing the  goods  for  shipment  and  delivering  them  after  shipment.  It 
has  no  independent  life  or  being.  The  owner  of  the  goods  cannot 
consult  his  mere  convenience  in  respect  to  time  of  removal  after 
notice.  He  must  remove  promptly,  though  the  weather  be  inclement 
and  the  roads  difficult  for  travel.  "  A  consignee  must  promptly  and 
diligently  remove  the  goods  in  a  reasonable  time  after  arrival,  without 
regard  to  distance  from  the  depot,  or  the  means  of  removal  or  conven- 
ience of  the  consignee,  else  the  carrier  will  cease  to  be  further  liable 
as  carrier."     Berry  v.  West  Virginia  &  P.  R.  Co.  cited.     While  this 


614  CARRIERS   OF    GOODS. 

is  railroad  law,  it  clearly  applies  to  an  express  company  after  it  has 
fully  performed  its  duty.  In  Blumenthal  v.  Brainerd,  38  Vt.  402,  91 
Am.  Dec.  350,  the  plaintiff  having  called  for  his  package,  and  found 
it  ready,  left  it,  intending  to  call  for  it  the  next  morning.  In  the 
night  it  was  stolen.  The  court  held  the  carrier  not  liable,  since  the 
box  was  in  its  care  as  warehouseman  only.  In  Lemke  v.  Chicago, 
M.  &  St.  P.  R.  Co.  39  Wis.  449,  goods  arrived  at  their  destination 
on  Saturday  evening,  and  were  destroyed  by  an  accidental  fire  on  the 
Tuesday  following,  at  about  noon ;  and  the  court  held  that  the  owner 
had  had  a  reasonable  time  in  which  to  remove  them.  It  was  further 
held  that  consignee's  absence  from  the  town  during  most  of  the  time 
elapsing  between  the  arrival  and  loss  of  the  goods  was  immaterial. 
In  Chalk  v.  Charlotte,  C.  &  A.  E.  Co.  85  N.  C.  423,  the  goods  were 
left  on  the  platform  of  the  depot  for  the  convenience  of  the  con- 
signees, and  remained  there  for  nearly  two  days.  The  consignees 
had  notice  of  the  arrival,  and  had  paid  the  freight  charges,  and  with 
knowledge  of  the  place  of  deposit,  but  failed  to  remove  the  goods  on 
account  of  inability  to  secure  a  drayman  for  the  purpose.  On  the 
afternoon  of  the  second  day,  the  goods  were  destroyed  by  an  acci- 
dental fire,  and  the  court  adjudged  the  railroad  company  not  liable. 
A  consignee  having  had  notice  of  the  arrival  of  goods  on  Saturday 
afternoon,  and  neglected  to  call  for  them  until  the  following  Wednes- 
day, has  had  more  than  a  reasonable  time,  and  can  hold  the  carrier 
liable  as  warehouseman  only.  Wynantskill  Knitting  Co.  v.  Murray, 
90  Hun,  554,  36  N.  Y.  Supp.  26.  Three  full  days  to  remove  after 
notice  of  arrival  is  a  reasonable  time,  and  the  carrier  cannot  be  held 
as  an  insurer  after  the  lapse  of  such  a  period.  Tarbell  v.  Royal  Exch. 
Shipping  Co.  110  N.  Y.  170,  6  Am.  St.  Rep.  350,  17  N.  E.  721. 

As  no  notice  of  the  arrival  of  the  package  was  given  in  this  instance, 
it  is  insisted,  in  the  argument  for  plaintiff  in  error,  in  view  of  the 
principles  stated,  that  liability  as  carrier  had  not  ceased,  and  the 
demurrer  should  have  been  overruled.  But  there  is  another  principle 
which  must  not  be  overlooked.  The  omission  of  duty,  relied  upon  as 
fixing  upon  the  carrier  liability  for  the  loss,  must  have  been  the  prox- 
imate cause  thereof.  In  Berry  v.  West  Virginia  &  P.  R.  Co.  this 
principle  was  applied  against  the  carrier  so  as  to  hold  it  for  the  loss. 
The  consignee,  having  called  upon  the  agent  for  the  goods,  was 
told,  contrary  to  the  fact,  that  they  had  not  arrived.  But  for  this 
false  statement,  they  would  have  been  removed  and  saved  from  loss 
by  fire.  The  false  statement  by  the  agent  continued  or  extended  the 
liability  of  the  railroad  company  as  carrier  and  insurer  of  the  property. 
Had  he  truthfully  informed  the  consignee  that  they  had  arrived,  and 
they  had  then  been  left  in  the  warehouse  of  the  defendant,  liability 
as  a  carrier  would  have  ceased,  and  the  loss  would  have  fallen  upon 
the  consignee.  Application  of  the  same  principle  here  would  exon- 
erate the  express  company ;  for,  though  no  notice  was  given,  the 
result  would  have  been  the  same,  if  it  had  been.     The  plaintiff  him- 


DELIVERY    BY    CARRIER.  615 

self  testifies  that,  if  a  postal  card  addressed  to  him,  notifying  him  of 
the  arrival  of  the  package,  had  been  placed  in  the  postoffice,  he  would 
not  have  received  it  earlier  than  Monday  evening,  the  time  at  which 
he  had  actual  notice  from  another  source.  Hence,  he  would  not  have 
called  for  the  package  until  the  next  day.  To  excuse  the  carrier 
from  liability  on  the  ground  that  the  cause  of  the  loss  was  the  act  of 
God,  or  the  like,  it  must  appear  that  such  act  was  the  proximate,  not 
the  remote,  cause  of  the  loss.  6  Cyc.  Law  &  Proc.  p.  382.  Con- 
versely, if  the  proximate  cause  is  an  act  of  God,  the  carrier  is  relieved, 
although,  preceding  the  loss,  he  had  been  negligent,  and,  but  for  that 
negligence,  the  goods  would  not  have  been  exposed  to  the  peril  result- 
ing in  their  destruction.  Ibid.  This  is  probably  subject  to  the 
qualification  that  the  negligence  must  not  have  contributed  to  the 
loss.  The  rule  is  also  applicable  where  the  loss  is  due  to  a  cause 
from  which  the  carrier  has  exempted  itself  by  a  valid  contract. 
Richmond  &  D.  R.  Co.  v.  Benson,  96  Ga.  203,  22  Am.  St.  Rep.  1 16, 
12  S.  E.  357 ;  Missouri,  K.  &  T.  R.  Co.  v.  McFadden  Bros.  89  Tex. 
138,  33  S.  W.  853.  The  package  in  question  here  remained  in  the 
care  of  the  express  company  at  Cogar  from  Saturday  afternoon,  about 
4:30  p.m.,  until  Monday  night.  Had  a  notice  of  its  arrival  been  de- 
posited in  the  postoffice  on  Saturday  afternoon,  the  company  would 
then  have  performed  all  it  was  incumbent  upon  it  to  do.  The  con- 
signee might  well  have  been  expected  to  obtain  the  notice  on  that 
evening  or  Monday  morning,  and  then,  on  Monday,  to  have  called  for 
and  received  his  package,  and  either  taken  it  from  the  office  or  re- 
shipped  it;  and,  in  the  latter  case,  it  would,  on  Monday  night,  have 
been  in  transit  for  New  York,  and  thus  escaped  loss.  Though  no 
such  notice  was  placed  in  the  postoffice,  this  fact  neither  occasioned 
nor  contributed  to  the  failure  of  the  consignee  to  call  for  his  package 
on  Monday.  By  his  own  testimony,  it  appears  that  he  would  not 
have  received  the  notice;  for,  owing  to  the  inclemency  of  the  weather 
and  the  bad  condition  of  the  road,  lie  did  not  go  to  the  postoffice  on 
Monday.  Failure  to  send  the  notice  did  not,  therefore,  prejudice  or 
injure  him  in  any  sense  or  degree,  and  was  not  the  cause  of  his  loss. 
To  hold  the  express  company  liable  would  virtually  amount  to  an  in- 
fliction of  punishment  for  an  omission  of  duty  which  in  no  way  in- 
jured the  plaintiff.  We  feel  bound,  therefore,  in  obedience  to  the 
general  rule  of  law  which  precludes  relief  against  wrongs  or  failures 
of  duty,  not  prejudicial  or  productive  of  injury,  —  mere  technical 
wrongs,  —  to  say  that  recovery  could  not  be  sustained  on  the  mere 
failure  to  give  notice  of  the  arrival  of  the  package.  To  this  it  may 
be  replied  that,  if  the  consignee  had  gone  to  the  postoffice  for  his  mail 
on  Saturday  evening  or  Monday,  his  mission  would  have  been  fruit- 
less, as  regards  notice  of  the  arrival  of  his  package  ;  but,  had  he  done 
this,  his  position  would  have  been  different  from  what  it  is.  Ib- 
could  then  have  said  that  the  omission  of  duty  on  the  part  of  thi 
press  company  had  wrought  injury  to  him Affirmed. 


616  CARRIERS    OF    GOODS. 


NORWAY  PLAINS   CO.    v.    BOSTON   AND   MAINE   R.  E. 

1  Gray  (Mass.)  263.     1854. 

Actiok  of   contract  upon   the    agreement   of   the    defendants   to 
transport  certain  goods  from  Rochester,  N.  H.,  to  Boston. 

Shaw,  C.  J.     The  liability  of  carriers  of  goods  by  railroads,  the 
grounds  and  precise  extent  and  limits  of  their  responsibility,  are 
coining  to  be  subjects  of  great  interest  and  importance  to  the  com- 
munity.    It  is  a  new  mode  of  transportation,  in  some  respects  like 
the  transportation  by  ships,  lighters,  and  canal-boats  on  water,  and 
in  others  like  that  by  wagons  on  land;  but  in  some  respects  it  differs 
from  both.     Though   the  practice   is  new,  the  law,  by  which  the 
rights  and  obligations  of  owners,    consignees,    and  of  the  carriers 
themselves  are  to  be  governed,  is  old  and  well  established.     It  is 
one  of  the  great  merits   and  advantages  of  the  common  law,  that, 
instead  of  a  series  of  detailed  practical  rules,  established  by  positive 
provisions,  and  adapted  to  the  precise  circumstances  of  particular 
cases,  which  would  become  obsolete  and  fail  when  the  practice  and 
course  of  business,  to  which  they  apply,  should  cease  or  change,  the 
common  law  consists  of  a  few  broad  and  comprehensive  principles, 
founded  on  reason,  natural  justice,  and  enlightened  public  policy, 
modified  and  adapted  to  the  circumstances  of  all  the  particular  cases 
which  fall  within  it.     These  general  principles  of  equity  and  policy 
are  rendered  precise, specific,  and  adapted  to  practical  use,  by  usage, 
which  is  the  proof  of  their  general  fitness  and  common  convenience, 
but  still  more  by  judicial  exposition;  so  that  when,  in  a  course  of 
judicial  proceeding,  by  tribunals  of  the  highest  authority,  the  general 
rule  has  been  modified,  limited,  and  applied,  according  to  particular 
cases,  such  judicial  exposition,  when  well  settled  and  acquiesced  in, 
becomes  itself  a  precedent,  and  forms  a  rule  of  law  for  future  cases, 
under  like  circumstances.     The  effect  of  this  expansive  and  compre- 
hensive character  of  the  common  law  is,  that  whilst  it  has  its  foun- 
dations in  the  principles  of  equity,  natural  justice,  and  that  general 
convenience  which  is  public  policy;  although  these  general  consider- 
ations would  be  too  vague  and  uncertain  for  practical  purposes,  in 
the  various  and  complicated  cases,  of  daily  occurrence,  in  the  busi- 
ness of  an  active  community,  —  yet  the  rules  of  the  common  law,  so 
far  as  cases  have  arisen  and  practices  actually  grown  up,  are  ren- 
dered, in  a  good  degree,  precise  and  certain,  for  practical  purposes, 
by   usage   and   judicial   precedent.      Another   consequence   of   this 
expansive  character  of  the  common  law  is,  that  when  new  practices 
spring  up,  new  combinations  of  facts  arise,  and  cases  are  presented 
for  which  there  is  no  precedent  in  judicial  decision,  they  must  be 


DELIVERY    BY    CARRIER.  G17 

governed  by  the  general  principle,  applicable  to  cases  most  nearly 
analogous,  but  modified  and  adapted  to  new  circumstances  by  con- 
siderations of  fitness  and  propriety,  of  reason  and  justice,  which 
grow  out  of  those  circumstances.  The  consequence  of  this  state  of 
the  law  is  that  when  a  new  practice  or  new  course  of  business  ari 
the  rights  and  duties  of  parties  are  not  without  a  law  to  govern 
them;  the  general  considerations  of  reason,  justice,  and  policy,  which 
underlie  the  particular  rules  of  the  common  law,  will  still  apply, 
modified  and  adapted,  by  the  same  considerations,  to  the  new  cir- 
cumstances. If  these  are  such  as  give  rise  to  controversy  and  liti- 
gation, they  soon,  like  previous  cases,  come  to  be  settled  by  judicial 
exposition,  and  the  principles  thus  settled  soon  come  to  have  the 
effect  of  precise  and  practical  rules.  Therefore,  although  steam- 
boats and  railroads  are  but  of  yesterday,  yet  the  principles  which 
govern  the  rights  and  duties  of  carriers  of  passengers,  and  also  those 
which  regulate  the  rights  and  duties  of  carriers  of  goods,  and  of  the 
owners  of  goods  carried,  have  a  deep  and  established  foundation  in 
the  common  law,  subject  only  to  such  modifications  as  new  circum- 
stances may  render  necessary  and  mutually  beneficial. 

The  present  is  an  action  brought  to  recover  the  value  of  two  par- 
cels of  merchandise,  forwarded  by  the  plaintiffs  to  Boston,  in  the 
cars  of  the  defendants.  These  goods  were  described  in  two  receipts 
of  the  defendants,  dated  at  Rochester,  N.  H.,  the  one  October  31st, 
1850,  and  the  other  November  2d,  1850. 

By  the  facts  agreed  it  appears  that  the  goods  specified  in  the  first 
receipt  were  delivered  at  Rochester,  and  received  into  the  cars,  and 
arrived  in  Boston  seasonably  on  Saturday,  the  2d  of  November,  and 
were  then  taken  from  the  cars,  and  placed  in  the  depot  or  warehouse 
of  the  defendants ;  that  no  special  notice  of  their  arrival  was  given 
to  the  plaintiffs  or  their  agent;  but  that  the  fact  was  known  to 
Ames,  a  truckman,  who  was  their  authorized  agent,  employed  to 
receive  and  remove  the  goods,  that  they  were  ready  for  delivery,  at 
least  as  early  as  Monday  morning,  the  4th  of  November,  and  that 
he  might  then  have  received  them. 

The  goods  specified  in  the  other  receipt  were  forwarded  to  Boston 
on  Monday,  the  4th  of  November;  the  cars  arrived  late;  Ames,  the 
truckman,  knew  from  inspection  of  the  waybill  that  the  goods  were 
on  the  train,  and  waited  for  them  some  time,  but  could  not  con- 
veniently receive  them  that  afternoon,  in  season  to  deliver  them  at 
the  places  to  which  they  were  directed,  and  for  that  reason  did  nut 
take  them;  in  the  course  of  the  afternoon  they  were  taken  from  the 
cars  and  placed  on  the  platform  within  the  depot;  at  the  usual  time 
at  that  season  of  the  year,  the  doors  were  closed.  In  the  course  of 
the  night  the  depot  accidentally  took  fire  and  was  burnt  down,  and 
the  goods  were  destroyed.  The  fire  was  not  caused  by  lightning; 
nor  was  it  attributable  to  any  default,  negligence,  or  want  of  due  care 
on  the  part  of  the  railroad  corporation,  or  their  agents  or  servants. 


618  CARRIERS    OF    GOODS. 

We  understand  the  merchandise  depot  to  be  a  warehouse,  suitably 
enclosed  and  secured  against  the  weather,  thieves,  and  other  like 
ordinary  dangers,  with  suitable  persons  to  attend  it,  with  doors  to 
be  closed  and  locked  during  the  night,  like  other  warehouses,  used 
for  the  storage  of  merchandise;  that  it  is  furnished  with  tracks,  on 
which  the  loaded  cars  run  directly  into  the  depot  to  be  unloaded ; 
that  there  are  platforms  on  the  sides  of  the  track,  on  which  the  goods 
are  first  placed;  that  if  not  immediately  called  for  and  taken  by  the 
consignees,  they  are  separated  according  to  their  marks  and  direc- 
tions, and  placed  by  themselves  in  suitable  situations  within  the 
depot,  there  to  remain  a  reasonable  and  convenient  time,  without 
additional  charge,  until  called  for  by  parties  entitled  to  receive 
them. 

The  question  is  whether,  under  these  circumstances,  the  defendants 
are  liable. 

That  railroad  companies  are  authorized  by  law  to  make  roads  as 
public  highways,  to  lay  down  tracks,  place  cars  upon  them,  and  carry 
goods  for  hire,  are  circumstances  which  bring  them  within  all  the 
rules  of  the  common  law,  and  make  them  eminently  common  car- 
riers. Their  iron  roads,  though  built,  in  the  first  instance,  by  indi- 
vidual capital,  are  yet  regarded  as  public  roads,  required  by  common 
convenience  and  necessity,  and  their  allowance  by  public  authority 
can  be  only  justified  on  that  ground.  The  general  principle  has 
been  uniformly  so  decided  in  Eugland  and  in  this  country;  and  the 
point  is,  to  ascertain  the  precise  limits  of  their  liability.  This  was 
done  to  a  certain  extent  in  this  court,  in  a  recent  case,  with  which, 
as  far  as  it  goes,  we  are  entirely  satisfied.  Thomas  v.  Boston  & 
Providence  Railroad,  10  Met.  472. 

Being  liable  as  common  carriers,  the  rule  of  the  common  law 
attaches  to  them,  that  they  are  liable  for  losses  occurring  from  any 
accident  which  may  befall  the  goods,  during  the  transit,  except 
those  arising  from  the  act  of  God  or  a  public  enemy.  It  is  not 
necessary  now  to  inquire  into  the  weight  of  those  considerations  of 
reason  and  policy,  on  which  the  rule  is  founded,  nor  to  consider 
what  casualty  may  be  held  to  result  from  an  act  of  God,  or  a  public 
enemy;  because  the  present  case  does  not  turn  on  any  such  distinc- 
tion. It  is  sufficient,  therefore,  to  state  and  affirm  the  general  rule. 
In  the  present  case,  the  loss  resulted  from  a  fire,  of  which  there  is 
no  ground  to  suggest  that  it  was  an  act  of  God;  and  it  is  equally 
clear  that  it  did  not  result  from  any  default  or  negligence  on  the 
part  of  the  company,  though  the  goods  remained  in  their  custody. 
If,  at  the  time  of  the  loss,  they  were  liable  as  common  carriers, 
they  must  abide  by  the  loss;  because,  as  common  carriers,  they 
were  bound  as  insurers  to  take  the  risk  of  fire,  not  caused  by  the  act 
of  God,  and  in  such  case  no  question  of  default  or  negligence  can 
arise.  Proof  that  it  was  from  a  cause  for  which  they,  neither  by 
themselves  nor  their  servants,  were  in  any  degree  chargeable,  could 


DELIVERY    BY    CARRIES.  G19 

amount  to  no  defence,  and  would  therefore  be  inadmissible  in  evi- 
dence. If,  on  the  contrary,  the  transit  was  at  an  end,  if  the  d 
ants  had  ceased  to  have  possession  of  the  goods  as  common  carriers, 
and  held  them  in  another  capacity,  as  warehousemen,  then  th< 
were  responsible  only  for  the  care  and  diligence  which  the  law 
attaches  to  that  relation;  and  this  does  not  extend  to  a  loss  by  acci- 
dental fire,  not  caused  by  the  default  or  negligence  of  themselves, 
or  of  servants,  agents,  or  others,  for  whom  they  arc  responsible. 

The  question  then  is,  when  and  by  what  act  the  transit  of  the 
goods  terminated.  It  was  contended,  in  the  present  case,  that,  in 
the  absence  of  express  proof  of  contract  or  usage  to  the  contrary, 
the  carrier  of  goods  by  land  is  bound  to  deliver  them  to  the  con- 
signee, and  that  his  obligation  as  carrier  does  not  cease  till  such 
delivery. 

This  rule  applies,  and  may  very  properly  apply,  to  the  case  of 
goods  transported  by  wagon  and  other  vehicles,  traversiug  the  com- 
mon highways  and  streets,  and  which  therefore  can  deliver  the 
goods  at  the  houses  of  the  respective  consignees.  But  it  cannot 
apply  to  railroads,  whose  line  of  movement  and  point  of  termination 
are  locally  fixed.  The  nature  of  the  transportation,  though  on  land, 
is  much  more  like  that  by  sea,  in  this  respect,  that  from  the  very 
nature  of  the  case,  the  merchandise  can  only  be  transported  along 
one  line,  and  delivered  at  its  termination,  or  at  some  fixed  place  lu- 
ffs side,  at  some  intermediate  point.  The  rule  in  regard  to  ships 
is  very  exactly  stated  in  the  opinion  of  Buller,  J.,  in  Hyde  /•.  Trent 
&  Mersey  Navigation,  5  T.  R.  397  [596].  "  A  ship  trading  from  one 
port  to  another  has  not  the  means  of  carrying  the  goods  on  land ;  and, 
according  to  the  established  course  of  trade,  a  delivery  on  the  usual 
wharf  is  such  a  delivery  as  will  discharge  the  carrier." 

Another  peculiarity  of  transportation  by  railroad  is  that  the  car 
cannot  leave  the  track,  or  line  of  rails,  on  which  it  moves;  a  freight 
train  moves  with  rapidity,  and  makes  very  frequent  journeys,  and 
a  loaded  car,  whilst  it  stands  on  the  track,  necessarily  prevents 
other  trains  from  passing  or  coming  to  the  same  place;  of  course, 
it  is  essential  to  the  accommodation  and  convenience  of  all  persons 
interested,  that  a  loaded  car,  on  its  arrival  at  its  destination,  should 
be  unloaded,  and  that  all  the  goods  carried  on  it,  to  whomsoever 
they  may  belong,  or  whatever  may  be  their  destination,  should  be 
discharged  as  soon  and  as  rapidly  as  it  can  be  done  with  safety. 
The  car  may  then  pass  on  to  give  place  to  others,  to  be  discharged 
im  like  manner.  From  this  necessary  condition  of  the  business,  and 
from  the  practice  of  these  transportation  companies  to  have  plat- 
forms on  which  to  place  goods  from  the  cars,  in  the  first  instance, 
and  warehouse  accommodation  by  which  they  may  be  securely  stored, 
the  goods  of  each  consignment  by  themselves,  in  access i hie  placi 
ready  to  be  delivered,  the  court  are  of  opinion  that  the  duty  assumed 
by  the  railroad  corporation  is  — and  this,  being  known  to  owners  of 


620  CARRIERS    OF    GOODS. 

goods  forwarded,  must,  in  the  absence  of  proof  to  the  contrary,  b& 
presumed  to  be  assented  to  by  them,  so  as  to  constitute  the  implied 
contract  between  them  —  that  they  will  carrj'  the  goods  safely  to 
the  place  of  destination,  and  there  discharge  them  on  the  platform, 
and  then  and  there  deliver  them  to  the  consignee  or  party  entitled 
to  receive  them,  if  he  is  there  ready  to  take  them  forthwith;  or  if 
the  consignee  is  not  there  ready  to  take  them,  then  to  place  them 
securely  and  keep  them  safely  a  reasonable  time,  ready  to  be 
delivered  when  called  for.  This,  it  appears  to  us,  is  the  spirit  and 
legal  effect  of  the  public  duty  of  the  carriers,  and  of  the  contract 
between  the  parties  when  not  altered  or  modified  by  special  agree- 
ment, the  effect  and  operation  of  which  need  not  here  be  considered. 

This  we  consider  to  be  one  entire  contract  for  hire;  and  although 
there  is  no  separate  charge  for  storage,  yet  the  freight  to  be  paid, 
fixed  by  the  company  as  a  compensation  for  the  whole  service,  is 
paid  as  well  for  the  temporary  storage  as  for  the  carriage.  This 
renders  both  the  services,  as  well  the  absolute  undertaking  for  the 
carriage,  as  the  contingent  undertaking  for  the  storage,  to  be  ser- 
vices undertaken  to  be  done  for  hire  and  reward.  From  this  view  of 
the  duty  and  implied  contract  of  the  carriers  by  railroad,  we  think 
there  result  two  distinct  liabilities :  first,  that  of  common  carriers, 
and  afterwards  that  of  keepers  for  hire,  or  warehouse  keepers ;  the 
obligations  of  each  of  which  are  regulated  by  law. 

We  may  then  say,  in  the  case  of  goods  transported  by  railroad, 
either  that  it  is  not  the  duty  of  the  company  as  common  carriers, 
to  deliver  the  goods  to  the  consignee,  which  is  more  strictly  con- 
formable to  the  truth  of  the  facts;  or,  in  analogy  to  the  old  rule  that 
delivery  is  necessary,  it  may  be  said  that  delivery  by  themselves  as 
common  carriers,  to  themselves  as  keepers  for  hire,  conformably  to 
the  agreement  of  both  parties,  is  a  delivery  which  discharges  their 
responsibility  as  common  carriers.  If  they  are  chargeable  after  the 
goods  have  been  landed  and  stored,  the  liability  is  one  of  a  very 
different  character,  — one  which  binds  them  only  to  stand  to  losses 
occasioned  by  their  fault  or  negligence.  Indeed,  the  same  doctrine 
is  distinctly  laid  down  in  Thomas  v.  Boston  &  Providence  Railroad, 
10  Met.  472,  with  the  same  limitation.  The  point  that  the  same 
company,  under  one  and  the  same  contract,  may  be  subject  to  dis- 
tinct duties,  for  a  failure  in  which  they  may  be  liable  to  different 
degrees  of  responsibility,  will  result  from  a  comparison  of  the  two 
cases  of  Garside  v.  Trent  &  Mersey  Navigation,  4  T.  R.  581,  and 
Hyde  v.  Trent  &  Mersey  Navigation,  5  T.  R.  389  [596].  See  also 
Van  Santvoord  v.  St.  John,  6  Hill,  157,  and  McHenry  v.  Philadel- 
phia, Wilmington  &  Baltimore  Railroad,  4  Harring.  448. 

The  company,  having  received  an  adequate  compensation  for  the 
entire  service,  if  they  store  the  goods,  are  paid  for  that  service; 
they  are  depositaries  for  hire,  and  of  course  responsible  for  the 
security  and  fitness  of  the  place,  and  all  precautions  necessary   to 


DELIVERY   BY   CARRIER.  621 

the  safety  of  the  goods,  and  for  ordinary  care  and  attention  of  theii 
servants  and  agents,  in  keeping  and  delivering  them  when  railed 
for.  This  enforces  the.  liability  of  common  carriers  to  the  extent  to 
which  it  has  been  uniformly  carried  by  the  common  law,  so  far  as 
the  reason  and  principle  of  the  rule  rendered  it  fit  and  applicable, 
that  is,  during  the  transit;  and  affords  a  reasonable  security  to  the 
owner  of  goods  for  their  safety,  until  actually  taken  into  his  own 
custody. 

The  principle,  thus  adopted,  is  not  new;  many  cases  might  be 
cited;  one  or  two  will  be  sufficient.  Where  a  consignee  of  goods, 
sent  by  a  common  carrier  to  London,  had  no  warehouse  of  his  own, 
but  was  accustomed  to  leave  the  goods  in  the  wagon  office,  or  ware- 
house of  the  common  carrier,  it  was  held,  that  the  transit  was  at 
an  end,  when  the  goods  were  received  and  placed  in  the  warehouse. 
Row  v.  Pickford,  8  Taunt.  83.  Though  this  was  a  case  of  stoppage 
in  transitu,  it  decides  the  principle.  But  another  case  in  the  same 
volume  is  more  in  point.  In  re  Webb,  8  Taunt.  443.  Common  car- 
riers agreed  to  carry  wool  from  London  to  Frome,  under  a  stipula- 
tion that  when  the  consignees  had  not  room  in  their  own  store  to 
receive  it,  the  carriers,  without  additional  charge,  would  retain  it 
in  their  own  warehouse,  until  the  consignor  was  ready  to  receive  it. 
Wool  thus  carried,  and  placed  in  the  carriers'  warehouse,  was 
destroyed  by  an  accidental  fire;  it  was  held  that  the  carriers  were 
not  liable.  The  court  say  that  this  was  a  loss  which  would  fall  on 
them,  as  carriers,  if  they  were  acting  in  that  character,  but  would 
not  fall  on  them  as  warehousemen. 

This  view  of  the  law,  applicable  to  railroad  companies,  as  com- 
mon carriers  of  merchandise,  affords  a  plain,  precise,  and  practical 
rule  of  duty,  of  easy  application,  well  adapted  to  the  security  of  all 
persons  interested;  it  determines  that  they  are  responsible  as  com- 
mon carriers  until  the  goods  are  removed  from  the  cars  and  placed 
on  the  platform ;  that  if,  on  account  of  their  arrival  in  the  night,  or 
at  any  other  time,  when,  by  the  usage  and  course  of  business,  the 
doors  of  the  merchandise  depot  or  warehouse  are  closed,  or  for  any 
other  cause,  they  cannot  then  be  delivered;  or  if,  for  any  reason. 
the  consignee  is  not  there  ready  to  receive  them, —  it  is  the  duty  oi 
the  company  to  store  them  and  preserve  them  safely,  under  the 
charge  of  competent  and  careful  servants,  ready  to  be  delivered,  and 
actually  deliver  them  when  duly  called  for  by  parties  authorized 
and  entitled  to  receive  them;  and  for  the  performance  of  these 
duties  after  the  goods  are  delivered  from  the  cars,  the  company  are 
liable,  as  warehousemen,  or  keepers  of  goods  for  hire. 

It  was  argued  in  the  present  case,  that  the  railroad  company  air 
responsible  as  common  carriers  of  goods,  until  they  have  given 
notice  to  consignees  of  the  arrival  of  goods.  The  court  are  strongly 
inclined  to  the  opinion,  that  in  regard  to  the  transportation  of  goods 
by  railroad,  as  the  business  is  generally  conducted  in  this  country. 


622  CARRIERS    OF    GOODS. 

this  rule  does  not  apply.  The  immediate  and  safe  storage  of  the 
goods  on  arrival,  in  warehouses  provided  by  the  railroad  company, 
and  without  additional  expense,  seems  to  be  a  substitute  better 
adapted  to  the  convenience  of  both  parties.  The  arrivals  of  goods, 
at  the  larger  places  to  which  goods  are  thus  sent,  are  so  numerous, 
frequent,  and  various  in  kind,  that  it  would  be  nearly  impossible  to 
send  special  notice  to  each  consignee  of  each  parcel  of  goods  or 
single  article  forwarded  by  the  trains.  We  doubt  whether  this  is 
conformable,  to  usage;  but  perhaps  we  have  not  facts  enough  dis- 
closed in  this  case  to  warrant  an  opinion  on  that  question.  As  far 
as  the  facts  on  this  point  do  appear,  it  would  seem  probable  that 
persons  frequently  forwarding  goods  have  a  general  agent  who  is 
permitted  to  inspect  the  way-bills,  ascertain  what  goods  are  received 
for  his  employers,  and  take  them  as  soon  as  convenient  after  their 
arrival.  It  also  seems  to  be  the  practice  for  persons  forwarding 
goods  to  give  notice  by  letter  and  enclose  the  railroad  receipt,  in  the 
nature  of  a  bill  of  lading,  to  a  consignee  or  agent,  to  warn  him  to 
be  ready  to  receive  them.  From  the  two  specimens  of  the  form  of 
receipt  given  by  these  companies,  produced  in  the  present  case,  we 
should  doubt  whether  the  name  of  any  consignee  or  agent  is  usually 
specified  in  the  receipt  and  on  the  way-bill.  The  course  seems  to 
be  to  specify  the  marks  and  numbers,  so  that  the  goods  may  be 
identified  by  inspection  and  comparison  with  the  way-bill.  If  it  is 
not  usual  to  specify  the  name  of  a  consignee  in  the  way-bill,  as  well 
as  on  the  receipt,  it  would  be  impossible  for  the  corporation  to  give 
notice  of  the  arrival  of  each  article  and  parcel  of  goods.  In  the  two 
receipts  produced  in  this  case,  which  are  printed  forms,  a  blank  is 
left  for  the  name  of  a  consignee,  but  it  is  not  filled,  and  no  con- 
signee in  either  case  is  named.  The  legal  effect  of  such  a  receipt 
and  promise  to  deliver  no  doubt  is  to  deliver  to  the  consignor  or  his 
order.  If  this  is  the  usual  or  frequent  course,  it  is  manifest  that  it 
would  be  impossible  to  give  notice  to  any  consignee;  the  consignor 
is  prima  facie  the  party  to  receive,  and  he  has  all  the  notice  he  can 
have.  But  we  have  thought  it  unnecessary  to  give  a  more  decisive 
opinion  on  this  point,  for  the  reason,  already  apparent,  that  in  these 
receipts  no  consignee  was  named;  and  for  another,  equally  con- 
clusive, that  Ames,  the  plaintiffs'  authorized  agent,  had  actual 
notice  of  the  arrival  of  both  parcels  of  goods. 

In  applying  these  mles  to  the  present  case  it  is  manifest  that  the 
defendants  are  not  liable  for  the  loss  of  the  goods.  Those  which 
were  forwarded  on  Saturday  arrived  in  the  course  of  that  day,  lay 
there  on  Sunday  and  Monday,  and  were  destroyed  in  the  night 
between  Monday  and  Tuesday.  But  the  length  of  time  makes  no 
difference.  The  goods  forwarded  on  Monday  were  unladen  from 
the  cars,  and  placed  in  the  depot,  before  the  fire.  Several  circum- 
stances are  stated  in  the  case,  as  to  the  agent's  calling  for  them, 
waiting,  and  at  last  leaving  the  depot  before  they  were  ready.      But 


DELIVERY    BY    CABRIEB, 

we  consider  them  all  immaterial.  The  argument  strongly  ui 
was,  that  the  responsibility  of  common  carriers  remained  until 
agent  of  the  consignee  had  an  opportunity  to  take  them  and  remove 
them.  But  we  think  the  rule  is  otherwise.  It  is  stated,  as  a  cir- 
cumstance, that  the  train  arrived  that  day  at  a  later  hour  than  usual. 
This  we  think  immaterial;  the  corporation  do  not  stipulate  that  the 
goods  shall  arrive  at  any  particular  time.  Further,  from  the  very 
necessity  of  the  case  and  the  exigencies  of  the  railroad,  the  corpora- 
tion must  often  avail  themselves  of  the  night,  when  the  road  i^ 
occupied,  for  passenger  cars;  so  that  goods  may  arrive  and  he  un- 
laden at  an  unsuitable  hour  of  the  night  to  have  the  depot  open  fur 
the  delivery  of  the  goods.  We  think,  therefore,  that  it  would  be 
alike  contrary  to  the  contract  of  the  parties  and  the  nature  of  the 
carriers'  duty,  to  hold  that  they  shall  be  responsible  as  common 
carriers,  until  the  owner  has  practically  an  opportunity  to  come  with 
his  wagon  and  take  the  goods;  and  it  would  greatly  mar  the  sim- 
plicity and  efficacy  of  the  rule,  that  delivery  from  the  cars  into  the 
depot  terminates  the  transit.  If,  therefore,  for  any  cause,  the  con- 
signee is  not  at  the  place  to  receive  his  goods  from  the  ear  as 
unladen,  and  in  consequence  of  this  they  are  placed  in  the  depot, 
the  transit  ceases.  In  point  of  fact,  the  agent  might  have  received 
the  second  parcel  of  goods  in  the  course  of  the  afternoon  on  Monday, 
but  not  early  enough  to  be  carried  to  the  warehouses  at  which  lie 
was  to  deliver  them;  that  is,  not  early  enough  to  suit  his  conven- 
ience. But,  for  the  reasons  stated,  we  have  thought  this  circum- 
stance immaterial,  and  do  not  place  our  decision  for  the  defendants, 
in  regard  to  this  second  parcel,  on  that  ground. 

Judgment  for  the  defendants. 


LEWIS  v.  LOUISVILLE  &  N.   R.   CO. 
135  Ky.  361 ;  122  S.  W.  R.  181;  25  L.  11.  A.  N.  S.  938.     1909. 

Carroll,  J.  The  questions  presented  by  this  record  are :  When 
does  the  duty  and  liability  of  a  common  carrier  of  goods  as  a  carrier 
cease  upon  the  arrival  of  the  goods  at  the  point  of  destination,  and 
when  does  its  duty  and  liability  as  a  warehouseman  begin  '.' 

It  is  agreed  that  there  was  shipped  to  the  appellant,  Lewis,  over  the 
road  of  the  appellee  company  to  Pineville,  Kentucky,  three  packages 
of  goods  that  were  in  its  warehouse  at  Pineville  on  the  night  of 
September  16th,  when  the  building  and  its  contents,  including  this 
freight,  was  destroyed  by  fire ;  that  the  fire  commenced  at  a  late 
hour  on  the  night  of  the  16th  or  an  early  hour  on  the  morning 
of  the  17th,  and  was  not  caused,  either   directly  or  indirectly,  by 


624  CARKIERS   OF    GOODS. 

the  negligence,  fraud,  or  wrongdoing  of  the  company,  or  any  of  its 
agents,  servants,  or  employees;  that  at  the  time  of  the  fire,  and 
for  some  five  years  prior  thereto,  Lewis  was  engaged  in  selling  goods, 
as  a  merchant,  at  a  point  some  25  miles  distant  by  the  nearest 
traveled  route  from  Pineville;  that  during  this  time  all  of  the 
goods  and  merchandise  that  he  sold  was  delivered  to  him  by  the  com- 
pany at  its  Pineville  station,  and  this  fact  was  known  to  its  agent  at 
Pineville,  who  also  knew  where  Lewis  lived  and  his  postoffice  address ; 
that  two  of  the  packages  of  merchandise  destroyed  reached  Pineville 
on  the  13th  of  September,  and  were  placed  in  the  company's  ware- 
house on  that  day,  and  the  other  package  destroyed  was  placed  in  the 
warehouse  at  noon  on  September  16th ;  that  neither  Lewis  nor  anyone 
for  him  made  inquiry  about  or  called  at  the  warehouse  for  the  goods, 
nor  was  any  notice  of  the  arrival  of  the  goods,  or  any  of  them,  sent  or 
given  by  mail  or  otherwise  to  Lewis,  and  he  did  not,  at  the  time  of  the 
fire,  have  any  knowledge  or  notice  that  the  goods,  or  any  of  them, 
were  in  the  warehouse.  It  is  further  agreed  that,  on  account  of  the 
heavy  traffic  on  the  road,  it  was  impossible  for  Lewis  to  know  with 
reasonable  certainty  when  the  goods,  which  were  shipped  from  distant 
points,  would  reach  Pineville,  and  that  the  goods  in  question  were 
transported  without  unreasonable  delay,  although  it  appears  that  one 
shipment  that  left  Louisville  on  August  28th  did  not  reach  Pineville 
until  September  13th,  while  another  package  that  left  Louisville  on 
September  14th  reached  Pineville  on  September  16th,  and  the  package 
that  was  sent  from  Knoxville,  which  is  only  about  half  the  distance 
from  Pineville  that  Louisville  is,  did  not  arrive  at  Pineville  until 
September  13th,  although  it  was  shipped  on  September  6th.  Upon 
these  facts  the  trial  court  held  as  matter  of  law  that  the  company  was 
not  liable. 

There  is  really  no  contrariety  of  opinion  as  to  the  difference  be- 
tween the  liability  of  a  common  carrier  and  the  liability  of  a  ware- 
houseman ;  it  being  everywhere  agreed  that  a  common  carrier  is  an 
insurer  of  the  freight  delivered  to  it  for  carriage,  and  can  only  escape 
liability  for  loss  or  damage  to  the  goods  by  showing  that  the  loss  or 
damage  was  caused  by  the  act  of  God,  or  the  public  enemy,  or  by  in- 
herent defects  in  the  goods.  It  is  equally  as  well  established  that  a 
warehouseman  is  not  an  insurer  of  goods  placed  in  his  warehouse,  and 
is  only  liable  for  such  loss  or  damage  to  the  goods  as  is  caused  by  his 
negligence  or  failure  to  exercise  ordinary  care.  From  these  rules  it 
will  be  seen  that,  if  the  goods  in  controversy  were  in  the  custody  of 
the  company  as  a  common  carrier  at  the  time  of  their  destruction,  it 
would  nevertheless  be  liable  for  their  value ;  while,  if  they  were  in  its 
custody  as  a  warehouseman,  it  would  not  be  liable,  as  the  loss  was  not 
occasioned  by  its  fault  or  negligence.  Although  the  liability  of  a 
carrier  and  that  of  a  warehouseman  are  well  defined,  and  the  distinc- 
tion between  them  in  this  respect  clearly  pointed  out  in  all  the  authori- 
ties, there  is  wide  and  irreconcilable  conflict  concerning  when  the 


DELIVERY   BY    CARRIER.  625 

liability  of  a  common  carrier  as  a  common  carrier  ceases,  and  its  lia- 
bility as  a  warehouseman  begins.  In  Massachusetts  and  other  states 
the  rule  is  that  when  the  carrier  has  delivered  the  goods  at  the  point 
of  destination,  removed  them  from  its  cars,  and  placed  them  in  its 
warehouse,  its  liability  as  a  carrier  immediately  ceases,  and  thereafter 
it  holds  the  goods  as  a  warehouseman.  In  New  Hampshire  and  other 
jurisdictions  the  rule  is  that  the  carrier  continues  liable  as  a  carrier 
after  the  goods  have  reached  their  destination,  and  have  been  placed 
in  the  warehouse,  and  for  a  reasonable  time  thereafter,  in  which  time 
the  consignee  must  remove  them  or  otherwise  the  carrier  will  hold 
them  as  a  warehouseman.  While  the  supreme  court  of  New  York 
and  other  state  courts  of  last  resort  hold  that,  unless  the  consignee  is 
present  when  the  goods  arrive,  he  must  be  notified  of  their  arrival, 
and  have  a  reasonable  time  after  notice  in  which  to  remove  them  be- 
fore the  liability  of  the  carrier  as  a  carrier  ceases.  Hutchinson,  Carr. 
3d.  ed.  §§  701,  710;  4  Elliott,  Railroads,  2d  ed.  §  1527;  note  to 
Denver  &  R.  G.  R.  Co.  v.  Peterson,  97  Am.  St.  Rep.  76;  East 
Tennessee,  V.  &  G.  R.  Co.  v.  Kelly,  91  Tenn.  699,  17  L.  R.  A.  691, 
30  Am.  St.  Rep.  902,  20  S.  W.  312.  In  this  state  we  have  no  statute 
on  the  subject,  but  the  question  we  are  considering  has  been  before 
this  court  in  three  cases.  In  Louisville,  C.  &  L.  R.  Co.  v.  Mahan,  8 
Bush,  184,  and  Wald  v.  Louisville,  E.  &  St.  L.  R.  Co.  92  Ky.  645,  18 
S.  W.  850,  the  point  involved  was  what  constituted  a  reasonable  time 
in  which  a  passenger  might  remove  from  the  depot  the  baggage  that 
came  on  the  train  with  him.  In  Jeffersonville  R.  Co.  v.  Cleveland, 
2  Bush,  468,  the  question  presented  was  in  many  respects  like  the  one 
now  before  us,  and  the  court,  in  delivering  the  opinion,  followed  what 
may  be  called  the  New  Hampshire  rule.  In  that  case,  suit  was  brought 
to  recover  the  value  of  goods  shipped  by  freight  and  destroyed  by  fire 
on  the  night  of  April  26th,  while  they  were  in  the  warehouse  of  the 
carrier  at  the  place  of  destination.  The  goods,  in  the  ordinary  course 
of  transportation,  should  have  arrived  on  the  20th,  but,  on  account  of 
delays,  they  did  not  arrive  until  the  evening  of  the  25th;  and  the 
owner  inquired  at  the  warehouse  for  them  on  each  day  from  the  20th 
to  and  including  the  morning  of  the  25th.  On  the  morning  of  the 
26th  a  notice  to  the  owner,  of  the  fact  that  his  goods  had  arrived,  was 
deposited  in  the  postoffice,  but  not  received.  In  the  course  of  the 
opinion  the  court  said :  "  Whether  the  responsibility  of  the  company, 
after  the  arrival  and  storage  of  the  goods  in  Detroit,  was  that  devolved 
by  law  on  carriers  or  only  that  of  depositaries,  it  was  not  necessary,  in 
our  opinion,  that  the  company  should  either  give  notice  of  the  arrival 
of  the  goods  or  make  actual  delivery  of  them,  as  is  now  done  by  ex- 
press companies,  in  order  that  the  liability  of  carriers  should  cease 
after  reasonable  time  had  elapsed  for  the  owner  to  attend  and  re- 
remove  the  goods.  .  .  .  [But]  the  liability  of  railroad  corporations  as 
common  carriers  for  goods  transported  on  their  railroads  continues 
until  the  goods  are  ready  to  be  delivered  at  their  place  of  destination, 


g26  CARRIERS   OF   GOODS. 

ami  the  owner  or  consignee  has  had  reasonable  opportunity  of  receiv- 
ing and  removing  them.  .  .  .  What  such  reasonable  time  shonld  be 
must,  in  the  nature  of  the  case,  when  not  provided  for  by  express  con- 
tract, depend  on  the  character  of  the  freight,  the  distance  to  which  it 
is  to  be  carried,  and  the  capacity  and  business  of  the  road,  with  such 
other  circumstances  as  would  serve  to  notify  the  consignee  of  the 
probable  time  when  the  goods  would  reach  their  destination,  so  that, 
with  proper  watchfulness,  he  might  receive  them,  and  thus  terminate  the 
carrier's  responsibility  as  soon  as  practicable."  Upon  the  facts  stated, 
the  court  held  that  the  owner  did  not  have  a  reasonable  time  in  which 
to  remove  the  goods  after  their  arrival,  and  that  the  carrier,  at  the 
time  of  their  destruction,  was  holding  them  as  a  carrier,  and  hence 
liable.  The  liability  was  put  upon  the  ground  that  the  owner  had  ex- 
ercised reasonable  diligence  to  ascertain  when  the  goods  would  arrive, 
and,  as  their  arrival  was  delayed  several  days  after  the  time  when  they 
should  have  reached  their  destination,  the  owner  was  not  obliged  to 
continue  his  inquiries  as  to  when  they  would  come,  and  the  notice  was 
not  sufficient  to  enable  him,  by  reasonable  diligence,  to  remove  the 
goods  during  the  day  on  which  the  notice  was  sent. 

Although  disposed  towards  the  view  that  the  carrier  should  give 
notice  if  its  desires  to  be  relieved  of  its  duty  as  a  carrier,  yet  we  are  not 
fully  prepared  to  overrule  the  Cleveland  Case  on  this  point.  This 
being  so,  the  only  question  left  open  is  the  one  relating  to  reasonable 
time  in  which  to  remove  the  goods.  That  the  consignee  should  have 
such  time  after  the  goods  have  been  placed  in  the  warehouse,  we  have 
no  doubt.  When  a  carrier  accepts  freight  for  transportation,  its  duty 
as  a  carrier  does  not  end  by  merely  carrying  the  goods  in  its  cars  to  the 
point  of  destination.  It  must  deliver  as  well  as  carry,  although  by 
this  we  do  not  mean  that  it  must  deliver  them  as  express  companies 
do,  to  the  home  or  place  of  business  of  the  consignee,  but  it  must  de- 
liver them  at  such  place  in  or  about  its  station  as  will  enable  the  con- 
signee to  conveniently  get  them.  It  may,  if  it  desires,  keep  them  in 
its  cars  or  place  them  in  its  warehouse,  but,  wherever  it  keeps  them,  it 
insures  their  safety,  except  against  the  causes  mentioned,  until  the 
consignee  has  reasonable  time  to  remove  them,  as  the  delivery  contem- 
plated is  not  fully  performed  until  the  consignee  has  had  this  time 
after  the  arrival  of  the  goods  in  which  to  remove  them.  And  this  is 
true,  although  the  bill  of  lading  or  contract  for  carriage,  as  in  this  case, 
provides,  "property  shall  be  at  the  risk  of  the  owner  from  the  time  of 
its  arrival  at  destination,  whether  in  the  vessel,  car,  depot,  or  place  of 
delivery ;  if  not  taken  possession  of  and  removed  by  the  party  entitled 
thereto  within  twenty-four  hours  thereafter,  shall  be  subject  to  a 
reasonable  charge  for  storage,  or,  at  the  option  of  the  carrier,  may  be 
removed  or  otherwise  stored  at  the  owner's  risk  and  cost ;  "  as  neither 
this  nor  any  other  stipulation  in  the  contract  or  bill  of  lading  will  be 
allowed  to  reduce  the  liability  of  the  carrier  below  what  it  was  at 
common    law.     Our  Constitution   (§  196)  provides  in  part  that  ''no 


DELIVERY    BY    CARRIER.  627 

common  carrier  shall  be  permitted  to  contract  for  relief  from  its 
common  law  liability;"  and,  under  the  common  law,  the  duty  and 
liability  of  the  common  carrier  was  not  terminated  until  the  go< 
after  the  carriage,  Avere  delivered  to  the  consignee.  2  Kent,  Com.  604  ; 
Moses  v.  Boston  &M.  R.  Co.  24  N.  EL  71,  55  Am.  Dec.  222.  But,  as  it  is 
not  deemed  reasonable  to  require  a  railway  carrier  of  freight  to  deliver 
the  goods  to  the  consignee  at  his  residence  or  place  of  business,  the 
rule  of  the  common  law,  in  the  interest  of  and  for  the  conveniens 
this  class  of  carriers,  has  been  modified,  and  now  it  is  only  required 
that  the  delivery  shall  be  at  the  point  of  destination,  and  at  this  place 
the  consignee  must  come  for  and  remove  his  goods  within  a  reasonable 
time  after  their  arrival,  during  which  time  the  common  law  liability 
of  the  carrier  continues. 

The  question  then  comes  up :  What  is  a  reasonable  time  ?  How 
is  it  to  be  determined  ?  Is  it  to  be  decided  by  the  court,  as  a  matter 
of  law,  or  by  the  jury,  as  a  matter  of  fact  ?  Some  courts  hold  that  a 
reasonable  time  for  the  consignee  to  remove  the  goods  is  not  to  be 
measured  by  any  peculiar  circumstances  in  his  own  condition  or  situa- 
tion, rendering  it  necessary,  for  his  own  convenience  and  accommoda- 
tion, that  he  should  have  a  longer  time  or  better  opportunity  than  if 
he  resided  in  the  vicinity  of  the  warehouse,  and  was  prepared  with  the 
means  and  facilities  for  taking  the  goods  away  ;  or,  to  put  it  in  another 
way,  a  reasonable  time  is  such  time  as  will  enable  one  living  in  the 
vicinity  of  the  place  of  delivery,  in  the  ordinary  course  of  business, 
and  in  the  usual  hours  of  business,  to  remove  the  goods.  Moses  v. 
Boston  &  M.  R.  Co.  32  N.  H.  523,  64  Am.  Dec.  381 ;  Leavenworth, 
L.  &  G.  R.  Co.  v.  Maris,  16  Kan.  333 ;  Wood  v.  Crocker,  18  Wis.  316, 
86  Am.  Dec.  773 ;  United  Fruit  Co.  v.  New  York  &  B.  Transp.  Co.  104 
Md.  576,  8  L.  R.  A.  (N.  S.)  240,  65  Atl.  415, 10  A.  &  E.  Ann.  Cas.  437 ; 
Columbus  &  W.  R.  Co.  v.  Ludden,  89  Ala.  612,  7  So.  471 ;  5  Am.  & 
Eng.  Enc.  Law,  pp.  263-274 ;  6  Cyc.  Law  &  Proc.  p.  445.  It  must  be 
conceded  that  this  rule  has  at  least  the  merit  of  easy  application,  and 
that  its  adoption  would  solve  the  question  of  what  is  a  reasonable 
time  with  little  difficulty.  Under  it  the  only  issue  of  fact  left  open 
would  be  the  time  of  day  the  goods  arrived  at  the  station ;  as,  if  they 
arrived  in  time  to  remove  them  on  that  day  in  the  usual  hours  of 
business,  then  they  must  be  removed  on  that  day,  or  afterwards  the 
carrier  would  hold  them  as  warehouseman ;  and  so,  if  they  arrived  in 
the  night,  they  must  be  removed  in  the  hours  of  business  on  the  fol- 
lowing day.  And  it  is  manifest  that,  if  this  rule  should  be  applied 
to  the  case  before  us,  the  carrier  would  be  relieved  of  responsibility, 
even  as  to  the  package  of  goods  that  arrived  at  noon  on  the  16th,  as 
a  person  living  in  the  vicinity  of  the  depot  could  have  removed  this 
package  as  well  as  the  ones  that  came  on  the  13th,  during  the  after- 
noon of  the  16th.  But  we  do  not  feel  disposed  to  follow  the  rule 
announced.  Nor  was  it  observed  in  the  Cleveland  Case.  supra.  There 
the  goods,  although  they  arrived  on  the  25th,  were  not  destroyed  until 


628  CARRIERS    OF   GOODS. 

the  night  of  the  26th,  and  yet,  notwithstanding  the  fact  that  the  con- 
signee had  the  entire  day  of  the  26th  in  which  to  remove  them,  the 
carrier  was  held  liable  as  a  carrier.  In  our  opinion,  the  true  test  of 
what  is  a  reasonable  time  depends  not  on  whether  the  consignee  lives 
in  the  vicinity  of  the  station,  or  whether  he  could  remove  the  goods 
in  the  usual  hours  of  business  on  the  day  of  their  arrival,  but  on  the 
question  whether  or  not  he  exercised  reasonable  diligence  to  ascertain 
when  the  goods  would  or  did  arrive,  and  reasonable  diligence  in  their 
removal,  after  he  received,  or,  in  the  exercise  of  reasonable  care, 
should  have  received,  notice  of  their  arrival.  If  the  consignee  is  pres- 
ent, or  if  he  has  notice  of  the  time  of  the  arrival  of  his  goods,  or  if  he 
is  notified  by  the  consignor  that  his  goods  have  been  shipped  on  a  certain 
day,  and  the  train  upon  which  they  are  shipped  arrives  on  schedule 
time,  he  should  remove  them  within  a  reasonable  time  thereafter  ;  and, 
if  he  fails  to  do  so,  the  liability  of  the  carrier  will  be  reduced  to  that 
of  a  warehouseman.  On  the  other  hand,  if  he  is  not  present,  and  has 
no  notice  of  when  they  arrive,  or  there  is  delay  in  the  transportation 
of  the  goods,  he  should  exercise  reasonable  diligence  to  inform  himself 
of  their  arrival,  and  have  a  reasonable  time  thereafter  to  remove  them. 
In  other  words,  the  period  at  which  the  reasonable  time  for  removal 
begins  is  when  the  consignee  knows,  or,  in  the  exercise  of  reasonable 
diligence,  should  know,  that  his  goods  have  arrived. 

In  every  state  of  case,  the  consignee  must  exercise  reasonable  dili- 
gence to  inform  himself  of  the  arrival  of  the  goods,  and,  if  he  wishes 
to  hold  the  carrier  liable  as  a  carrier,  must  remove  them  within  a 
reasonable  time  thereafter,  whether  it  be  a  day  or  a  week.  What  is 
reasonable  diligence  being,  like  reasonable  time,  a  question  of  fact, 
varying  with  each  case,  it  is  manifest  that  no  fixed  rule  can  be  laid 
down  to  measure  reasonable  time  or  reasonable  diligence.  What 
would  be  reasonable  in  one  instance  would  be  unreasonable  in  another ; 
and  so,  in  these  particulars,  each  case  must  be  adjudged  upon  the 
facts  it  presents.  If  the  consignee  is  to  have  a  reasonable  time  in 
which  to  remove  the  goods,  then  it  is  not  just  that  this  should  be 
measured  by  his  proximity  to  the  depot,  or  his  ability  to  remove  the 
goods  on  the  day  of  their  arrival.  All  consignees  should  be  treated 
alike,  no  matter  whether  they  live  close  to  or  far  from  the  depot.  If 
the  consignee  has  exercised  reasonable  diligence  in  ascertaining  when 
his  goods  arrived,  and  in  removing  them,  then  he  has  removed  them 
in  a  reasonable  time.  If  he  has  not  exercised  reasonable  diligence  in 
finding  out  when  his  goods  have  or  should  have  arrived,  and  in  remov- 
ing them,  he  has  not  removed  them  in  a  reasonable  time.  This,  not- 
withstanding the  respect  we  have  for  the  courts  that  define  reasonable 
time  in  the  manner  before  stated,  is,  we  submit,  the  true  rule,  and 
that  the  other  definition  is  both  illogical  and  unsound.  How  can  it 
be  said  that  a  consignee  who  does  not  know,  and,  in  the  exercise  of 
reasonable  care,  cannot  know,  that  his  goods  had  arrived,  has  had  a 
reasonable  time  to  remove  them  ?     How  can  it  be  said  that  a  person 


DELIVERY    BY    CARRIER.  1,20 

has  failed  to  do  a  thing  within  a  reasonable  time  when  he  has  no 
notice  that  he  will  be  required  to  do  it?     It  would  be  just  as  well  to 
abolish  the  rule  of  reasonable  time  as  to  say  that  the  time  when  rea- 
sonable time  commences  to  run  is  the  time  when  the  consignee  had 
not  and  could  not,  in  the  exercise  of  reasonable  diligence,  know  of  its 
beginning.     The  test  of  reasonable  time  should  not  be  made  to  turn 
on  whether  or  not  the  consignee  might  remove  them  on  the  day  of 
their  arrival,  if  he  can  do  this  in  the  business  hours  of  that  day.     To 
illustrate :  Under  this  rule,  if  a  box  of  goods  arrived  at  noon,  and  the 
warehouse  was  open  in  the  afternoon,  the  consignee,  if  present,  or 
notified  that  his  goods  would  be  sent  on  the  train  that  arrived  at  noon, 
and  the  train  reached  the  station  on  schedule  time,  would  have  a 
reasonable  time  in  the  business  hours  of  that  day  to  remove  them. 
But  let  us  suppose  that  he  is  not  present,  and  has  no  notice  that  his 
goods  have  arrived,  or  are  expected  to  arrive,  —  how  can  it  be  said  that 
he  has  had  a  reasonable  time  to  remove  them  on  the  day  of  their  arrival 
when  he  does  not,  and  by  the  exercise  of  reasonable  diligence  could 
not,  learn  of  their  arrival  until  the  following  day  or  the  day  there- 
after ?     Or  let  us  suppose  that  the  consignee  has  notice  that  his  goods 
have  been  shipped  at  a  certain  time,  and,  in  the  ordinary  course,  will 
reach  their  destination  at  a  certain  hour,  and  the  consignee  is  at  the 
station  when  the  train  is  due,  but  it  is  delayed,  and  does  not  come 
until  the  next  day  or  the  day  following,  —  must  the  consignee  wait 
until  its  arrival  ?     Or  let  us  suppose  that  the  goods,  in  the  course  of 
shipment,  are  in  some  way  delayed,  and  do  not  come  for  a  week,  — 
must  he  wait  in  attendance  at  the  depot?     These  examples,  which 
are  of  common  occurrence,  illustrate  that  the  rule  requiring  the  goods 
to  be  removed  on  the  day  of  their  arrival,  if  this  can  be  done  in  the 
usual  business  hours,  is  not  the  proper  test  of  what  constitutes  a  rea- 
sonable time  in  which  the  consignee  must  remove  his  goods  after  their 
arrival.     Nor  are  we  wanting  in  authority  for  the  views  Ave  have 
expressed  as  to  what  constitutes  reasonable  time.     In  Redfield  on  the 
Law  of  Railways,  6th  ed.  §  175,  the  learned  author,  speaking  upon 
this  point,  says:  "Upon  principle  it  seems  more  reasonable  to  con- 
clude that  the  responsibility  does  not  terminate  until  the  owner  or 
consignee,  by  watchfulness,  has  had,  or  might  have  had,  an  opportu- 
nity to  remove  them.  .  .  .  There  is,  then,  no  very  good  reason,  as  it 
seems  to  us,  why  the  responsibility  of  the  carrier  should  not  continue 
until  the  owner  or  consignee,  by  the  use  of  diligence  might  have 
removed  the  goods.     The  warehousing  seems  to  be  with  that  intent, 
and  for  that  purpose.     And  if  we  assume,  as  we  must,  we  think,  that 
there  is  no  obligation  upon   railway  carriers  to  give  notice  of  the 
arrival  of  the  goods,  there  does  still  seem  to  be  reason  and  justice  in 
giving  the  consignee  time  and  opportunity  to  remove  the  goods  by 
the  exercise  of  the  proper  watchfulness,  before  the  responsibility  of 
the  carrier  ends."     We  appreciate  the  fact  that  the  rule  we  have 
announced  is  open  to  objection  on  account  of  its  uncertainty  and  the 


630  CARRIERS   OF    GOODS. 

difficulty  of  its  application ;  but  it  is  not  more  uncertain  or  difficult 
of  application  than  any  other  matter  involving  like  questions  of  fact. 
The  decisions  of  many  of  the  most  important  business  affairs  that 
come  before  the  courts  turn  upon  the  question  of  what  is  reasonable 
time  and  what  is  reasonable  diligence.  These  two  factors  enter  into 
cases  that  come  up  every  day.  Nor  does  the  rule  impose  any  particu- 
lar hardship  on  the  carrier,  as  it  can,  by  giving  notice,  to  the  consignee 
of  the  arrival  of  his  goods,  reduce  its  liability  to  that  of  a  warehouse- 
man, if  the  consignee,  within  a  reasonable  time  after  the  reception  of 

the  notice,  does  not  remove  them 

The  judgment  of  the  lower  court  is  reversed. 


FAULKNEB   v.    HAET. 
82  N.  Y.  413.     1880. 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  in  favor  of  defendants,  entered  upon  a  case 
submitted  under  1279  of  the  Code  of  Civil  Erocedure.  (Eeported 
below,  12  J.  &  S.  471.) 

The  question  submitted  was  as  to  the  liability  of  defendants, 
common  carriers,  for  the  loss  of  certain  goods. 

Millep.,  J.  The  goods,  for  the  value  of  which  the  plaintiffs 
claim  to  recover  in  this  action,  were  shipped  at  New  York,  to  be 
transported  to  and  were  consigned  to  them  at  Boston;  and  they 
were  called  for  on  the  day  of  their  arrival,  but  a  delivery  was 
refused  until  the  next  day,  because  it  was  not  convenient  for  the 
defendant  to  deliver  them.  They  were  unloaded  from  the  cars  the 
same  afternoon,  but  too  late  for  delivery,  and  were  placed  during 
the  night  of  that  day  in  the  defendant's  warehouse,  and  before  the 
plaintiffs  had  an  opportunity  to  make'  another  demand  the  ware- 
house, together  with  the  goods,  was  destroyed  by  fire.  The  plain- 
tiffs were  doing  business  both  in  New  York  and  Boston,  and  all 
resided  in  Boston  except  one  of  them,  who  lived  in  New  Jersey. 
The  contract  for  transportation  of  the  goods  was  made  in  New  York, 
with  the  Norwich  and  New  York  Transportation  Company,  in  be- 
half of  itself  and  the  connecting  carriers  to  Boston,  and  they  were 
to  be  conveyed  to  Boston.  The  last  part  of  the  route  they  were 
placed  in  cars  upon  the  road,  operated  by  the  defendants. 

The  rule  as  to  the  liability  of  carriers  under  the  facts  stated  is 
well  established  by  the  law  merchant,  and  the  authorities  are  numer- 
ous which  sustain  the  position  that  the  carrier  is  bound  to  pay  for 
the  loss  of  the  goods  destroyed.  It  is  his  duty  not  only  to  transport 
the  goods,  but  he  has  not  performed  his  entire  contract  as  a  com- 


DELIVERY    BY    CARRIER.  631 

mon  carrier  until  he  has  delivered  the  goods,  or  offered  to  deli 
them  to  the  consignee,  or  has  done  what  is  equivalent,  by  giving  to 
the  consignee,  if  he  can  be  found,  due  notice  ai  eir  arrival,  and 

by  furnishing  him  a  reasonable  time  thereafter  to  take  charge  of  or 
to  remove  the  same.  Gatliffe  v.  Bourne,  4  Bing.  X.  C.  -".1  I  :  s.  <  .. 
11  Clarke  &  Fin.  45;  Price  v.  Powell,  3  Comst.  322;  Zinn  v.  N.  -I 
St.  Co.,  49  N.  Y.  442;  Sherman  v.  Hudson  Kiver  R.  R.  Co.,  G4  id. 
254;  The  Sultana  v.  Chapman,  5  Wis.  454;  Sleade  v.  Payne,  1  I 
La.  Ann.  453;  Graves  v.  H.  &  N.  Y.  St.  Co.,  38  Conn.  143;  C.  & 
R.  I.  R.  R.  v.  Warren,  16  111.  502;  Moses  v.  B.  &  M.  K.  R.,  32 
N.  H.  523;  The  Tangier,  1  Clifford,  396. 

In  view  of  the  rule  laid  down  in  the  authorities  cited,  there  would 
appear  to  be  no  serious  question  as  to  the  plaintiffs'  claim  to  recover 
for  the   value  of  the  goods   actually  destroyed.     The  right  of  the 
plaintiffs    to   recover    is    resisted,    and    exemption    for   liability    is 
claimed  by   reason  of  the  decisions  of  the  courts  of  the  State  of 
Massachusetts,  holding  adversely  to  the  rule  which  is  established 
at  common  law,  and  which,  as  we  have  seen,   has  been  generally 
adopted  and  sustained  in  this  country  and  in  England.     The  deci- 
sions of  that  State  established  that  the  proprietors  of  a  railroad, 
who  transport  goods  for  hire  and  deposit  them  in  a  warehouse  until 
the  owner  or  consignee  has  a  reasonable  time  to  take  them  away, 
are  not  liable  as  common  carriers  for  their  loss  by  tire  without  neg- 
ligence or  default  on  their  part;  that  the  railroad  corporation  ceases 
to  be  a  common  carrier,  and  becomes  a  warehouseman,  as  a  matter 
of  law,  when  it  has  completed  the  duty  of  transportation,  and  has 
assumed  the  position  of  a  warehouseman,  as  a  matter  of  fact,  and 
according  to  the  usages  and  necessities  of  the  business  in  which  it  is 
engaged.    Norway  Plains  Co.  v.  B.  &  M.  R.  R.  Co.,  1  Gray,  263  [616] ; 
Rice  v.  Hart,  118  Mass.  201.     These  decisions  are  entitled  to  the 
highest  respect;  but,  like  all  other  adjudications,  are  the  subject  of 
revisal,  limitation,  and  even  to  be  overruled  in  the  court  in  which 
they  originated.     The  same  right  exists  in  other  courts  to  consider 
and  pass   upon  the   same  question;    and  how  far   they  should   be 
allowed  to  control  their  decisions  in  a  cause  of  action  where  the  con- 
tract was  made  in  one  State,  and  performed  in  part  in  another  State 
where  the  law  has  been  decided  differently,  is  the  question  now  to 
be  determined.     It  was  long  since  held  in  this  State  that  we  could 
not  break  in  upon  the  settled  principles  of  our  commercial  law 
accommodate   them   to  those  of   any  country.     Aymar  v.   Sheldon, 
12  Wend.    439.     This   principle   is   well  established  in   regard   to 
all   contracts  of  a   commercial   character;    and   so  far   as   may 
practicable,    it   is    of    no   little    importance   that   the   rule    should 
be  harmonious    and  uniform.     Contracts  of   this    description    have 
been  the  subject  of   frequent  consideration    in  the  Federal  cour 
and    the   decisions    have    been   direct    and    clear,    that   while   the 
decisions  of  local  courts  in  reference  to  matters  purely  local  in  the 


632  CAKKIERS    OF    GOODS. 

States  are  obligatory  throughout  the  country,  they  are  not  con. 
elusive  and  final  as  to  questions  of  commercial  law.  In  Swift  v. 
Tyson,  16  Peters,  19,  the  court  say:  "The  true  interpretation  and 
effect  of  contracts  and  other  instruments  of  a  commercial  nature 
are  to  be  sought,  not  in  the  decisions  of  local  tribunals,  but 
in  the  general  principles  and  doctrines  of  commercial  jurispru- 
dence. Undoubtedly  the  decisions  of  the  local  tribunals  upon  such 
subjects  are  entitled  to,  and  will  receive,  the  most  deliberate  atten- 
tion and  respect  of  this  court;  but  they  cannot  furnish  positive 
rules  or  conclusive  authority  by  which  our  own  judgments  are  to  be 
bound  up  and  governed."  In  a  recent  case,  Oates  v.  Nat.  Bank,  100 
U.  S.  239,  the  State  court  in  Alabama  held  that  by  the  rules  of  the 
commercial  law,  one  who  receives  a  promissory  note  as  collateral 
security  for  a  pre-existing  debt  does  not  become  a  purchaser  for 
value  in  the  course  of  business,  so  as  to  cut  off  equities  which  the 
maker  may  have  against  the  payee;  and  on  appeal  it  was  held  that 
the  courts  of  the  United  States  are  not  bound  by  the  decisions  of 
the  State  courts  upon  questions  of  commercial  law.  This  principle 
has  been  repeatedly  upheld  in  other  cases.  Meade  v.  Beale,  Taney, 
339,  360;  Austen  v.  Miller,  5  McLean,  153;  The  Ship  George, 
Olcott,  89;  Pine  Grove  v.  Talcott,  19  Wall.  666;  Robinson  v.  Com. 
Ins.  Co.,  3  Sumn.  220.  In  Meade  v.  Beale  (supra)  it  is  said :  "Where 
the  State  court  does  not  decide  a  case  upon  the  particular  law  of 
the  State  or  established  usage,  but  upon  general  principles  of  com- 
mercial law,  if  it  falls  into  error,  that  erroneous  decision  is  not 
regarded  as  conclusive." 

From  the  authorities  cited  it  follows  that  if  the  higher  court  in 
the  State  of  Massachusetts  has  made  an  erroneous  decision,  wrong 
in  principle  and  contrary  to  a  well-settled  rule  of  commercial  law 
in  the  English  courts,  in  the  Supreme  Court  of  the  United  States, 
and  many  of  the  State  courts,  and  especially  adverse  to  the  decisions 
of  this  court,  it  should  not  be  followed  here;  and  it  is  not  only  the 
right,  but  the   duty  of  this  court  to  adhere  to  its  own   decisions. 

Any  other  rule  would  lead  to  confusion  in  regard  to  a  principle  of 
general  application;  for  if  the  doctrine  of  the  Massachusetts  Court 
is  to  prevail,  the  right  of  the  aggrieved  party  might  depend  upon  the 
fact  whether  the  action  was  brought  in  the  Federal  or  State  court ; 
and  if  the  action  in  this  case  had  been  brought  in  the  Circuit  Court 
of  the  United  States  for  the  State  of  Massachusetts,  the  plaintiffs 
would  be  entitled  to  recover,  while  in  the  State  court  a  different 
result  would  prevail.  Richardson  v.  Goddard,  23  How.  [U.  S.]  38; 
The  Tangier,  1  Clifford,  396;  Moses  v.  B.  &  M.  R,  R.,  32  K.  H.  523. 
This  court  has  the  same  authority  to  disregard  the  Massachusetts 
decisions,  in  a  case  involving  a  commercial  question,  as  that  court 
had  to  establish  a  rule  adverse  to  the  decisions  of  this  court,  as  was 
done,  virtually,  in  the  cases  cited.  Nor  is  it  important  to  determine 
whether,    upon   a   reconsideration,    any  different   rule  would   have 


DELIVERY   BY   CARRIER.  G33 

been  adopted.     It  is  sufficient  to  say  that  in  reference  to  a  law  not 
of  a  single  State,  but  affecting  the  commerce  of  the  world,  the  d 
sions  of  the  courts  of  such  State  are  not  obligatory  upon  the  courts 
of  other  States  or  countries. 

The  learned  counsel  for  the  respondents  argues  that,  as  the 
delivery  of  the  goods  was  to  be  made  in  Boston,  where  they  were 
destroyed,  the  law  of  Massachusetts  should  control  in  respect  to 
such  delivery;  and  we  are  referred  to  several  decisions  which,  it  is 
claimed,  sustain  this  doctrine.  Barter  v.  Wheeler,  49  N.  II.  'J: 
Gray  v.  Jackson,  51  id.  9;  Knowlton  v.  Erie  Railway  Co.,  19  Ohio 
St.  260;  M.  &  St.  P.  R.  Co.  v.  Smith,  7  Chicago  Leg.  News,  171. 
While  these  cases  uphold  the  general  principle,  that  where  the  con- 
tract is  to  be  performed  partly  in  one  country  and  partly  in  another 
country,  each  portion  is  to  be  interpreted  according  to  the  laws  of 
the  country  where  it  is  to  be  performed, — a  rule  which  is  fully 
sustained  by  authority  (see  Story  on  Cont.,  §  655;  Pope  v.  Nicker- 
son,3  Story,  474,  485;  Scudder  v.  Union  Nat.  Bank,  1  Otto,  413; 
Pomeroy  v.  Ainsworth,  22  Barb.  118),  none  of  them  hold  that  where 
a  great  principle  of  commercial  law  has  been  established,  which  is 
universally  acknowledged  and  acquiesced  in,  that  the  law  announced 
by  the  courts  of  a  single  State  can  overturn  that  principle  and  con- 
trol the  decisions  of  the  courts  of  another  and  a  distant  State.  No 
such  question  arose  in  any  of  the  cases  cited ;  and  the  answer  to  the 
position  taken,  that  the  decision  of  the  local  courts  should  control, 
is  that  such  decisions  are  not,  under  the  circumstances,  a  correct 
interpretation  of  the  rule  of  law  in  such  a  case,  and  are  not  the 
accepted  law  of  the  land.  It  is  erroneous  and  must  fall,  for  the 
reason  that  it  cannot  be  upheld,  either  upon  principle  or  authority. 

Nor  are  any  of  the  authorities  cited  applicable  to  the  case  con- 
sidered. As  to  those  cited  from  the  State  of  New  Hampshire,  it 
may  be  remarked  that  the  precise  question  was  presented  in  Moses 
v.  B.  &  M.  R.  R.  Co.,  32  N.  H.  523,  where  the  goods  were  trans- 
ported to  Boston  and  burned  before  the  consignee  had  an  opportunity 
to  remove  them;  and  the  authority  of  the  Massachusetts  cases  was 
repudiated,  and  it  was  said  that  by  the  rule  there  laid  down  the 
salutary  principles  of  the  common  law  are  sacrificed  to  considera- 
tions of  convenience  and  expediency,  in  the  simplicity  and  pn 
and  practical  character  of  the  rule  which  it  established.  The  case 
of  Curtis  v.  D.,  L.  &  W.  R.  R.  Co.,  74  N.  Y.  116,  involve,!  a  ques- 
tion as  to  the  effect  of  a  local  statute  of  Pennsylvania,  limiting  the 
defendant's  liability,  upon  the  law  applicable  to  such  a  case  in  the 
State  of  New  York.  It  was  held  that  the  lex  loci  contractus  did  not 
control,  the  place  of  delivery  being  a  material  and  important  pari  of 
the  contract  and  in  contemplation  of  the  parties  at  the  time.  It  was 
said  that  it  was  a  reasonable  inference  that  it  was  entered  into  with 
reference  to  the  laws  of  the  place  where  delivered.  The  case  last 
cited  did  not  involve  any  such  question  as  is  here  presented,  as  1 1 


634  CARRIERS    OF   GOODS. 

was  no  conflict  in  reference  to  the  decisions  of  the  courts,  and  no 
question  made  as  to  any  general  rule  of  commercial  law  being 
involved,  as  is  the  case  here. 

If  there  had  been  a  positive  statute  of  the  State  of  Massachusetts 
providing  that  the  carrier's  liability  should  cease  when  the  goods 
had  been  deposited  at  the  end  of  the  route  in  a  suitable  warehouse, 
a  different  question  would  arise,  and  it  might  well  be  contended 
that,  as  the  question  arose  under  the  statute  of  that  State,  the  ques- 
tion of  liability  would  depend  upon  the  construction  placed  upon 
such  statute  by  the  court  in  Massachusetts,  in  accordance  with  the 
decisions  of  the  court  of  this  State  and  the  Supreme  Court  of  the 
United  States.  Jessup  v.  Carnegie,  80  N.  Y.  441;  Mills  v.  M.  C. 
E.  B.  Co.,  45  id.  626;  Whitford  v.  Panama  B.  E.  Co.,  23  id.  465; 
Elmendorf  v.  Taylor,  10  Wheat.  152;  Shelby  v.  Guy,  11  id.  367; 
Town  of  Ottawa  v.  Perkins,  94  U.  S.  260;  Fairfield  v.  County  of 
Gallatin,  MS.  Op.  U.  S.  Sup.  Ct.  But  no  such  question  arises  in 
the  case  at  bar.  So,  also,  if  the  Massachusetts  cases  were  decisive 
as  to  the  law  upon  the  question  considered,  it  might  well  be  urged 
that  the  plaintiff  entered  into  the  contract  having  them  in  view. 
But,  as  we  have  seen,  they  are  not  conclusive,  and  the  real  point  is, 
what  is  the  common-law  rule?  And  the  courts  of  Massachusetts 
having  decided  one  way,  and  the  courts  of  the  United  States  and  of 
this  State,  as  well  as  those  of  other  States  and  countries,  differently, 
it  is  open,  in  a  case  arising  in  the  courts  of  this  State,  to  determine 
the  true  rule.  It  is  the  same  subject,  and  involves  the  precise  point, 
whether  the  common  law  shall  prevail,  and  whether  the  decision  of 
the  State  court  is  erroneous.  The  question  is  not  as  to  the  applica- 
tion of  a  local  statute  or  a  local  law,  but  one  of  a  comprehensive 
character,  affecting  a  general  rule  applicable  to  all  contracts  of  the 
nature  of  the  one  now  involved. 

The  fact  that  the  defendants  were  not  carriers  between  New  York 
and  Boston,  but  only  for  a  portion  of  the  route,  and  that  they  made 
no  contract  directly  with  the  plaintiffs,  cannot  affect  the  question  as 
to  the  liability  upon  the  contract  made  on  their  behalf  for  transpor- 
tation over  their  portion  of  the  route.  As  the  original  contract  was 
made  in  New  York  for  a  through  transportation,  the  connecting  car- 
rier was  entitled  to  all  the  benefits  of  the  contract,  as  well  as  to  any 
special  exemptions  it  contained.  Maghee  v.  C.  &  A.  E.  E.  Co., 
45  N.  Y.  514,  521;  Lamb  v.  The  Same,  46  id.  271.  For  the  same 
reason  they  would  be  subject  to  all  the  obligations  incurred  thereby. 
The  contract  between  the  first  carrier  and  the  connecting  carrier  is 
deemed  to  have  been  made  for  the  shipper's  benefit,  and  is  ratified 
by  bringing  the  suit.  Green  v.  Clark,  2  Kern.  343.  And  each  of 
the  connecting  lines  is  responsible  for  injuries  on  its  own  line, 
except  where  there  is  an  express  contract  for  carriage  beyond  the 
terminus.  Condict  v.  G.  T.  E.  E.  Co.,  54  N.  Y.  500;  Eoot  v.  G. 
W.  E.  E.  Co.,  45  id.  524;  Sherman  v.  H.  E.  E.  E.  Co.,  64  id.  260. 


DELIVERY    BY   CARRIER. 

The  contract,  being  made  in  New  York,  is  binding  upon  the  plain- 
tiffs, the  shippers,  and  the  defendants,  the  connecting  carriers,  so 
far  as  they  undertook  to  perforin  it;  and  although  their  liability 
arose  at  the  end  of  their  route,  yet  it  was  under  the  contract  as  made 
in  New  York. 

We  are  referred  to  a  number  of  cases  by  the  learned  counsel  for 
the  respondents,  to  sustain  the  proposition  that  the  general  obliga- 
tion created  by  the  law  of  the  place  of  delivery,  in  respect  to  the 
mode  of  delivery  by  a  carrier,  controls;  and  it  is  urged  that  when 
by  the  law  of  the  place  of  delivery  the  carrier  had  a  right  to  store 
the  goods,  the  nature  of  the  bailment  is  changed,  and  the  carrier  is 
relieved  from  the  responsibility  originally  assumed,  and  the  liability 
of  a  warehouseman  is  substituted.  We  do  not  deem  it  necessary  to 
controvert  the  correctness  of  the  rule  laid  down,  where  it  does 
interfere  with  the  general  principles  and  doctrines  of  commercial 
jurisprudence;  but  there  is  no  case  cited  which  holds  that  the  court 
of  another  State,  where  an  action  is  pending,  may  not  adhere  to  its 
own  rules  and  disregard  the  decision  of  a  State  which  overrules  a 
great  principle.  As  we  have  seen,  the  United  States  Supreme  Court 
have  refused  to  sustain  the  decisions  of  the  State  court  when  vio- 
lating a  great  principle;  and  the  rule  is  a  sound  one  which  upholds 
the  position  that  the  decisions  of  the  State  court  should  not  be  fol- 
lowed to  such  an  extent  as  to  make  a  sacrifice  of  truth,  justice,  and 
law.  Gelpcke  v.  Dubuque,  1  Wall.  175,  205;  Olcott  v.  Supervisors, 
16  id.  678.  It  is  upon  a  principle  of  comity,  that  one  State  rei 
nizes  and  admits  the  operation  of  the  laws  of  another  State  within 
its  own  jurisdiction,  where  such  law  is  not  contrary  to  its  own 
rules  of  policy,  or  to  abstract  right,  or  the  promotion  of  justice  and 
morality;  but  this  principle  should  never  be  carried  to  the  extent  of 
holding  that  a  suitor  in  its  courts  is  debarred  from  the  maintenance 
of  his  just  rights  according  to  its  well-established  decisions  and 
laws,  and  the  general  principles  of  the  common  law  which  it  has 
fully  recognized  and  which  are  almost  universally  regarded  and 
accepted,  in  reference  to  the  question  presented,  wherever  the  com- 
mon law  prevails.  No  rule  of  comity  demands  any  such  sacrifice  in 
the  business  intercourse  between  the  people  of  the  different  Sta 
and  great  injustice  might  follow  by  yielding  to  such  a  principle,  and 
in  sustaining  a  rule  of  law  which  was  wrong  in  itself,  hostile  to  the 
policy  and  law  of  the  State  where  the  contract  was  made,  and  adverse 
to  the  general  current  of  authority  elsewhere.  King  v.  Sanaa. 
69  N.  Y.  24. 

In  the  consideration  and  determination  of  the  case  b<  fore  us,  it  is 
worthy  of  notice  that  the  contract  made  in  New  York,  as  the  rec 
shows,  was,  in  effect,  in  conformity  with  the  usual  course  of  busi- 
ness, that  the  goods  were  to  be  delivered  to  the  consignees.  In  Rice 
v.  Hart,  supra,  the  contract  was  merely  to  transport  to  Boston,  and 
was  silent  as  to  delivery.     It  may,  perhaps,  be  doubted  whether  the 


638  CARRIERS   OF   GOODS. 

agreement  to  deliver  to  the  plaintiffs  as  consignees  was  satisfied  by 
a  delivery  to  the  defendants,  especially  after  a  demand  by  the  plain- 
tiffs and  a  refusal  to  deliver  to  them. 

If  the  shipper  was  entitled  to  the  benefit  of  a  contract  to  deliver 
the  goods  to  the  consignees  without  any  restriction,  it  is  not  entirely 
clear  that  the  rule  laid  down  in  the  Massachusetts  decisions  is 
applicable.  Without,  however,  expressing  a  decisive  opinion  upon 
the  question  last  discussed,  for  the  reasons  already  apparent,  the 
rule  adopted  in  the  Massachusetts  cases  cannot  be  sustained.  It 
should  not  be  overlooked  that  the  point  presented  does  not  involve 
solely  a  question  as  to  a  local  law,  but  part  of  a  system  of  general 
commercial  law.  That  the  court  in  Massachusetts  had  decided  the 
law  contrary  to  what  it  was  is  not  controlling;  for  it  maybe  assumed, 
even  if  the  parties  had  knowledge  of  the  decision,  that  they  knew 
it  was  contrary  to  the  current  of  authority  in  similar  cases,  and  con- 
tracted, having  in  view  the  law  as  it  actually  existed.  Like  an 
unconstitutional  law,  void  of  itself,  the  decision  was  not  the  law, 
and  is  not  to  be  regarded  as  authority  for  that  reason. 

The  judgment  should  be  reversed,  and  judgment  should  be  ren- 
dered in  favor  of  the  plaintiffs  for  $6,156.95,  with  interest  from 
November  7,  1872,  with  costs.1 


KANSAS   CITY,   F.    S.   &   M.    R.   CO.    v.   McGAHEY. 

63  Ark.  344  ;  38  S.  W.  R.  659 ;  36  L.  R.  A.  781 ;  58  Am.  St.  R.  111.     1897. 

Battle,  J.  "  Baggage,"  as  defined  by  Lord  Chief  Justice  Cockburn 
in  Macrow  v.  Great  Western  Railway  Co.,  L.  R.  6  Q.  B.  612,  is 
"  whatever  the  passenger  takes  with  him  for  his  personal  use  or  con- 
venience, according  to  the  habits  or  wants  of  the  particular  class  to 
which  he  belongs,  either  with  reference  to  the  immediate  necessities 
or  to  the  ultimate  purpose  of  the  journey."  As  said  by  Mr.  Justice 
Field  in  Hannibal  Railroad  v.  Swift,  12  Wall.  272  [342],  the  contract 
of  the  carrier  to  carry  a  passenger,  as  to  baggage,  "  only  implies  an 
undertaking  to  transport  such  a  limited  quantity  of  articles  as  are 
ordinarily  taken  by  travelers  for  their  personal  use  and  convenience, 
such  quantity  depending,  of  course,  upon  the  station  of  the  party,  the 
object  and  length  of  his  journey,  and  many  other  considerations." 
Uuder  the  statutes  of  this  state,  "  each  passenger  who  shall  pay  fare 
.  .  .  shall  be  entitled  to  have  transported  along  with  him,  on  the  same 
train,  and  without  additional  charge,  one  hundred  and  fifty  pounds  of 
baggage,  to  consist  of  such  articles  as  are  usually  carried  by  ordinary- 
persons  when  traveling."  Sand.  &  H.  Dig.,  sec.  6215.  With  the  ex- 
1  Ace. :  Railroad  Co.  v.  Hatch,  52  Ohio  St.,  408,  39  N.  E.  R.  1042. 


DELIVERY    BY    CARRIER. 

ception  of  the  amount  of  the  baggage,  the  statute  is  substantially  the 
contract  of  the  carrier  with  the  passenger,  as  stated  in  Hannibal  Rail- 
road Co.  v.  Swift,  supra. 

What  is  baggage,  within  the  rule  of  the  carrier's  liability,  is  often 
difficult  to  determine.  It  depends,  as  already  stated,  in  a  great 
measure  upon  the  condition  in  life  of  the  passenger,  and  the  length, 
nature,  and  object  of  his  journey.  According  to  this  criterion,  the 
following  articles  have  been  held  to  constitute  baggage :  the  wearing 
apparel  of  the  passenger  in  all  cases ;  the  easel  of  an  artist  on  a  sketch- 
ing tour ;  the  gun  or  fishing  tackle  of  the  sportsman  when  on  a  hunting 
or  fishing  excursion ;  the  costly  laces  of  a  lady  of  wealth,  high  rank 
and  social  standing,  traveling  on  a  railway  ;  "  a  manuscript  price  book, 
which  a  commercial  agent  took  in  his  valise,  and  used  in  making 
sales  ; "  the  surgical  instruments  of  a  surgeon  in  the  army,  traveling 
with  troops;  a  few  books  carried  for  amusement  or  entertainment; 
and  the  manuscript  books  of  the  passenger  used  in  the  prosecution  of 
his  studies.  Many  cases  upon  this  subject  have  been  collected  in 
a  valuable  treatise  by  Judge  U.  M.  Rose  upon  the  "  General  Liability 
of  Carriers  of  Passengers  for  Baggage,"  in  2  Am.  &  Eng.  R.  Cases, 
(N.  S.)  1. 

When  a  passenger  presents  to  the  carrier  for  transportation  his  goods 
and  chattels,  and  makes  known  what  they  are,  or  exposes  them  to  view, 
or  packs  them  in  a  way  to  give  to  any  one  concerned  good  reason  to 
understand  and  know  that  they  are  not  usually  carried  as  baggage, 
and  demands  transportation  of  them  as  his  luggage,,  and  the  carrier 
receives  and  carries  them  accordingly,  he  will  be  responsible  for  them 
as  baggage,  notwithstanding  he  was  not  bound  to  accept  and  trans- 
port them  as  such.  If  he  wishes  to  avoid  responsibility  for  them  as 
baggage,  he  must  refuse  to  receive  them  in  that  way.  Railway  Co.  v. 
Berry,  60  Ark.  433 ;  Minter  v.  Pacific  Railroad  Co.,  41  Mo.  503  ; 
Sloman  v.  Great  Western  Railway  Co.,  67  N.  Y.  208 ;  Great  Northern 
Railway  Co.  v.  Shepherd,  8  Exch.  30  [338] ;  Mauritz  v.  K  Y.,  Lake 
Erie  &  Western  R.  Co.,  21  Am.  &  Eng.  R.  Cases,  286;  Waldron  v. 
Chicago  &  K  W.  R.  Co.,  46  K  W.  Rep.  456 ;  Oakes  v.  Northern 
Pacific  R.  Co.,  48  Am.  &  Eng.  R.  Cases,  437 ;  Hannibal  Railroad  v. 
Swift,  12  Wall.  262  [342]  ;  Texas,  etc.,  R.  Co.  v.  Capps,  16  Am.  &  Eng. 
R.  Cases,  118 ;  Hamburg-American  Packet  Co.  v.  Gattman,  127  111.  598. 

In  Railway  Company  v.  Berry,  60  Ark.  433,  this  court  held  "that 
where  a  passenger,  who  is  ignorant  of  the  rules  or  instructions  of  rail- 
way companies  forbidding  agents  to  receive  money  for  transportation 
as  baggage,  delivers  to  the  baggage  agent  more  money  than  the  can 
is  required  to  transport,  and  informs  the  agent  of  the  amount  (it 
being  inclosed  in  the  baggage,  and  concealed  from  view),  if  he  accepts 
it  to  ship  as  baggage,  and  a  loss  occurs,  the  carrier's  common-law 
liability  will  attach." 

In   Minter   v.   Pacific   Railroad,    supra,  a  passenger  delivered  his 
trunk  and  a  piece  of  carpet  to  the  baggage  master  of  a  railroad  com- 


638  CARRIERS    OF    GOODS. 

pany.  The  carpet  was  exposed  to  view.  The  passenger  received  a 
check  for  the  trunk,  but  was  told  that  none  was  necessary  for  the 
carpet,  as  it  would  go  safely.  The  carpet  was  lost,  and  a  suit  was 
brought  for  the  recovery  of  its  value.  The  court  held  that,  inasmuch 
as  the  railroad  company  had  received  and  treated  the  carpet  as  personal 
baggage,  it  was  liable  for  the  loss  of  it,  although,  by  the  printed  rules 
of  the  company,  the  baggage  master  was  forbidden  to  receive  as 
passenger's  baggage  articles  of  merchandise. 

In  Sloman  v.  Great  Western  Railway  Co.,  supra,  the  plaintiff's  son, 
a  lad  eighteen  years  of  age,  was  employed  by  him  as  traveling  agent 
to  sell  goods  by  sample.  He  had  two  large  trunks  containing  the 
samples,  and  a  valise  for  his  personal  baggage.  The  trunks  did  not 
present  the  appearance  of  ordinary  traveling  trunks.  They  were 
thirty  inches  long,  twenty-seven  deep  and  twenty-four  wide,  une  was 
covered  with  oil-cloth,  and  the  other  was  of  wood.  "  He  delivered  the 
trunks  to  a  baggage  master  at  a  railroad  depot,  and,  when  asked  where 
he  wanted  them  checked  to^  replied  that  he  did  not  then  know,  as  he  had 
sent  a  dispatch  to  a  customer  at  Fentonville  to  know  if  he  wanted  any 
goods ;  if  not,  he  wanted  them  to  go  to  Rochester,  where  he  expected 
to  meet  some  customers.  Soon  after  he  had  them  checked  to  Rochester, 
paying  two  dollars,  and  receiving  a  receipt  ticket  for  them,  headed 
'Receipt  Ticket  for  Extra  Baggage  and  Dogs.'  The  court  held  that 
the  jury  were  authorized  by  these  facts  to  infer  that  the  baggage  mas- 
ter understood  that  the  agent  was  traveling  for  the  purpose  of  selling 
goods,  and  that  these  trunks  contained  his  wares  ;  and  that  he  was  not 
entitled  to  have  them  carried  as  ordinary  baggage ;  and  further  held 
that  the  railroad  company,  having  this  notice,  was  responsible  for  the 
loss  of  the  trunks  and  their  contents." 

Some  courts  hold  that  where  a  railroad  company  receives  for  trans- 
portation property  which  it  is  not  bound  by  its  contract  with  passen- 
gers to  transport  as  personal  baggage,  of  which  it  has  notice,  it  must  be 
considered  to  assume,  with  reference  to  such  property,  the  liability  of 
a  common  carrier  of  merchandise  (Hannibal  Railroad  v.  Swift,  supra  ; 
Sloman  v.  Great  Western  Railway  Co.,  supra) ;  while  others  say  that, 
if  it  received  the  property,  under  such  circumstances,  as  baggage,  it  will 
be  responsible  therefor  as  a  common  carrier,  and  will  be  estopped  from 
denying  that  it  was  baggage.  Texas  &  P.  R.  Co.  v.  Capps,  16  Am.  & 
Eng.  R.  Cases,  118;  Minter  v.  Pacific  R.  Co.,  41  Mo.  403;  Hoeger  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  63  Wis.  100,  21  Am.  &  Eng.  R.  Cases,  308; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Conklin,  32  Kas.  5o,  16  Am.  &  Eng.  R. 
Cases,  116  ;  Butler  v.  Hudson  River  R.  Co.,  3  E.  D.  Smith  (N.  Y.)  571 ; 
Railway  Company  v.  Berry,  60  Ark.  433.  It  seems  to  us  the  latter 
view  is  sustained  by  the  better  reason  and  weight  of  authority.  But, 
be  that  as  it  may,  the  liability  of  the  carrier  for  loss  and  damage  in 
transportation  in  either  case  is  the  same. 

In  the  case  under  consideration,  the  plaintiff.  McGahey,  purchased 
for  himself  and  his  family,  consisting  of  a  wife  and  three  small  chil- 


Thirty  dresses  (children's)    .     .     . 
Twenty-five  shirts  and  underwear 
Twenty  articles  underwear,  ladies' 

Twelve  pairs  socks       

Twenty-five  yards  cloth 


DELIVERY    BY    CARRIER. 

dren,  three  tickets,  Avhich  entitled  him  to  transportation  for  himself 
and  family  and  450  pounds  of  baggage  over  the  railway  of  the  defend- 
ant railroad  company  from  Sulligent,  in  the  state  of  Alabama,  to  Mam- 
moth Springs,  in  this  state.  He  delivered  to  the  company  his  baggage, 
which  was  contained  in  two  trunks  and  three  boxes,  and  weighed  over 
500  pounds,  and  paid  the  usual  rate  for  the  weight  in  excess  of  his 
baggage  allowance,  and  received  checks  for  the  trunks  and  boxes,  which 
contained  property  of  the  following  description  and  value : 

"Four  feather  beds  40  lbs.  each,  40  cts $64.00 

Ten  pillows  4  lbs.  each,  at  40  cts 16.00 

Forty-five  quilts  at  $5  each 225.00 

Three  pairs  of  blankets  at  $5 15.00 

Three  bed  ticks  at  $2 6.00 

Five  double  woven  counterpanes  at  §6    ........     .        30.00 

Fourteen  bed  sheets  at  50  cts 7.00 

Thirty  pillow  slips  at  15  cts ■ 4.50 

Eight  dresses  (ladies')  $2 16.00 

30.00 

12.00 

Estimate 12.00 

1.80 

3.G0 

Razor  hone 1-50 

Knitting  yarn 1-50 

Three  suits  clothing 24.00 

Two  pairs  pants --00 

Four  cotton  shirts 2.00 

Four  pairs  drawers  (gents')        1.60 

Two  razors 3.00 

Two  pairs  shoes  (ladies') -••),) 

Five  table  cloths '■'•■"" 

Eight  hand  towels 2.00 

One  lot  of  pictures  (photographs) 10.00 

One  lot  carpenter  tools 5.00 

Seven  books 2.70 

Set  knives  and  forks 1-00 

One  clock !-25 

Six  buckets  and  two  flat  irons 

Total  amount 8508.95" 

The  trunks  were  of  the  aggregate  value  of  five  dollars.  From  this 
description  of  the  trunks  and  boxes  and  their  contents,  it  is  evident 
that  the  trunks  and  boxes  must  have  been  of  a  size  very  much  larger 
than  was  necessary  to  hold  the  ordinary  luggage  of  the  number  of  per- 
sons entitled  to  transportation  on  three  tickets  would  amount  to.  It  is 
highly  improbable  that  the  plaintiff  would  carry  with  him  such  1 
trunks  and  boxes  for  the  purpose  of  carrying  such  personal  effects  of 
himself  and  family  as  he  was  entitled  to  have  carried  as  baggage  on 
three  tickets.  The  effects  contained  in  the  boxes  were  thereby  pa< 
in  such  a  manner  as  to  indicate  they  were  not  carried  as  necessary  per- 
sonal baggage  to  be  used  on  the  journey,  but  as  merchandise  would  be 
when  it  reaches  its  place  of  destination.     From  all  these  circumstances, 


640  CARRIERS    OF    GOODS. 

we  think  that  the  judge,  sitting  as  a  jury,  as  he  did  in  this  case,  was 
authorized  to  infer  that  the  company  was  put  upon  notice,  and  given 
to  understand,  that  the  trunks  and  boxes  contained  more  than  the  or- 
dinary baggage,  and  that  it  accepted  and  treated  the  contents,  without 
regard  to  what  they  might  be,  as  baggage,  and  transported  them  ac- 
cordingly. 

Railroad  companies  are  responsible  as  common  carriers  for  the  bag- 
gage of  their  passengers.  Such  responsibility  continues  until  the 
baggage  is  ready  to  be  delivered  to  the  owner  at  the  place  of  his  des- 
tination, and  until  he  has  had  a  reasonable  time  and  opportunity  to 
come  and  take  it  away.  If  it  be  not  called  for  in  a  reasonable  time, 
the  company  may  store  it  in  a  secure  warehouse,  when  it  becomes  a 
mere  warehouseman,  and  is  thenceforward  bound  to  exerci:,^  the  same 
care,  and  no  more,  that  ordinary  prudent  men  do  in  keeping  their  own 
goods  of  similar  kind  and  value.  Mote  v.  Chicago  &  N.  W.  R.  Co., 
27  Iowa,  22 ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Boyce,  73  111.  510. 

What  constitutes  a  reasonable  time  and  opportunity  for  a  passenger 
to  remove  his  baggage  is,  ordinarily,  a  mixed  question  of  fact  and 
law.  When  the  facts  are  in  dispute,  the  jury  should  decide,  under 
the  instructions  of  the  court  as  to  the  law ;  otherwise,  it  is  a  question 
of  law,  and  the  court  should  decide  it.  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Boyce,  73  111.  510;  Louisville,  C.  &  L.  R.  Co.  v.  Mahan,  8  Bush,  184; 
Roth  v.  Buffalo  &  S.  L.  R.  Co.,  34  N.  Y.  548. 

No  absolute  rule  on  this  subject  can  be  stated.  In  determining 
whether  a  passenger  has  had  a  reasonable  time  in  which  to  receive 
and  remove  his  baggage,  "the  customs  of  the  railway  and  of  the 
station,  the  manner  of  transporting  baggage  therefrom,  in  short,  the 
peculiar  circumstances  surrounding  each  case,"  except  as  hereafter 
stated,  must  be  considered.  Mote  v.  Chicago  &  N.  W.  R.  Co.,  27 
Iowa,  22. 

In  many  places,  especially  in  cities,  transportation  for  baggage  can 
be  procured  immediately  upon  its  arrival  by  railroad  trains  and  steam- 
boats. If  such  places  be  its  destination,  it  is  the  duty  of  the  passen- 
ger to  present  his  check  and  receive  it,  on  its  arrival  by  train  or 
steamboat,  or  as  soon  thereafter  as  the  checks  can  reasonably,  under 
the  circumstances,  be  presented,  and  the  baggage  delivered.  If  he 
refuses  or  neglects  to  do  so,  the  liability  of  the  carrier  is  changed  from 
that  of  an  insurer  to  the  responsibility  of  a  warehouseman.  Roth  v. 
Buffalo  &  State  Line  R.  Co.,  34  K  Y.  548 ;  Ouimit  v.  Henshaw,  35  Vt. 
605. 

"  The  passenger,  however,  cannot  extend  the  strict  and  rigid  liabil- 
ity of  common  carriers  as  insurers  by  postponing  the  time  of  taking 
possession  of  his  baggage  for  his  own  convenience  on  account  of  its 
arrival  at  a  late  hour  of  the  night,  or  his  peculiar  circumstances.  In 
Chicago,  Rock  Island  &  Pacific  Railroad  Co.  v.  Boyce,  73  111.  510,  it 
was  held  that  the  fact  that  a  passenger  on  a  railroad  is  taken  sick, 
and  is  given  a  lay-over  ticket,  so  that  he  does  not  reach  his  destina- 


DELIVERY    BY    CARRIER.  (',11 

tion  as  soon  as  his  baggage,  will  not  have  the  effect  of  extending 
liability  of  the  carrier  as  insurer  beyond  what  it  would  otherwise  be." 

In  the  case  before  us  the  plaintiff  and  his  baggage  arrived  at  Mam- 
moth Springs,  their  place  of  destination,  at  11.08  o'clock  at  night. 
There  were  no  conveyances  at  the  depot,  or  running  at  that  hour. 
They  were  in  the  city,-"  a  mile's  distance  from  the  defendant's  depot." 
The  plaintiff,  although  he  saw  his  baggage  on  the  platform,  made  no 
demand  for  it  during  the  night  of  its  arrival,  but  left  it  in  the  po- 
sion  of  the  defendant,  who  stored  the  same  in  its  warehouse,  which 
was  destroyed  with  the  baggage  by  fire  about  one  o'clock  that  night. 

According  to  the  evidence,  it  appears  that  plaintiff  had  a  reasonable 
time  in  which  he  might  with  the  use  of  diligence  have  received 
removed  his  baggage  before  the  fire  occurred.  There  is  no  excuse 
given  for  his  failure  to  do  so,  except  the  lateness  of  the  hour,  and  the 
fact  that  no  vehicles  were  at  the  depot  or  "  running  "  that  night,  by 
which  it  could  have  been  removed.  This  merely  shows  that  it  was 
inconvenient  for  him  to  remove  it  during  the  night.  This,  in  the  ab- 
sence of  a  better  showing,  was  not  sufficient  to  extend  the  reasonable 
time  within  which  the  plaintiff  should  call  for  it  to  the  next  morning, 
so  that,  it  not  being  called  for,  the  defendant  became  liable  for  its 
custody  as  a  carrier.  "  If  it  was  not  the  usual  course  of  business  for 
the  defendant  to  deliver  baggage  immediately  on  the  arrival  of  the 
train  at  that  late  hour  of  the  night,  or  if  the  railroad  company  detained 
the  plaintiff's  baggage  for  their  own  convenience  upon  the  arrival  of 
the  train,  such  facts  should  have  been  shown  by  the  plaintiff,  and,  if 
shown,  might  vary  the  defendant's  liability  for  the  custody  of  the 
property.  But  we  cannot  presume  such  facts  to  exist."  Ouimit  v. 
Henshaw,  35  Vt.  616. 

The  defendant  company  not  being  liable  as  common  carrier  for  the 
loss  of  the  baggage  of  plaintiff,  before  he  could  recover  on  account 
thereof,  it  was  necessary  for  him  to  show  that  the  fire  was  the  result 
of  such  negligence  of  the  railroad  company  as  would  make  it  liable  as 
a  warehouseman  for  hire,  which  he  failed  to  do. 

Reversed  and  remanded  for  a  new  trial. 


642  CARRIERS    OF   GOODS. 

B.     Termination  of  Liability  as  Bailee. 
a.    Delivery  to  Connecting  Carrier. 

RAILROAD   CO.   v.   MANUFACTURING  CO. 

16  Wall.  (U.  S.),  318.     1872. 

In  error  to  the  Circuit  Court  for  the  District  of  Connecticut;  the 
ease  being  thus :  — 

In  October,  1865,  at  Jackson,  a  station  on  the  Michigan  Central 
Railroad,  about  seventy-five  miles  west  of  Detroit,  one  Bostwick 
delivered  to  the  agent  of  the  Michigan  Central  Railroad  Company, 
for  transportation,  a  quantity  of  wool  consigned  to  the  Mineral 
Springs  Manufacturing  Company,  at  Stafford,  Connecticut,  and  took 
a  receipt  for  its  carriage,  on  the  back  of  which  was  a  notice  that  all 
goods  and  merchandise  are  at  the  risk  of  the  owners  while  in  the 
warehouses  of  the  company,  unless  the  loss  or  injury  to  them  should 
happen  through  the  negligence  of  the  agents  of  the  company. 

The  receipt  and  notice  were  as  follows :  — 

"Michigan  Central  Railroad  Company, 
"Jackson,  October  11th,  1865. 
"  Received  from   V.    M.   Bostwick,   as   consignor,   the   articles   marked, 
numbered,  and  weighing  as  follows  :  — 

[  Wool  described.  ] 
"  To  be  transported  over  said  railroad  to  the  depot  in  Detroit,  and  there  to 

be  delivered  to ,  agent,  or  order,  upon  the  payment  of  charges  thereon, 

and  subject  to  the  rules  and  regulations  established  by  the  company,  a  part  of 
which  notice  is  given  on  the  back  hereof.     This  receipt  is  not  transferable. 

"  Hastings, 

"  Freight  Agent." 

The  notice  on  the  back  was  thus :  — 

"  The  company  will  not  be  responsible  for  damages  occasioned  by  delays 
from  storms,  accidents,  or  other  causes  .  .  .  and  all  goods  and  merchandise  will 
be  at  the  risk  of  the  owners  thereof  while  in  the  company's  warehouses,  except 
such  loss  or  injury  as  may  arise  from  the  negligence  of  the  agents  of  the  company.'1'' 

Verbal  instructions  were  given  by  Bostwick  that  the  wool  should 
be  sent  from  Detroit  to  Buffalo,  by  lake,  in  steamboats,  which 
instructions  were  embodied  in  a  bill  of  lading  sent  with  the  wool. 
Although  there  were  several  lines  of  transportation  from  Detroit  east- 
ward by  which  the  wool  could  have  been  sent,  there  was  only  one 
transportation  line  propelled  by  steam  on  the  lakes,  and  this  line 
was,  and  had  been  for  some  time,  unable,  in  their  regular  course  of 
business,  to  receive  and  transport  the  freight  which  had  accumulated 


DELIVERY    BY    CARRIER. 

in  large  quantities  at  the  railroad  depot  in  Detroit.  This  accumula- 
tion of  freight  there,  and  the  limited  ability  of  the  line  of  propel 
to  receive  and  transport  it,  were  well  known  to  the  officers  of  the 
road,  but  neither  the  consignor,  consignee,  nor  the  station-master  at 
tfackson  were  informed  on  this  subject.  The  wool  was  carried  over 
the  road  to  the  depot  in  Detroit,  and  remained  there  for  a  period  of 
six  days,  when  it  was  destroyed  by  an  accidental  fire,  not  the  result 
of  any  negligence  on  the  company's  part.  During  all  the  time  the 
wool  was  in  the  depot  it  was  ready  to  be  delivered  for  further  trans- 
portation to  the  carrier  upon  the  route  indicated. 

In  consequence  of  the  loss  the  manufacturing  company  sued  I 
railroad  company.     The  charter  of  the  company,  which  was  plead' <1 
and  offered  in  evidence,  contained  a  section  thus :  — 

"The  said  company  may  charge  and  collect  a  reasonable  sum  for 
storage  upon  all  property  which  shall  have  been  transported  by 
them  upon  delivery  thereof  at  any  of  their  depots,  and  which  shall 
have  remained  at  any  of  their  depots  more  than  four  days;  Provid*  <l, 
that  elsewhere  than  at  their  Detroit  depot,  the  consignee  shall  have 
been  notified  if  known,  either  personally  or  by  notice  left  at  his 
place  of  business  or  residence,  or  by  notice  sent  by  mail,  of  the 
receipt  of  such  propei'ty  at  least  four  days  before  any  storage  shall 
be  charged,  and  at  the  Detroit  depot  such  notice  shall  be  given 
twenty-four  hours  (Sunday  excepted)  before  any  storage  shall  be 
charged;  but  such  storage  may  be  charged  after  the  expiration  of 
said  twenty-four  hours  upon  goods  not  taken  away,  Provided,  that 
in  all  cases  the  said  company  shall  be  responsible  for  goods  on 
deposit  in  any  of  their  depots  awaiting  delivery,  delivery  as  ware- 
housemen, and  not  as  common  carriers." 

The  controversy,  of  course,  was  as  to  the  nature  of  the  bailment 
when  the  fire  took  place.  If  the  railroad  company  were  to  be  con- 
sidered as  warehousemen  at  the  time  the  wool  was  burned,  they  were 
not  liable  in  the  action,  as  the  fire  which  caused  its  destruction  was 
not  the  result  of  any  negligence  on  their  part.  If,  on  the  contrary, 
their  duty  as  carriers  had  not  ceased  at  the  time  of  the  accident,  and 
there  were  no  circumstances  connected  with  the  transaction  which 
lessened  the  rigor  of  the  rule  applicable  to  that  employment,  they 
were  responsible;  carriers  being  substantially  insurers  of  the  prop- 
erty intrusted  to  their  care. 

The  court  was  asked  by  the  railroad  company  to  charge  the  jury 
that  its  liability  was  the  limited  one  of  a  warehouseman,  importing 
only  ordinary  care.  The  court  refused  so  to  charge,  and.  on  the 
contrary,  charged  that  the  railroad  company  were  liable  for  the 
wool  as  common  carriers,  during  its  transportation  from  Jarkson  to 
Detroit,  and  after  its  arrival  there,  for  such  reasonable  time  as. 
according  to  their  usual  course  of  business,  under  the  actual  circum- 
stances in  which  they  held  the  wool,  would  enable  them  to  delivfil 
it  to  the  next  carrier  in  the  line,  but  that  the  manufacturing  com- 


644  CARRIERS    OF   GOODS. 

pany  took  the  risk  of  the  next  carrier  line  not  being  ready  and  will- 
ing to  take  said  wool,  and  submitted  it  to  the  jury  to  say  whether 
under  all  the  circumstances  of  the  case  in  evidence  before  them  suc^ 
reasonable  time  had  elapsed  before  the  occurrence  of  the  fire. 

The  jury,  under  the  instructions  of  the  court,  found  that  the 
railroad  company  were  chargeable  as  carriers,  and  this  writ  of  error 
was  prosecuted  to  reverse  the  decision. 

Mr.  Justice  Davis.  It  is  not  necessary  in  the  state  of  this 
record  to  go  into  the  general  subject  of  the  duty  of  carriers  in  respect 
to  goods  in  their  custody  which  have  arrived  at  their  final  destina- 
tion. Different  views  have  been  entertained  by  different  jurists  of 
what  the  carrier  is  required  to  do  when  the  transit  is  ended,  in  order 
to  terminate  his  liability ;  but  there  is  not  this  difference  of  opinion 
in  relation  to  the  rule  which  is  applicable  while  the  property  is  in 
progress  of  transportation  from  the  place  of  its  receipt  to  the  place 
of  its  destination. 

In  such  cases  it  is  the  duty  of  the  carrier,  in  the  absence  of  any 
special  contract,  to  carry  safely  to  the  end  of  his  line  and  deliver 
to  the  next  carrier  in  the  route  beyond.  This  rule  of  liability  is- 
adopted  generally  by  the  courts  in  this  country,  although  in  England, 
at  the  present  time,  and  in  some  of  the  States  of  the  Union,  the  dis- 
position is  to  treat  the  obligation  of  the  carrier  who  first  receives 
the  goods  as  continuing  throughout  the  entire  route.  It  is  unfortu- 
nate for  the  interests  of  commerce  that  there  is  any  diversity  of 
opinion  on  such  a  subject,  especially  in  this  country;  but  the  rule 
that  holds  the  carrier  only  liable  to  the  extent  of  his  own  route,  and 
for  the  safe  storage  and  delivery  to  the  next  carrier,  is  in  itself  so 
just  and  reasonable  that  we  do  not  hesitate  to  give  it  our  sanction. 
Public  policy,  however,  requires  that  the  rule  should  be  enforced, 
and  will  not  allow  the  carrier  to  escape  responsibility  on  storing  the 
goods  at  the  end  of  his  route,  without  delivery  or  an  attempt  to 
deliver  to  the  connecting  carrier.  If  there  be  a  necessity  for  storage, 
it  will  be  considered  a  mere  accessory  to  the  transportation ,  and  not 
as  changing  the  nature  of  the' bailment.  It  is  very  clear  that  the 
simple  deposit  of  the  goods  by  the  carrier  in  his  depot,  unaccom- 
panied by  any  act  indicating  an  intention  to  renounce  the  obligation 
of  a  carrier,  will  not  change  or  modify  even  his  liability.  It  may 
be  that  circumstances  may  arise  after  the  goods  have  reached  the 
depot  which  would  justify  the  carrier  in  warehousing  them ;  but  if 
he  had  reasonable  grounds  to  anticipate  the  occurrence  of  those 
adverse  circumstances  when  he  received  the  goods,  he  cannot  by 
storing  them  change  his  relation  towards  them. 

Testing  the  case  in  hand  by  these  well-settled  principles,  it  is 
apparent  that  the  plaintiffs  in  error  are  not  relieved  of  their  proper 
responsibility,  unless  through  the  provisions  of  their  charter,  or  by 
the  terms  of  the  receipt  which  was  given  when  they  received  the 
wool.     They  neither  delivered  nor  offered  to  deliver  the  wool  to  the 


DELIVERY    BY    CARRIER. 

propeller  company.  Nor  did  they  do  any  act  manifesting  an  inten- 
tion to  divest  themselves  of  the  character  of  carrier  and  assume  that 
of  forwarder. 

It  is  insisted  that  the  offer  to  deliver  would  have  been  a  u 
act,  because  of  the  inability  of  the  line  of  propellers,   with  their 
means  of  transportation,  to  receive  and  transport  I  sight  which 

had  already  accumulated  at  the  Michigan  Central  Depot  for  shipment 
by  lake.  One  answer  to  this  proposition  is,  that  the  company  had 
no  right  to  assume,  in  discharge  of  its  obligation  to  this  defendant, 
that  an  offer  to  deliver  this  particular  shipment  would  have  been 
met  by  a  refusal  to  receive.  Apart  from  this,  how  can  the  company 
set  up,  by  way  of  defence,  this  limited  ability  of  the  propeller  line 
when  the  officers  of  the  road  knew  of  it  at  the  time  the  contract  of 
carriage  was  entered  into,  and  the  other  party  to  the  contract  had 
no  information  on  the  subject? 

It  is  said,  in  reply  to  this  objection,  that  the  company  could  not 
have  refused  to  receive  the  wool,  having  ample  means  of  carriage, 
although  it  knew  the  line  beyond  Detroit  selected  by  the  shipper 
was  not  at  the  time  in  a  situation  to  receive  and  transport  it.  It  is 
true  the  company  were  obliged  to  carry  for  all  persons,  without 
favor,  in  the  regular  course  of  business,  but  this  obligation  did  not 
dispense  with  a  corresponding  obligation  on  its  part  to  inform  the 
shipper  of  any  unavoidable  circumstances  existing  at  the  termina- 
tion of  its  own  route  in  the  way  of  a  prompt  delivery  to  the  carrier 
next  in  line.  This  is  especially  so  when,  as  in  this  case,  there  were 
other  lines  of  transportation  from  Detroit  eastward  by  which  the 
wool,  without  delay,  could  have  been  forwarded  to  its  place  of  des- 
tination. Had  the  shipper  at  Jackson  been  informed,  at  the  time, 
of  the  serious  hindrances  at  Detroit  to  the  speedy  transit  of  goods 
by  the  lake,  it  is  fair  to  infer,  as  a  reasonable  man,  he  would  have 
given  a  different  direction  to  his  property.  Common  fairness  re- 
quires that  at  least  he  should  have  been  told  of  the  condition  of 
things  there,  and  thus  left  free  to  choose,  if  he  saw  fit,  another  mode 
of  conveyance.  If  this  had  been  done  there  would  be  some  plausi- 
bility in  the  position  that  six  days  was  an  unreasonable  time  to 
require  the  railroad  company  to  hold  the  wool  as  a  common  carrier 
for  delivery.  But  under  the  circumstances  of  this  case  the  company 
had  no  right  to  expect  an  earlier  period  for  delivery,  and  cannot, 
therefore,  complain  of  the  response  of  the  jury  to  the  inquiry  oi 
this  subject  submitted  to  them  by  the  Circuit  Court. 

It  is  earnestly  argued  that  the  plaintiffs  in  error  are  relieved  1 
liability  under  a  provision  contained  in  one  section  of  their  charter,1 
if  not  by  the  rules  of  the  common  law. 

But  it  is  quite  clear,  on  reading  the  whole  section,  that  it  refers 
to  property  which  has  reached   its  final  destination,  and  is  then 

1  Seethe  section,  supra,  pp.  320-321  [643].  —  Rep. 


646  CARRIERS    OF   GOODS. 

awaiting  delivery  to  its  owner.  If  so,  how  can  the  proviso  in  ques- 
tion be  made  to  apply  to  another  and  distinct  class  of  property? 
To  perform  this  office  it  must  act  independently  of  the  rest  of  the 
section,  and  enlarge,  rather  than  limit,  the  operation  of  it.  This  it 
cannot  do,  unless  words  are  used  which  leave  no  doubt  the  legisla- 
ture intended  such  an  effect  to  be  given  to  it. 

It  is  argued,  however,  that  there  is  no  difference  between  goods 
to  be  delivered  to  the  owner  at  their  final  destination,  and  goods 
delivered  to  the  owner,  or  his  agent,  for  further  carriage.  That 
in  both  cases,  as  soon  as  they  are  "  ready  to  be  delivered "  over, 
they  are  "awaiting  delivery."  This  position,  although  plausible, 
is  not  sound.  There  is  a  clear  distinction,  in  our  opinion,  between 
property  in  a  situation  to  be  delivered  over  to  the  consignee  on 
demand,  and  property  on  its  way  to  a  distant  point  to  be  taken 
thence  by  a  connecting  carrier.  In  the  former  case  it  may  be  said 
to  be  awaiting  delivery;  in  the  latter  to  be  awaiting  transporta- 
tion. And  this  distinction  is  recognized  by  the  Supreme  Court  of 
Michigan  in  the  case  of  the  present  plaintiffs  in  error  against  Hale.1 
The  court  in  speaking  on  this  subject  say,  "  that  goods  are  on  deposit 
in  the  depots  of  the  company,  either  awaiting  transportation  or 
awaiting  delivery,  and  that  the  section  (now  under  consideration) 
has  reference  only  to  goods  which  have  been  transported  and  placed 
in  the  company's  depots  for  delivery  to  the  consignee."  To  the 
same  effect  is  a  recent  decision  of  the  Court  of  Appeals  of  New 
York,2  in  a  suit  brought  to  recover  for  the  loss  of  goods  by  the  same 
fire  that  consumed  the  wool  in  this  case,  and  which  were  marked  for 
conveyance  by  the  same  line  of  propellers  on  Lake  Erie. 

Judgment  affirmed. 


MUSCHAMP  v.    THE  LANCASTER  AND  PRESTON 
JUNCTION  R.  CO. 

Exchequer  of  Pleas.     8  M.  &  W.  421.     1841. 

Case.  —  The  declaration  stated,  that,  after  the  passing  of  a  cer- 
tain Act  of  Parliament,  intituled  "An  Act  for  making  and  maintain- 
ing a  Railway  from  the  Town  of  Lancaster  to  the  Town  of  Preston, 
in  the  county  Palatine  of  Lancaster,"  the  defendants  were  the  pro- 
prietors of  a  certain  railway,  to  wit,  etc.,  and  of  certain  engines 
and  carriages  used  thereon;  and  the  plaintiff,  on,  etc.,  caused  to  be 
offered  and  delivered  to  the  defendants,  to  wit,  as  common  carriers, 
and  the  defendants  received  as  such   carriers,  a  certain  box,  and 

1  6  Michigan,  243. 

2  Mills  v.  Michigan  Central  Railroad  Co.,  45  New  York,  626. 


DELIVERY    BY    CARRIER.  647 

divers  goods  and  chattels  contained  therein,  of  the  plaintiff,  to  be 

safely  and  securely  carried  and  conveyed  lor  the  plaintiff  by  the 
defendants,  from  Lancaster  aforesaid,  upon  the  said  railway,  and 
upon  other  railways,  and  to  be  caused  by  the  defendants  to  be  left 
at  a  certain  other  place,  to  wit,  at  a  certain  place  called  the  Whi 
sheaf,  Bartlow,  near  Bakewell,  Derbyshire,  for  the  plaintiff,  for 
certain  reward  to  be  therefore  paid  by  the  plaintiff  to  the  defend- 
ants; yet  the  defendants  contriving,  etc.,  did  not  nor  would  convey 
the  said  box,  etc.,  upon  their  said  railway,  nor  upon  other  railw 
or  cause  the  same  to  be  left  at  the  said  Wheatsheaf,  etc.,  for  the 
plaintiff;  but  through  the  negligence,  carelessness,  etc.,  of  the 
defendants,  the  said  box,  goods,  and  chattels  were  wholly  lost  to 
the  plaintiff. 

Pleas,  first,  not  guilty;  secondly,  that  the  plaintiff  did  not  cause 
to  be  delivered  to  the  defendants,  nor  did  the  defendants  accept  and 
receive  the  said  box,  etc.,  for  the  purpose  and  in  the  manner  and 
form  as  the  plaintiff  has  in  his  declaration  alleged:  —  on  which 
issues  were  joined. 

At  the  trial  before  Rolfe,  B.,  at  the  last  assizes  at  Liverpool,  the 
following  facts  appeared  in  evidence:  —  The  defendants  are  the  pro- 
prietors of  the  Lancaster  and  Preston  Junction  Railway,  and  carry 
on  business  on  their  line  between  Lancaster  and  Preston,  as  common 
carriers.  At  Preston  the  line  joins  the  North  Union  Railway,  which 
afterwards  unites  with  the  Liverpool  and  Manchester  Railway  at 
Parkside,  and  that  with  the  Grand  Junction  Railway.  The  plain- 
tiff, a  stone-mason  living  at  Lancaster,  had  gone  into  Derbyshire  in 
search  of  work,  leaving  his  box  of  tools  to  be  sent  after  him.  Hi- 
mother  accordingly  took  the  box  to  the  railway  station  at  Lancaster, 
directed  to  the  plaintiff ,  "  to  be  left  at  the  Wheatsheaf,  Bartlow, 
near  Bakewell,  Derbyshire"  (a  place  about  eight  miles  wide  of  the 
Birmingham  and  Derby  Junction  Railway),  and  requested  the  clerk 
at  the  station  to  book  it.  In  answer  to  her  inquiries,  he  told  her 
that  the  box  would  go  in  two  or  three  days;  and  on  her  asking 
whether  it  would  go  sooner  if  the  carriage  was  paid  in  advance,  he 
inquired  whether  anyone  was  going  with  it;  on  her  answering  in 
the  negative,  and  that  the  person  for  whom  it  was  intended  would 
be  ready  at  the  other  end  to  receive  it,  he  said  the  carriage  had 
better  be  paid  for  by  that  person  on  receipt  of  it.  It  appeared 
that  the  box  arrived  safely  at  Preston,  but  was  lost  alter  it  was 
despatched  from  thence  by  the  North  Union  Railway.  CTpon  these 
facts  the  learned  judge  stated  to  the  jury,  in  summing  up.  that 
where  a  common  carrier  takes  into  his  care  a  parcel  directed 
particular  place,  and  does  not  by  positive  agreement  limit  his 
responsibility  to  a  part  only  of  the  distance,  that  is  pr'ano  fade  evi- 
dence of  an  undertaking  on  his  part  to  carry  th,.  parcel  to  the  place 
to  which  it  is  directed;  and  the  same  rule  applied,  although 
place  were  beyond  the  limits  within  which  he  in  general  pi 


648  CAKKIERS    OF   GOODS. 

to  carry  on  his  trade  of  a  carrier.  The  jury  found  a  verdict  for  the 
plaintiff,  damages  £16  Is. 

In  Easter  Term,  Cresswell  obtained  a  rule  nisi  for  a  new  trial,  on 
the  ground  of  misdirection. 

Martin  now  showed  cause,  and  contended  that  there  was  no  mis- 
direction; that  there  was  abundant  evidence  for  the  jury  of  an 
undertaking  by  the  defendants,  through  their  agent,  to  carry  the 
box  and  its  contents  to  the  place  of  its  ultimate  destination ;  that  if 
the  carriage  had  been  paid  in  advance,  according  to  the  offer  made 
by  the  plaintiff's  mother,  the  sum  demanded  would  clearly  have  been 
the  carriage  for  the  whole  distance;  and  that  to  suppose  as  many 
different  contracts  as  there  were  carriers  on  a  continuous  line  of  rail- 
way, would  be  against  all  principle  and  convenience.  — The  court 
then  called  on 

Cressivell,  Baines,  and  Burrell,  in  support  of  the  rule.  This  is 
not  the  case  of  a  conveyance  travelling  throughout  a  continuous  line, 
like  a  coach,  for  instance,  which  professes  to  run  from  London  to 
York ;  in  such  a  case  parties  are  hot  bound  to  look  out  for  the  par- 
ticular proprietors  interested  in  the  different  parts  of  the  line.  But 
there  it  is  held  out  to  the  public  as  one  line;  this  is  the  case  of  a 
company  known  as  the  Lancaster  and  Preston  Junction  Railway, 
and  holding  themselves  out  to  the  world  as  the  proprietors  of  and 
carriers  upon  that  distinct  line  of  railway  only.  To  hold  them 
liable  for  the  loss  of  a  parcel  beyond  the  limits  of  their  own  line 
would  therefore  be  very  unjust.  Suppose  the  case  of  a  known  coach 
from  London  to  Stamford,  and  a  party  delivers  to  the  book-keeper 
a  parcel  directed  to  York,  does  that  prove  a  contract  to  carry  it  to 
York?  [Lord  Abinger,  C.  B.  What  would  be  the  undertaking  of 
the  carrier  in  that  case?]  To  carry  to  Stamford,  and  forward  thence 
to  York.  Parties  must  be  assumed  to  contract  in  reference  to  the 
known  mode  in  which  the  carrier  carries  on  his  business.  Suppose 
it  had  been  alleged  in  this  case  that  the  defendants  were  common 
carriers  from  Lancaster  to  Derby,  and  that  had  been  traversed; 
would  evidence  of  the  kind  given  on  the  part  of  the  plaintiff  have 
proved  that  they  were?  If  the  defendants  are  held  liable  in  this 
case,  it  would  follow,  that  a  carrier  who  -professed  on  his  part  to 
carry  parcels  one  stage  only  from  London,  would  be  liable  for  the 
loss  of  a  parcel  at  any  place  between  London  and  the  Land's  End; 
or  the  owners  of  a  steam-vessel  plying  between  Liverpool  and 
Belfast,  by  receiving  a  box  directed  to  an  inland  town  in  Ireland, 
would  be  responsible  for  its  safe  delivery  at  that  place.  If  it  be  so, 
the  same  principle  must  hold  as  to  imputed  negligence  to  persons  as 
to  goods.  Now,  suppose  a  passenger  booked  at  Lancaster  for  Lon- 
don, and  injured  on  the  North  Union  Railway:  could  the  proprie- 
tors of  the  Lancaster  and  Preston  line  be  held  responsible?  The 
true  construction  of  the  defendant's  contract  is,  that  they  engage  to 
carry  the  goods  safely  as  far  as  Preston — i.e.,  as  far  as  they  hold 


DELIVERY    BY    CARRIER. 

themselves  out,  and  are  empowered  by  their  Act  of  Parliam 

trade,  as  carriers — and  then  to  put  them  in  a  course  of  carri 
onward,  by  transferring  them  to  another  carrier,  so  as  to  give 
owner,  in  the  event  of  their  loss,  a  right  of  action  against  the  new 
bailees.  Garside  v.  Trent  and  Mersey  Navigation  Company,  1  T.  I:. 
581.  [Lord  Abingek,  C.  B.  The  defendants  refuse  to  receive 
the  money  for  the  carriage  at  the  time:  does  that  not.  show  that 
they  treat  the  carriers  forward  as  their  agents,  from  whom  they  are 
to  get  their  remuneration?]  A  contrary  inference  rather  arises, — 
that  they  could  not  tell  what  the  whole  amount  of  the  carriage  would 
be,  and  therefore  declined  to  receive  it.  If  this  be  in  lnw  a  contract 
to  carry  the  whole  distance,  it  must  be  so  also,  although  the  other 
party  be  fully  cognizant  of  the  terms  on  which  the  defendants  carry 
on  their  business.  [Lord  Abinger,  C.  B.  Do  you  say  the  succes- 
sive carriers  are  agents  of  the  original  customer?]  Yes,  if  the  suc- 
cessive companies  be  known  to  him.  [Rolfe,  B.  How  is  h< 
discover  on  which  line  the  goods  were  lost?]  In  Upston  v.  Shirk, 
2  Car.  &  P.  598,  the  name  of  the  defendant  was  over  the  door  of  a 
booking-house  for  coaches  and  wagons  in  Piccadilly,  with  the  wo  ids 
"Conveyances  to  all  parts  of  the  world,"  followed  by  a  list  of  places, 
amongst  which  was  Windsor:  yet  it  was  held,  that  proof  of  the 
booking  at  that  office  of  a  box  directed  to  Windsor,  which  did  not 
reach  its  destination,  was  not  sufficient  to  make  the  defendant 
responsible  for  its  loss.  So,  in  Gilbert  v.  Dale,  5  Ad.  &  Ell.  543, 
1  Nev.  &  P.  22,  which  was  an  action  brought  for  negligence  in  the 
loss  of  goods,  against  the  proprietor  of  a  general  booking-office  for 
the  transmission  of  parcels  by  coach,  it  was  held  insufficient  to  prove 
that  the  goods  never  reached  their  destination.  Coleridge,  J.,  there 
says,  "Suppose  goods  were  left  with  carrier,  to  be  taken  by  him  to 
York,  and  from  thence  forwarded  to  Edinburgh,  would  it  he  suffi- 
cient,  in  an  action  against  him  for  negligence,  to  show  that  the 
goods  did  not  reach  Edinburgh?"  The  same  hardship  which  is 
recited  in  the  preamble  to  the  Carriers'  Act,  1  Will.  4,  c.  68,  from 
the  great  increase  of  the  responsibility  and  risk  of  common  carriers, 
will  occur  again,  if  a  carrier  is  to  be  held  liable  under  such  circum- 
stances as  these. 

Lord  Abinger,  C.  B.  The  simple  question  in  this  case  is, 
whether  the  learned  judge  misdirected  the  jury  in  telling  them  that 
if  the  case  were  stripped  of  all  other  circumstances  beyond  the  mere 
fact  of  knowledge  by  the  party  that  the  defendants  were  carriers 
only  from  Lancaster  to  Preston,  and  if,  under  such  circumstam 
they  accepted  a  parcel  to  be  carried  on  to  a  more  distant  place,  they 
are  liable  for  the  loss  of  it,  this  being  evidence  whence  the  jury 
might  infer  that  they  undertook  to  carry  it  in  safety  to  that  place. 
I  think  that  in  this  proposition  there  was  no  misdirection.  It  is 
admitted  by  the  defendants'  counsel  that  the  defendants  contract 
to  do  something  more  with  the  parcel  than  merely  to  carry  it  to 


650  CARRIERS    OF   GOODS. 

Preston;  they  say  the  engagement  is  to  carry  to  Preston,  and  there 
to  deliver  it  to  an  agent,  who  is  to  carry  it  further,  who  is  afterwards 
to  be  replaced  by  another,  and  so  on  until  the  end  of  the  journey. 
Now  that  is  a  very  elaborate  kind  of  contract;  it  is  in  substance 
giving  to  the  carriers  a  general  power,  along  the  whole  line  of  route, 
to  make  at  their  pleasure  fresh  contracts,  which  shall  be  binding 
upon  the  principal  who  employed  them.  But  if,  as  admitted  on 
both  sides,  it  is  clear  that  something  more  was  meant  to  be  done  by 
the  defendants  than  carry  as  far  as  Preston,  is  it  not  for  the  jury  to 
say  what  is  the  contract,  and  hoiv  imich  more  was  undertaken  to  be 
done  by  them?  Now  it  certainly  might  be  true  that  the  contract 
between  these  parties  was  such  as  that  suggested  by  the  counsel  for 
the  defendants ;  but  other  views  of  the  case  may  be  suggested  quite 
as  probable;  such,  for  instance,  as  that  these  railway  companies, 
though  separate  in  themselves,  are  in  the  habit,  for  their  own  advan- 
tage, of  making  contracts,  of  which  this  was  one,  to  convey  goods 
along  the  whole  line,  to  the  ultimate  terminus,  each  of  them  being 
agents  of  the  other  to  carry  them  forward,  and  each  receiving  their 
share  of  the  profits  from  the  last.  The  fact  that,  according  to  the 
agreement  proved,  the  carriage  was  to  be  paid  at  the  end  of  the 
journey,  rather  confirms  the  notion  that  the  persons  who  were  to 
carry  the  goods  from  Preston  to  their  final  destination  were  under 
the  control  of  the  defendants,  who  consequently  exercised  some 
influence  and  agency  beyond  the  immediate  terminus  of  their  own 
railway.  Is  it  not  then  a  question  for  the  jury  to  say  what  the 
nature  of  this  contract  was ;  and  is  it  not  as  reasonable  an  inference 
for  them  to  draw,  that  the  whole  was  one  contract,  as  the  contrary? 
I  hardly  think  they  would  be  likely  to  infer  so  elaborate  a  contract 
as  that  which  the  defendants'  counsel  suggests;  namely,  that  as  the 
line  of  the  defendants'  railway  terminates  at  Preston,  it  is  to  be 
presumed  that  the  plaintiff,  who  intrusted  the  goods  to  them,  made 
it  part  of  his  bargain  that  they  should  employ  for  him  a  fresh  agent 
both  at  that  place  and  at  every  subsequent  change  of  railway  or  con- 
veyance, and  on  each  shifting  of  the  goods  give  such  a  document 
to  the  new  agent  as  should  render  him  responsible.  SupjDOse  the 
owner  of  goods  sent  under  such  circumstances,  when  he  finds  they 
do  not  come  to  hand,  comes  to  the  railway  office  and  makes  a  com- 
plaint, then,  if  the  defendants'  argument  in  this  case  be  well 
founded,  unless  the  railway  company  refuses  to  supply  him  with 
the  name  of  the  new  agent,  they  break  their  contract.  It  is  true 
that,  practically,  it  might  make  no  great  difference  to  the  proprietor 
of  the  goods  which  was  the  real  contract,  if  their  not  immediately 
furnishing  him  with  the  name  would  entitle  him  to  bring  an  action 
against  them.  But  the  question  is,  why  should  the  jury  infer  one 
of  these  contracts  rather  than  the  other?  which  of  the  two  is  the 
most  natural,  the  most  usual,  the  most  probable?  Besides,  the  car- 
riage-money being  in  this  case  one  undivided  sum  rather  supports 


DELIVERY   BY   CARRIE  It. 


651 


the  inference,  that  although  these  carriers  carry  only  a  certain  dis- 
tance with  their  own  vehicles,  they  make  subordinate  contracts  with 
the   other   carriers,  and   are   partners    inter  se  as  to  the  carriage- 
money, —  a  fact  of  which  the  owner  of  the  goods  could  know  nothing- 
as  he  only  pays  the  one  entire  sum  at  the  end  of  the  journey,  which 
they  afterwards  divide  as  they  please.     Not  only,  therefore,  is  there 
some  evidence  of  this  being  the  nature  of  the  contract ,  but  it  is  I 
most  likely  contract  under  the  circumstances;  for  it  is  admitted  that 
the  defendants  undertook  to  do  more  than  simply  to  carry  the  goods 
from  Lancaster  to  Preston.     The  whole  matter  is  therefore  a  qui 
tion  for  the  jury,  to  determine  whether  the  contract  was  on  the  evi- 
dence before  them.     With   respect  to  the  case  referred  to,  of  the 
booking-office  in  London,  it  only  goes  to   show  that  when  persons 
take  charge  of  parcels  at  such  an  office  they  merely  make  themselves 
agents  to  book  for  the  stage-coaches.     You  go  to  the  office  and  book 
a  parcel;  the  effect  of  this  is  to  make  the  booker  your  agent,  instead 
of  going  to  the  coach-office  yourself;  and  so  that  he  sends  the  parcel 
to  the  proper  coach-office,  and  once  delivers   it  there,  he  has  dis- 
charged himself;  he  has   nothing  to    do  with  the   carriage  of  the 
goods.     In  cases  like  the   present,  particular  circumstances   might 
no  doubt  be  adduced  to  rebut  the  inference  which,  prima  facie,  must 
be  made,  of  the  defendants  having  undertaken  to  carry  the  goods 
the  whole  way.     The  taking  charge  of  the  parcel  is  not  put  as  con- 
clusive evidence  of  the  contract  sued  on  by  the  plaintiff;  it  is  only 
prima  facie  evidence  of  it;  and  it  is  useful  and  reasonable  for  the 
benefit  of  the  public  that  it  should  be  so  considered.     It  is  better 
that  those  who  undertake  the  carriage  of  parcels,  for  their  mutual 
benefit,  should  arrange  matters  of  this  kind  inter  se,  and  should  be 
taken  each  to  have  made  the  others  their  agents  to  carry  forward. 

Gurney,  B.  I  think  there  is  no  misdirection  in  the  case,  and 
that  the  jury  might  fairly  infer  that  the  contract  was  such  as  was 
stated  by  the  learned  judge.  If  the  goods  were  to  be  carried  only 
in  the  narrow  sense  contended  for  by  the  defendants,  then,  if  the 
place  of  their  destination  were  but  three  miles  be)Tond  Preston,  and 
they  were  lost  on  the  other  side  of  the  railway  terminus,  the  defend- 
ants are  not  to  be  liable,  but  the  plaintiff  is  to  find  out  somebody  or 
other  who  is  to  be  liable  in  respect  of  the  carriage  for  those  three 
miles. 

Rolfe,  B.  I  am  of  the  same  opinion,  and  think  the  construc- 
tion we  are  putting  on  the  agreement  is  not  only  consistent  with 
law,  but  is  the  only  one  consistent  with  common-sense  and  the  con- 
venience of  mankind.  What  I  told  the  jury  was  only  this,  that  if 
a  party  brings  a  parcel  to  a  railway  station,  which  in  this  respect  is 
just  the  same  as  a  coach-office,  known  at  the  time  that  the  company 
only  carry  to  a  particular  place,  and  if  the  raihray  company  receive 
and  book  it  to  another  place  to  which  it  is  directed,  prima  facie  they 
undertake  to  carry  it  to  that  other  place.     That  was  my  view  at  the 


652  CARRIERS   OF   GOODS. 

trial,  and  nothing  has  occurred  to  alter  my  opinion.  As  to  the  case 
which  has  been  put,  of  a  passenger  injured  on  the  line  of  railway 
beyond  that  where  he  was  originally  booked,  I  suppose  it  is  put  as 
a  reductio  ad  absurdum;  but  I  do  not  see  the  absurdity.  If  I  book 
my  place  at  Euston  Square,  and  pay  to  be  carried  to  York,  and  am 
injured  by  negligence  of  somebody  between  Euston  Square  and 
York,  I  do  not  know  why  I  am  not  to  have  my  remedy  against  the 
party  who  so  contracted  to  carry  me  to  York.  But,  at  all  events,  in 
the  case  of  a  parcel,  any  other  construction  would  open  the  door  to 
incalculable  inconveniences.  You  book  a  parcel,  and  on  its  being 
lost,  you  are  told  that  the  carrier  is  responsible  only  for  one  portion 
of  the  line  of  road.  What  would  be  the  answer  of  the  owner  of  the 
goods?  —  "I  know  that  I  booked  that  parcel  at  the  Golden  Cross  for 
Liverpool,  and  my  contract  with  the  carrier  was  to  take  it  to  Liver- 
pool." All  convenience  is  one  way,  and  there  is  no  authority  the 
other  way.  Rule  discharged.1 


NUTTING   v.    CONNECTICUT   RIVER  R.    CO. 

1  Gray  (Mass.),  502.     1854. 

Action  of  contract  to  recover  the  value  of  two  of  the  boxes 
described  in  the  following  receipt,  signed  by  the  defendants'  agent: 
"Northampton,  Mass.,  Feb.  27th,  1851.  Received  of  E.  Nutting, 
for  transportation  to  New  York,  9  boxes  planes,  marked  R.  &  F.  21 
Piatt  St.,  New  York;  4  boxes  planes  and  handles,  marked  G.  T. 
Hewlett,  146  Bowery  Street,  New  York. 

"Fred  W.  Clarke." 

The  following  facts  were  agreed  by  the  parties:  All  the  boxes 
named  in  this  receipt  were  delivered  by  the  defendants,  within  a 
reasonable  time,  at  Springfield,  the  southern  terminus  of  their  road, 

1  The  mere  acceptance  of  goods  by  a  common  carrier  marked  to  a  designation 
beyond  the  terminus  of  its  line  as  a  matter  of  law  imports  no  absolute  undertaking 
upon  the  part  of  the  carrier  beyond  the  end  of  its  road,  but  is  a  matter  of  evidence  to 
be  submitted  to  the  jury,  from  which,  in  connection  with  other  evidence  produced, 
they  are  to  determine,  as  a  question  of  fact,  the  real  engagement  entered  into. 

This  position  was  very  ably  maintained  in  a  recent  and  elaborate  opinion  of  the 
Supreme  Court  of  "New  Hampshire,  reviewing  almost  the  whole  current  of  decisions 
from  Muschamp  v.  The  Lancaster  Railway  Co.,  8  M.  &  W.  421,  down  to  the  present 
period.  See  Gray  v.  Jackson,  51  N.  H.  9.  The  question  is  not  an  open  one  in  this 
State.  In  Angle  v.  The  M.  M.  R'y  Co.,  9  Iowa,  487,  the  rule  was  settled  as  it  is 
understood  to  exist  in  England,  and  it  was  held  that  the  acceptance  by  a  carrier  of 
goods  marked  to  a  destination  beyond  the  terminus  of  its  road,  creates  a  prima  facie 
liability  to  transport  to  and  deliver  at  that  point,  which  may  be  modified  by  proof  of  a 
different  usage  known  to  the  shipper  at  the  time  of  making  the  consignment.  Per 
Day,  J.,  in  Mulligan  v.  Illinois  Central  R.  Co.,  36  Iowa,  181. 


DELIVERY   BY   CARRIER.  553 

to  the  New  Haven,  Hartford,  and  Springfield  Railroad  Company, 
with  whose  road  the  defendants'  road  there  connects.  The  New 
Haven,  Hartford,  and  Springfield  Railroad  extends  from  Springfield 
to  New  Haven,  and  there  connects  with  the  New  York  and  New- 
Haven  Railroad,  which  extends  to  the  city  of  New  York.  The 
defendants  took  a  receipt  for  these  boxes  from  the  New  Haven, 
Hartford,  and  Springfield  Railroad  Company;  and  all  the  boxes  were 
duly  delivered  in  New  York,  except  two,  which  were  lost  between 
Springfield  and  New  Haven. 

It  is  the  practice  of  the  defendants,  who  are  common  carriers,  to 
convey  goods,  received  at  places  on  the  line  of  their  road  for  trans- 
portation to  New  York,  in  their  own  cars  to  Springfield,  and  there 
to  deliver  them  to  the  New  Haven,  Hartford,  and  Springfield  Kail- 
road  Company,  by  whose  agents  the  goods  are  overhauled  and 
checked.  Such  goods  are  sometimes  carried  over  the  New  Haven, 
Hartford,  and  Springfield  Railroad  without  change  of  cars,  and  are 
sometimes  shifted  into  the  cars  of  that  company.  But  the  defend- 
ants receive  pay  only  as  far  as  Springfield.  "When  goods  are  brought 
from  New  York  to  places  on  the  line  of  the  defendants'  road,  they 
are  brought  either  in  the  freight  cars  of  the  defendants,  or  of  one 
of  the  two  corporations  above  mentioned,  or  of  the  Vermont  Valley 
Railroad  Company,  whose  road  extends  from  the  northern  terminus 
of  the  defendants'  road  into  the  State  of  Vermont. 

The  parties  agreed  that  if  the  defendants  were  not  liable  to  the 
plaintiff  judgment  should  be  entered  for  them ;  otherwise,  that  the 
plaintiff  should  have  judgment  for  $25.50,  the  value  of  the  lost 
boxes  and  their  contents. 

Metcalf,  J.  On  the  facts  of  this  case,  we  are  of  opinion  that 
there  must  be  judgment  for  the  defendants.  Springfield  is  the 
southern  terminus  of  their  road;  and  no  connection  in  business  is 
shown  between  them  and  any  other  railroad  company.  When  they 
carry  goods  that  are  destined  beyond  that  terminus,  they  take  pay 
only  for  the  transportation  over  their  own  road.  What,  then,  is  the 
obligation  imposed  on  them  by  law,  in  the  absence  of  any  special 
contract  by  them,  when  they  receive  goods  at  their  depot  in  North- 
ampton, which  are  marked  with  the  names  of  the  consignees  in  the 
city  of  New  York?  In  our  judgment  that  obligation  is  nothing 
more  than  to  transport  the  goods  safely  to  the  end  of  their  road,  and 
there  deliver  them  to  the  proper  carriers,  to  be  forwarded  towards 
their  ultimate  destination.  This  the  defendants  did,  in  the  present 
case,  and  in  so  doing  performed  their  lull  legal  duty.  If  the} 
be  held  liable  for  a  loss  that  happens  on  any  railroad  besides  1 
own,  we  know  not  what  is  the  limit  of  their  liability.  II  they  are 
liable  in  this  case,  we  do  not  see  why  they  would  not  also  be  liable 
if  the  boxes  had  been  marked  for  consignees  in  Chicago,  ami  had 
been  lost  between  that  place  and  Detroit,  on  a  road  with  which 
had  no  more  connection  than  they  have  with  any  railway  in  Eui 


654  CARRIERS   OF   GOODS. 

But  the  plaintiff  seeks  to  charge  the  defendants  on  the  receipt 
given  by  Clarke,  their  agent,  as  on  a  special  contract  that  the  boxes 
should  be  safely  carried  the  whole  distance  between  Northampton 
and  New  York.  We  cannot  so  construe  the  receipt.  It  merely 
states  the  fact  that  the  boxes  had  been  received  "  for  transportation 
to  New  York."  And  the  plaintiff  might  have  proved  that  fact,  with 
the  same  legal  consequences  to  the  defendants,  by  oral  testimony, 
if  he  had  not  taken  a  receipt.  That  receipt,  in  our  opinion,  imposed 
on  the  defendants  no  further  obligation  than  the  law  imposed 
without  it. 

The  plaintiff's  counsel  relied  on  the  case  of  Muschamp  v.  Lancas- 
ter &  Preston  Junction  Railway,  8  M.  &W.421  [646],  in  which  it  was 
decided  by  the  Court  of  Exchequer,  that  when  a  railway  company 
take  into  their  care  a  parcel  directed  to  a  particular  place,  and  do 
not  by  positive  agreement  limit  their  responsibility  to  a  part  only 
of  the  distance,  that  is  prima  facie  evidence  of  an  undertaking  to 
carry  the  parcel  to  the  place  to  which  it  is  directed,  although  that 
place  be  beyond  the  limits  within  which  the  company,  in  general, 
profess  to  carry  on  their  business  of  carriers.  And  two  justices  of 
the  Queen's  Bench  subsequently  made  a  like  decision.  Watson  v. 
Ambergate,  Nottingham  &  Boston  Railway,  3  Eng.  Law  &  Eq.  R. 
497.  We  cannot  concur  in  that  view  of  the  law;  and  we  are  sus- 
tained, in  our  dissent  from  it,  by  the  Court  of  Errors  in  New  York, 
and  by  the  Supreme  Courts  of  Vermont  and  Connecticut.  Van 
Santvoord  v.  St.  John,  6  Hill,  157.  Farmers'  &  Mechanics'  Bank 
v.  Champlain  Transportation  Company,  18  Verm.  140,  and  23  Verm. 
209.  Hood  v.  New  York  &  New  Haven  Railroad,  22  Conn.  1.  In 
these  cases,  the  decision  in  Weed  v.  Saratoga  &  Schenectady  Rail- 
road, 19  Wend.  534  (which  was  cited  by  the  present  plaintiff's  coun- 
sel), was  said  to  be  distinguishable  from  such  a  case  as  this,  and  to 
be  reconcilable  with  the  rule  that  each  carrier  is  bound  only  to  the 
end  of  his  route,  unless  he  makes  a  special  contract  that  binds  him 
further. 

Judgment  for  the  defendants.1 


GALVESTON,  H.  &  S.  A.  R.  CO.  v.  WALLACE. 

223  U.  S.  481;  32  S.  C.  Rep.  205.     1912. 

Mr.  Justice  Lamar.  In  both  these  cases  the  plaintiff  in  error  was 
held  liable  as  "  initial  carrier  "  for  failure  to  deliver  mohair  shipped 
from  points  in  Texas  to  the  consignee  in  Lowell.  The  company 
denied  liability  on  the  ground  that  under  the  contract  expressed  in 

i  Ace.  :  Myrick  v.  Michigan  Central  R.  Co.,  107  U.  S.  102. 


DELIVERY    BY    CARRIER. 

the  bills  of  lading  its  obligation  and  liability  ceased  when  it  duly 
and  safely  delivered  the  goods  to  the  next  carrier.  It  excej 
various  rulings  of  the  trial  court  by  which  it  was  prevented  from 
proving  that  it  had  fully  complied  with  its  contract;  had  duly 
delivered  the  mohair,  at  Galveston,  to  the  first  connecting  carrii 
which  delivered  it,  at  New  York,  to  the  next  carrier,  which,  in  turn, 
delivered  it  to  the  Boston  &  Maine  Railroad.  Neither  the  pleadings 
nor  proof  showed  what  this  company  did  with  the  mohair  nor  the 
cause  of  its  non-delivery,  if  indeed  it  was  not  delivered.  For  there 
was  some  evidence  tending  to  show  that  this  mohair  might  have  ln-en 
among  other  sacks,  the  marks  of  which  had  been  destroyed,  and  were 
still  held  by  the  consignee  awaiting  identification.  This  contention, 
however,  was  found  against  the  carrier,  and  it  was  held  liable  to  the 
plaintiffs.     117  S.  W.  Rep.  169,  170. 

The  question  as  to  whether  the  plaintiff  was  entitled  to  recover  the 
value  of  the  goods  at  Lowell  or,  as  provided  in  the  bill  of  lading,  at 
the  point  of  shipment,  is  suggested  in  one  of  the  briefs.  No  such 
issue  was  made  in  the  lower  court,  nor  is  it  referred  to  in  any  of  the 
many  assignments  of  error  involving  the  construction  and  constitu- 
tionality of  the  Carmack  amendment  to  the  Hepburn  Act  of  1906,  pro- 
viding that  where  goods  are  received  for  shipment  in  interstate  com. 
merce  the  initial  carrier  shall  be  liable  for  damages  caused  by  itself 
or  connecting  carriers,  and  making  void  any  contract  of  exemption 
against  such  liability.     (34  Stat.  584.) 

1.  The  jurisdiction  of  the  state  court  was  attacked,  first,  on  the 
ground  that  §  9  of  the  original  act  of  1887  provided  that  persons 
damaged  by  a  violation  of  the  statute  "might  make  complaint  before 
the  commission  ...  or  in  any  District  or  Circuit  Court  of  the  United 
States."     24  Stat.  379. 

Statutes  have  no  extra-territorial  operation,  and  the  courts  of  one 
government  cannot  enforce  the  penal  laws  of  another.     At  one  time 
there  was  some  question  both  as  to  the  duty  and  power  to  try  civil 
cases  arising  solely  under  the  statutes  of  another  State.     But  it  is 
now  recognized  that  the  jurisdiction  of  state  courts  extends  to  the 
hearing  and  determination  of  any  civil  and  transitory  cause  of  action 
created  by  a  foreign  statute,  provided  it  is  not  of  a  character  opposed 
to  the  public  policy  of  the  State  in  which  the  suit  is  brought.     Wh< 
the  statute  creating  the  right  provides   an  exclusive  remedy,  to 
enforced    in   a  particular    way,   or    before   a   special    tribunal,    the 
aggrieved  party  will  be  left  to  the  remedy  given  by  the  statute  which 
created  the  right.     But  jurisdiction  is  not  defeated  by  implii 
And,  considering  the   relation   between   the   Federal   and   the 
Government,  there  is  no  presumption  that  Congress  intended  to  p 
vent  state  courts  from  exercising  the  general  jurisdiction  already  pos 
sessed  by  them,  and  under  which  they  had  the  power  to  hear  and 
determine  causes  of  action  created  by  Federal  statute.     Robb.  v.  Con- 
nolly, 111  U.  S.  624,  637. 


656  CARRIERS    OF    GOODS. 

On  the  contrary,  the  absence  of  such  provision  would  be  construed 
as  recognizing  that  where  the  cause  of  action  was  not  penal,  but  civil 
and  transitory,  it  was  to  be  subject  to  the  principles  governing  that 
class  of  cases,  and  might  be  asserted  in  a  state  court  as  well  as  in 
those  of  the  United  States.  This  presumption  would  be  strengthened 
as  to  a  statute  like  this  passed,  not  only  for  the  purpose  of  giving  a 
right,  but  of  affording  a  convenient  remedy. 

2.  The  question  as  to  the  constitutionality  of  the  Carmack  amend- 
ment, though  ably  and  elaborately  argued,  is  out  of  the  case,  having 
been  decided  adversely  to  the  contention  of  the  plaintiff  in  Atlantic 
Coast  Line  R.  R.  v.  Riverside  Mills,  219  U.  S.  186,  after  the  present 
suit  was  instituted. 

•       •••••       •••••• 

Under  the  Carmack  amendment,  as  already  construed  in  the  River- 
side Mills  Case,  wherever  the  carrier  voluntarily  accepts  goods  for 
shipment  to  a  point  on  another  line  in  another  state,  it  is  conclusively 
treated  as  having  made  a  through  contract.  It  thereby  elected  to  treat 
the  connecting  carriers  as  its  agents,  for  all  purposes  of  transportation 
and  delivery.  This  case,  then,  must  be  treated  as  though  the  point  of 
destination  was  on  its  own  line,  and  is  to  be  governed  by  the  same 
rules  of  pleading,  practice  and  presumption  as  would  have  applied  if 
the  shipment  had  been  between  stations  in  different  States,  but  both 
on  the  company's  railroad.  Thus  considered,  when  the  holders  of  the 
bills  of  lading  proved  the  goods  had  not  been  delivered  to  the  con- 
signee, the  presumption  arose  that  they  had  been  lost  by  reason  of  the 
negligence  of  the  carrier  or  its  agents.  The  burden  of  proof  that  the 
loss  resulted  from  some  cause  for  which  the  initial  carrier  was  not  re- 
sponsible in  law  or  by  contract  was  then  cast  upon  the  carrier.  The 
plaintiffs  were  not  obliged  both  to  prove  their  case  and  to  disprove 
the  existence  of  a  defense.  The  carrier  and  its  agents,  having  received 
possession  of  the  goods,  were  charged  with  the  duty  of  delivering 
them,  or  explaining  why  that  had  not  been  done.  This  must  be  so, 
because  carriers  not  only  have  better  means,  but  often  the  only  means, 
of  making  such  proof.  If  the  failure  to  deliver  was  due  to  the  act  of 
God,  the  public  enemy  or  some  cause  against  which  it  might  lawfully 
contract,  it  was  for  the  carrier  to  bring  itself  within  such  exception. 
In  the  absence  of  such  proof,  the  plaintiffs  were  entitled  to  recover, 
and  the  judgment  is  Affirmed. 


THE   ATCHISON,   TOPEKA   &   SANTA  FE*    R.   CO.   v. 

ROACH. 

35  Kan.  740.     1886. 

Action  brought  by  Roach  against  The  Railroad  Company,  to 
recover  the  value  of  certain  baggage.  Trial  at  the  September  Term, 
1884,  and  judgment  for  plaintiff  for  $227.32.     The  defendant  com- 


DELIVERY    BY    CARRIER. 

pany  brings  the  case  to  this  court.     The  opinion  states  the  mate 
facts. 

Johnston,  J.  This  action  was  brought  by  Michael  Roach  against 
the  Atchison,  Topeka  &  Santa  Fe  Railroad  Company,  to  recover  for 
baggage  alleged  to  have  been  lost  and  injured  while  in  transit  from 
New  York  City  to  Hutchinson,  Kansas.  A  verdict  was  given  in 
favor  of  Roach  for  $227.32,  and  judgment  rendered  accordingly. 
The  railroad  company  brings  the  case  here,  and  complains  of  the 
charge  of  the  court  and  of  the  insufficiency  of  the  evidence.  The 
essential  facts  of  the  case  maybe  briefly  stated:  On  February  2s, 
1881,  Roach  purchased  eight  coupon  tickets  for  the  passage  of  him- 
self and  family  from  the  city  of  New  York  to  Hutchinson,  Kansas, 
over  the  New  York,  Lake  Erie  &  Western  Railroad,  Grand  Trunk 
Railway,  Michigan  Central  Railroad,  Chicago,  Burlington  &  Quincy 
Railroad,  Hannibal  &  St.  Joseph  Railroad,  and  Atchison,  Topeka 
&  Santa  Fe  Railroad.  The  tickets  were  purchased  from  one  Henry 
Opperman,  who  had  an  office  in  New  York,  and  who  at  the  same 
time  caused  several  pieces  of  baggage  to  be  checked  through  to 
Hutchinson,  using  checks  on  which  the  names  of  the  roads  men- 
tioned were  stamped.  As  there  was  more  baggage  than  could  be 
carried  on  the  tickets  purchased,  Roach  was  required  to  and  did  pay 
$62.15  for  extra  baggage,  and  Opperman  gave  him  duplicates  of 
the  checks,  which  he  retained.  The  defendant  in  error  and  his 
family  made  the  journey  over  the  roads  mentioned,  and  the  tickets 
were  honored  and  accepted  for  their  passage,  and  the  servants  of 
the  several  companies  detached  the  coupons  or  portions  of  the  ticket 
that  represented  the  passage-money  over  the  different  roads.  When 
the  passengers  reached  Hutchinson  application  was  made  for  the 
baggage,  and  it  was  found  that  some  of  it  had  been  lost,  and  por- 
tions of  it  badly  injured.  The  testimony  tended  to  show  that  the 
baggage  was  delivered  to  the  first  carrier  in  good  condition,  but  on 
what  road  or  roads  the  loss  or  injury  occurred  was  not  shown.  The 
plaintiff  below  sought  to  recover  upon  two  theories:  one  that 
Opperman,  who  sold  the  tickets,  was  the  agent  of  the  A.  T.  &  S.  F. 
Rid.  Co.,  and  that  that  company  undertook  to  carry  the  passengers 
and  baggage  over  the  entire  route,  and  that,  being  the  contracting 
carrier,  it  was  liable  for  the  loss  and  injury  regardless  of  where  and 
upon  what  road  it  occurred.  The  other  theory  is,  that  the  several 
roads  constitute  a  connected  and  united  line,  and  that  the  combina- 
tion and  running  arrangements  existing  among  the  owners  of  the 
roads  were  such  as  amounted  in  effect  to  a  partnership,  and  there- 
fore the  injury  and  loss  was  a  common  liability,  and  each  and  all  of 
the  companies  are  liable,  no  matter  upon  what  part  of  the  line  the 
loss  occurred.  No  recovery  can  be  had  upon  the  first  theory,  for 
the  reason  that  the  testimony  wholly  fails  to  establish  that  Opper- 
man was  the  agent  of  the  defendant  company.  Some  of  the  wit- 
nesses for  Roach  spoke  of  Opperman  as  the  agent  of  that  company, 


658  CARRIERS    OF    GOODS. 

while  others  stated  that  he  was  agent  of  the  New  York,  Lake  Erie 
&  Western  Bailroad  Company.  It  was  however  developed  upon 
cross-examination,  that  they  had  no  knowledge  of  his  authority  or 
agency  beyond  his  action  in  the  sale  of  the  tickets  and  the  check 
ing  of  the  baggage.  Opperman  testified  that  he  was  the  authorized 
agent  of  the  New  York,  Lake  Erie  &  Western  Railroad  Company, 
and  sold  tickets  for  and  as  the  agent  of  that  company,  and  that  he 
did  not  represent  and  was  not  the  agent  of  the  defendant  company. 
There  was  other  testimony  to  the  same  effect,  and  also  that  when 
Roach  purchased  his  tickets  the  defendant  company  had  no  tickets 
on  sale  in  or  about  the  city  of  New  York.  The  theory  that  the 
defendant  company  was  the  original  contracting  carrier  finds  no 
Support  in  the  testimony,  and  no  liability  arises  against  the  com- 
pany on  that  ground.  Where  then  is  the  liability?  It  is  contended 
by  the  railroad  company  that  the  New  York,  Lake  Erie  &  Western 
Railroad  Company,  being  the  first  carrier,  is  alone  liable.  While 
a  railroad  company  cannot  be  compelled  to  transport  to  a  point 
beyond  its  own  line,  it  is  well  settled  that  it  may  lawfully  contract 
to  carry  persons  and  property  over  its  own  and  other  lines  to  a  des- 
tination beyond  its  own  route;  and  when  such  a  contract  is  made,  it 
assumes  all  the  obligations  of  a  carrier  over  the  connecting  lines  as 
well  as  its  own.  In  such  cases  the  connecting  carriers  engaged  in 
completing  the  carriage  are  deemed  to  be  agents  of  the  first  carrier, 
for  whose  negligence  and  default  the  contracting  carrier  becomes 
liable.  Berg  v.  A.  T.  &  S.  F.  Rid.  Co.,  30  Kas.  561;  Lawson's  Con- 
tracts of  Carriers,  §  235;  Hutchinson  on  Carriers,  §  145;  Thompson's 
Carriers  of  Passengers,  p.  431 ;  2  Rorer  on  Railroads,  p.  1234.  Of 
course  a  railroad  company  or  other  common  carrier  may  limit  its 
liability  to  the  loss  or  injury  occurring  on  its  own  line,  and  the 
understanding  or  contract  between  the  parties  is  to  be  determined 
from  the  facts  of  each  case.  Some  of  the  courts  have  held  that  the 
mere  acceptance  of  the  property  marked  for  transportation  to  a 
place  beyond  the  terminus  of  the  road  of  the  accepting  carrier, 
amounts  to  an  undertaking  to  carry  to  the  ultimate  destination, 
whatever  that  may  be;  and  in  the  absence  of  any  conditions  or  limi- 
tations to  the  contrary,  will  make  it  liable  for  a  loss  occurring  upon 
the  connecting  lines  as  well  as  its  own;  while  others  hold  that  in 
such  a  case  the  carrier  is  only  bound  to  safely  carry  to  the  end  of 
its  own  route,  and  there  to  deliver  to  the  connecting  carrier  for  the 
completion  of  the  carriage.  Lawson's  Contracts  of  Carriers,  §§  238, 
239,  240.  But  where  a  railroad  company  sells  a  through  ticket  for 
a  single  fare  over  its  own  and  other  roads,  and  checks  the  baggage 
of  the  passenger  over  the  entire  route,  more  is  implied,  it  seems  to 
us,  than  the  mere  acceptance  of  the  property  marked  for  a  destina- 
tion beyond  the  terminus  of  its  own  line.  The  sale  of  a  through 
ticket  and  the  checking  of  the  baggage  for  the  whole  distance  is 
some  evidence  of  an  undertaking  to  carry  the  passenger  and  baggage 


DELIVERY    BY   CARRIER. 

to  the  end  of  the  journey.  The  contract  need  not  be  an  express  one, 
but  may  arise  by  implication  and  may  be  established   1>  (in- 

stances the  same  as  other  contracts.     In  Wisconsin  a  pass  pur- 

chased a  through  ticket  from  the  Chicago  &  Milwaukee  Railway 
Company  from  Milwaukee  to  New  York  City,  and  at  the  Bame  time 
delivered    her    trunk   to   that   company,    and   received    |  c   a 

through  check  to  New  York  City.     Upon  arrival  at    New  York  the 
trunk  was  found  to  have  been  opened  and  some  of  the  articles  taken 
therefrom.     The  Supreme  Court,  in   ruling  upon  the  effect  of  the 
railway   company    issuing    the  through   ticket    and    check,    sta 
that :  — 

"The  ticket  and  check  given  by  the  Chicago  &  Milwaukee  Rail- 
way Company  implied  a  special  undertaking  by  that  company  to 
safely  transport  and  carry,  or  cause  to  be  safely  transported  and 
carried,  the  plaintiff  and  her  baggage  over  the  roads  mentioned  in 
the  complaint,  from  Milwaukee  to  the  city  of  New  York.  Tins  we 
tnink  must  in  legal  contemplation  be  the  nature  and  extent  of  the 
contract  entered  into  and  assumed  by  that  company  when  it  sold  the 
plaintiff  the  through  ticket  and  gave  a  through  check  for  the  trunk. 
and  received  the  fare  for  the  entire  route."  Candee  v.  Pennsylvania 
Eld.  Co.,  21  Wis.  582;  111.  Cent.  Rid.  Co.  v.  Copeland,  21  111.  332; 
Carter  v.  Peck,  4  Sneed  [Tenn.],  203;  Railroad  v.  Weaver,  9  Lea, 
38;  B.  &  0.  Eld.  Co.  v.  Campbell,  36  Ohio  St.  647;  same  case,  3 
Am.  &  Eng.  Eld.  Cases,  246;  2  Eorer  on  Railroads,  p.  1001. 

From  the  authorities  we  conclude  that  the  sale  of  a  through  ticket 
for  a  single  fare  by  a  railroad  company  to  a  point  on  a  connecting 
line,  together  with  the  checking  of  the  baggage  through  to  the  des- 
tination, is  evidence  tending  to  show  an  undertaking  to  carry  the 
passenger  and  baggage  the  whole  distance,  and  which  in  the  absence 
of  other  conditions  or  limitations  and  of  all  other  circumstances 
will  make  such  carrier  liable  for  faithful  performance,  and  for  all 
loss  on  connecting  lines,  the  same  as  on  its  own.  The  liability  of 
the  first  carrier  does  not  necessarily  relieve  the  defendant  company 
from  responsibility.  Each  carrier  is  liable  for  the  result  of  its  own 
negligence,  and  although  the  first  carrier  may  have  assume. 1  the 
responsibility  for  the  transportation  to  a  point  beyond  its  own  route, 
any  of  the  subsequent  or  connecting  carriers  to  whose  default  it  can 
be  traced  will  be  liable  to  the  owner  for  the  loss  of  his  baggage. 
Hutchinson  on  Carriers.  §  715;  Aigen  v.  Boston  &  .Maine  Rid.  Co., 
132  Mass.  423;  Railroad  v.  Weaver,  9  Lea,  39. 

The  defendant  company  cannot,  however,  be  held  liable  upon  that 
ground,  because  there  is  no  evidence  that  the  baggage  was  injured 
or  lost   while  in  the  custody   of  that  company,  nor  was   it    in 
shown  upon  what  part  of  the  route  the  injury  or  loss  occurred. 

The  other  theory  upon  which  a   recovery    is  sought  is,  that  th 
several  connecting  lines  over  which  the  baggage  was  to  be  carried 
should    be  treated  as  a   continuous  and  united   line,   and  that 


660  CARRIERS    OF    GOODS. 

arrangements  made  by  the  several  lines  for  through  traffic  was  such 
as  to  constitute  them  a  partnership.  There  is  a  singular  lack  of 
testimony  in  the  case,  not  only  respecting  the  terms  of  the  contract 
with  the  passenger,  but  also  in  regard  to  the  relations  existing 
among  the  several  carriers.  Not  a  word  of  testimony  was  intro- 
duced as  to  the  running  arrangements  between  the  companies,  nor 
the  basis  upon  which  through  business  was  done.  The  practice  or 
custom  of  the  companies  in  the  past  was  not  shown,  neither  was 
there  any  proof  that  they  had  ever  co-operated,  or  had  done  any 
through  business  beyond  the  transaction  in  question.  It  was  not 
even  shown  what  the  form  of  the  ticket  was,  nor  what  were  the 
stipulations,  if  any,  printed  on  them.  There  was  in  fact  no  evi- 
dence upon  which  to  predicate  a  theory  of  partnership,  or  that  each 
of  the  companies  was  the  agent  of  all  the  others,  except  the  single 
transaction  of  selling  the  tickets  and  checking  the  baggage.  It  is 
doubtless  true  that  arrangements  are  frequently  made  among  rail- 
road companies  whose  lines  connect,  for  through  traffic,  which  con- 
stitute them  partners.  Such  an  arrangement  is  greatly  to  the 
advantage  of  the  companies;  the  convenience  which  it  affords  the 
public  invites  business,  and  swells  the  traffic  of  the  companies 
engaged  in  the  joint  enterprise.  These  arrangements  among  asso- 
ciated lines  render  it  difficult  for  the  passenger  or  shipper,  in  case  of 
loss  or  injury  of  his  property,  to  ascertain  where  the  loss  occurred; 
but  no  such  difficulty  lies  in  the  way  of  the  railroad  companies ;  they 
have  the  facilities  and  can  easily  trace  the  property  to  the  company 
which  caused  the  injury  or  loss.  In  interpreting  the  agreements 
and  conduct  of  associated  lines  engaged  in  a  through  traffic,  public 
policy  and  the  inconvenience  mentioned  should  be  considered,  and 
they  should  be  fairly  and  liberally  interpreted  towards  the  patrons 
of  the  lines  holding  the  companies,  where  it  is  admissible  under 
the  rules  of  the  law,  to  a  common  liability  as  partners.  But  such 
arrangements  for  through  traffic  cannot  be  held  to  be  a  partnership, 
unless  there  is  a  community  of  interest  among  the  companies,  and 
under  which  each  shares  the  profits  and  losses  of  the  enterprise. 
The  mere  sale  of  a  through  coupon  ticket  over  the  connecting  lines 
of  several  companies,  and  the  checking  of  the  baggage  to  the  end  of 
the  route  does  not  show  such  a  community  of  interest  as  would  make 
them  partners  inter  sese,  or  as  to  third  persons.  This  question  has 
been  directly  adjudged.  A  through  ticket  was  purchased  for  pas- 
sage from  New  York  to  Washington  over  three  lines  of  railroad 
which  constituted  a  through  line  for  the  transportation  of  passen- 
gers and  freight,  and  the  passenger  purchasing  the  ticket  received 
a  through  check  for  her  baggage.  It  appeared  that  the  fare  received 
for  through  tickets  was  accounted  for  by  the  company  selling  the 
tickets  to  the  other  lines  according  to  certain  established  rates,  but 
there  was  no  division  of  losses ;  and  it  was  held  in  an  action  against 
the  last  carrier  to  recover  for  lost  baggage,  that  the  first  carrier  was 


DELIVERY   BY   CARRIER. 


661 


liable  for  losses  occurring  on  its  own  line,  as  well  as  any  other  con- 
necting line  throughout  the  whole  distance,  but  that  the  arrange- 
ment of  the  three  companies  for  the  sale  of  through  tickets  and  tin- 
issuance  of  through  checks,  while  it  resembled  a  partnership,  did 
not  constitute  one,  nor  make  any  of  the  connecting  curriers  liable  tor 
a  loss  not  occurring  on  its  own  line.  Croft  u.  B.  &  0.  Kid.  Co., 
1  Mc Arthur,  492. 

In  Hartan  v.  Eastern  Eailroad  Co.,  114  Mass.  44,  it  was  ruled 
that  arrangements  between  connecting  roads  forming  a  continuous 
line  for  the  sale  of  through  coupon  tickets,  which  enabled  passen- 
gers to  pass  over  all  the  roads  without  change  of  cars,  did  not  imply 
joint  interest  or  joint  liability.  In  another  case,  where  several  car- 
riers whose  lines  connected  made  an  agreement  among  themselves  to 
appoint  a  common  agent  at  each  end  of  a  continuous  line  to  sell 
through  tickets  and  receive  fare,  it  was  held  that  this  arrangement 
did  not  constitute  them  partners  as  to  passengers  who  purchased 
through  tickets,  so  as  to  render  each  of  the  companies  liable  for 
losses  occurring  on  any  portion  of  the  line.  Ellsworth  v.  Tartt,  26 
Ala.  733.  A  somewhat  similar  case  was  decided  in  New  York. 
There  a  passenger  purchased  a  through  ticket  from  New  York  to 
Montreal  over  several  connecting  lines  of  railroad,  owned  by  several 
companies.  The  ticket  was  a  strip  of  paper  divided  into  coupons, 
whereof  one  was  to  be  detached  and  surrendered  to  the  conductor  of 
each  line  on  the  route.  The  passenger,  instead  of  giving  his  valise 
into  the  charge  of  the  agent  of  the  company  and  receiving  a  check 
therefor,  kept  it  in  his  own  charge  to  the  terminus  of  the  line  of  the 
first  carrier,  where  he  delivered  it  to  the  agent  of  the  connecting 
line,  who  checked  it  through  to  another  point  on  the  road.  It 
appeared  that  an  arrangement  had  been  entered  into  between  the 
various  lines  from  New  York  to  Montreal  to  connect  regularly. 
Tickets  were  sold  in  New  York  for  the  entire  route  or  intermediate 
places,  under  the  direction  of  a  general  agent,  who  was  paid  by  the 
several  companies.  The  rate  of  fare  was  different  on  the  different 
roads,  and  each  company  received  its  own  proportion  of  the  whole 
fare  or  passage-money  at  the  close  or  at  the  beginning  of  every 
month,  according  to  the  established  rates  of  fare.  It  was  held  that 
there  was  nothing  in  an  arrangement  like  this  to  constitute  the 
different  companies  partners  for  the  transportation  of  passengers  or 
baggage,  so  as  to  make  one  of  them  liable  in  common  with  the  others 
for  the  loss  of  the  valise.  It  was  decided  that  "the  arrangement 
may  be  beneficial  to  them  as  well  as  to  the  public,  inasmuch  as  by 
facilitating  travel,  it  may  tend  to  increase  it,  but  that  would  not 
create  that  joint  interest,  that  community  in  profit  and  loss  which 
is  essential  to  the  existence  of  a  partnership."  Straiton  v.  New 
York  &  New  Haven  Eld.  Co.,  2  E.  D.  Smith,  184;  Hot  Springs  Kid. 
Co.  v.  Tripple  &  Co.,  42  Ark.  465;  same  case,  18  Am.  &  Eng.  Rid. 
Cas.  562;  Aigen  v.  Boston  &  Maine  Rid.  Co.,  132  Mass.    123;  same 


(3(32  CAKKIEKS    OF   GOODS. 

case,  6  Am.  &  Eng.  Rid.  Cas.  426;  Darling  v.  Boston  &  Worcester 
Eld.  Co.,  11  Allen,  295;  Kessler  v.  Railroad  Co.,  61  N.  Y.  538; 
Irwin  v.  Eld.  Co.,  92  111.  103;  Insurance  Co.  v.  Rid.  Co.,  104  U.  S. 
146;  same  case,  3  Am.  &  Eng.  Rid.  Cas.  260. 

Among  the  cases  relied  on  by  the  defendant  in  error  is  Hart  v. 
Rid.  Co.,  4  Selden,  37.  In  that  case  the  defendant,  which  was  one 
of  three  railroad  companies  owning  distinct  portions  of  a  continuous 
road,  was  held  liable  for  the  loss  of  the  baggage  of  a  passenger 
received  at  one  terminus  to  be  carried  over  the  whole  road.  The 
liability  was  not,  however,  based  alone  upon  the  selling  of  the  ticket 
and  the  checking  of  the  baggage.  In  addition  to  through  tickets,  it 
appeared  that  under  the  agreement  made  each  of  the  railroad  com- 
panies ran  its  cars  over  the  whole  route,  and  employed  the  same 
agents  to  sell  passage-tickets.  Besides  these  facts,  it  appeared  that 
the  lost  baggage  had  been  placed  directly  in  charge  of  the  servants 
of  the  defendant  company,  and  that  its  loss  was  due  in  part  to  the 
negligence  of  that  company. 

Texas  &  Pacific  Rid.  Co.  v.  Fort,  a  decision  by  the  commission  of 
appeals  of  the  State  of  Texas,  reported  in  9  Am.  &  Eng.  Rid.  Cases, 
392,  is  also  relied  on.  There  it  is  held  that  the  delivery  of  through 
checks,  upon  which  were  stamped  letters  indicating  the  different 
railways  over  which  the  baggage  would  go,  constituted  a  contract 
under  which  the  several  companies  were  liable,  regardless  of  the 
line  upon  which  the  loss  occurred,  —  a  proposition  to  which  we  can- 
not accede.  The  decision  in  this  case  is  based  upon  the  ruling  in 
Hart  v.  Railroad  Co.,  supra,  which,  as  we  have  seen,  was  deter- 
mined upon  other  considerations.  The  same  may  also  be  said 
respecting  Texas  &  Pacific  Railway  Co.  v.  Ferguson,  another  de- 
cision of  the  commission  of  appeals  of  Texas,  9  Am.  &  Eng. 
Rid.  Cases,  395,  as  well  as  Hart  v.  The  Grand  Era,  1  Woods 
C.  C.  184. 

The  only  other  case  relied  on  is  Wolf  v.  Central  Rid.  Co.,  68  Ga. 
653.  It  was  there  held  that  where  a  passenger  with  a  through  ticket 
over  a  connecting  line  checked  his  baggage  at  the  starting-point 
through  to  his  destination,  and  upon  arrival  there  found  that  it  had 
been  injured,  he  might  sue  the  railroad  company  which  issued  the 
check  or  the  one  delivering  the  baggage  in  bad  order.  Upon  the 
facts  in  that  case  the  court  determined  that  the  company  selling 
the  tickets  was  to  be  regarded  as  the  agent  of  the  other  companies 
composing  the  line,  and  intimated  that  where  a  passenger  travels 
over  a  continuous  line  on  a  through  ticket,  and  the  baggage  is  sent 
on  a  through  check,  that  any  one  of  the  companies  may  be  held 
liable  for  spoliation  of  the  baggage,  irrespective  of  the  point  at  which 
it  actually  occurred ;  and  the  query  is  also  raised  as  to  whether  they 
are  jointly  liable  as  partners.  The  writer  of  the  opinion  held  that 
by  the  sale  of  the  tickets  and  the  division  of  the  receipts  at  period- 
ical settlements  they  acted  as  principals  and  not  as  agents,  and  that 


DELIVERY    BY    CARRIER. 

by  such  action  they  stood  substantially  in  the  position  of  pai  I 
the  through  business,  and  were  jointly  and  severally  liable  us  such. 
The  concurrence  of  the  other  justices  was,  however,  placed  upon  the 
ground  that  as  the  last  carrier,  and  the  one  which  was  sued,  recei 
the  baggage  in  apparent  good  condition,  it  was  presumably  liable, 
and  the  Chief  Justice  stated,  that  this  was  the  exact  point  decided. 
It  is  difficult  in  many  cases  to  determine  whether  the  arrangement* 
and  agreements  of  connecting  carriers  are  such  as  to  constitute  i 
of  them  principals,  or  to  place  them  in  the  relation  of  partners;  but 
neither   upon   reason   or   authority  can  we  hold   that   the   sale   of 
through  tickets  and  the  checking  of  baggage  over  the  connecting 
lines  of  several  companies,  without  other  proof  of  their  relations  or 
the  basis  upon  which  the  business  was  done,  is  sufficient  to  make 
them  jointly  and  severally  liable  as  partners. 

The  instructions  of  the  court  not  being  in  accord  with  the  views 
herein  expressed,  and  the  evidence  being  insufficient  to  support  the 
verdict,  the  judgment  of  the  District  Court  must  therefore  be 
reversed,  and  the  cause  remanded  for  another  trial. 

All  the  justices  concurring. 


PETERSON  v.   CHICAGO,    ROCK  ISLAND   AND  PACIFIC 

R.    CO. 

80  Iowa,  92.     1890. 

The  plaintiff  seeks  to  recover  of  the  defendants,  who  are  common 
carriers  of  passengers  and  baggage,  the  value  of  certain  wearing 
apparel,  ornaments,  and  other  property  which  were  stolen  from  cer- 
tain trunks  of  the  plaintiff  and  her  husband,  while  being  conveyed 
as  baggage  from  Davenport,  in  this  State,  to  the  city  of  Los  Angeles, 
in  the  State  of  California.  There  was  a  trial  by  jury,  and  at  the 
close  of  the  introduction  of  the  evidence  the  court,  on  the  motion 
of  the  defendants,  directed  the  jury  to  return  a  verdict  for  the 
defendants.     Plaintiff  appeals. 

Rothkock,  C.  J.         ........ 

II.  In  an  amendment  to  the  petition  the  plaintiff  set  up  a  second 
and  further  cause  of  action,  in  which  it  is,  in  substance,  alle 
that,  at  the  time  the  tickets  were  purchased  by  Peterson  and  the 
journey  was  made,  the  four  railroad  companies  owned  and  operate  1 
by  the  defendants  formed  a  complete  connecting  line  of  railway 
from  Davenport  to  Los  Angeles,  and  at  said  time  said  four  defend- 
ants had  formed  and  entered  into  an  agreement  and  combination  for 
the  purpose  of  transporting  passengers  and  their  baggage  from 
Davenport  to  Los  Angeles,  by  using  said  four  lines  of  railway 


664  CARRIERS    OF    GOODS. 

continuous  line  between  said  places,  and  making  one  fare  or  charge 
for  such,  transportation  for  the  entire  distance,  "  that  said  business 
of  transporting  said  baggage  was  done  by  defendants  in  such  a  man- 
ner that  it  was  impossible  for  plaintiff  or  her  husband  to  know  or 
discover  at  what  particular  place  on  said  route  said  property  was  so 
taken  from  trunks,  and  she  is,  therefore,  unable  to  state."  There 
was  no  evidence  to  sustain  this  count  of  the  petition  as  against 
the  Chicago,  Kock  Island  and  Pacific  Eailway  Company.  On  the 
contrary,  it  is  expressly  provided,  on  the  face  of  the  ticket,  that  the 
said  company  assumed  "no  responsibility  beyond  its  own  line."  It 
did  not  check  the  baggage  beyond  its  own  line,  and  the  evidence 
shows  that  the  trunks  were  not  opened  while  they  were  in  the  pos- 
session of  that  company.  When  the  baggage  was  delivered  at  Kansas 
City,  the  checks  taken  up  and  the  trunks  rechecked,  the  contract, 
so  far  as  the  Rock  Island  Company  was  concerned,  was  fully  per- 
formed. The  court  is  committed  to  the  doctrine  that  the  receiving 
or  initial  carrier  may,  by  a  stipulation  in  the  bill  of  lading  or  con- 
tract of  carriage,  limit  its  liability  to  injuries  to  the  consignment 
which  occur  on  its  own  line.  Mulligan  v.  Eailway  Co.,  36  Iowa,  181. 
We  do  not  understand  counsel  for  appellant  to  claim  that  the  court 
erred  in  directing  a  verdict  for  the  Rock  Island  Company,  and  it  has 
made  no  appearance  in  this  court,  and  has  not  filed  either  brief  or 
argument. 

The  important  question  to  be  determined  in  the  case  is  whether 
the  other  three  defendants  are  jointly,  or,  rather,  jointly  and 
severally,  liable  for  the  pillage  of  plaintiff's  baggage.  That  some 
one  of  them  is  liable  there  can  be  no  serious  question.  It  is  true 
that  larceny  may  have  been  committed  by  the  employees  of  the 
transfer  company  at  Los  Angeles.  But,  in  view  of  the  brief  time 
between  the  delivery  of  the  checks  and  the  arrival  of  the  baggage  at 
the  hotel,  this  is  not  at  all  probable.  To  determine  this  question,  it 
will  be  necessary  to  analyze  the  contract,  and  determine  its  legal 
effect  upon  the  rights  of  the  parties.  It  will  be  observed  that  the 
ticket  does  not  provide  that  the  Atchison,  Topeka,  and  Santa  Fe,  the 
Atlantic  and  Pacific,  and  the  California  Southern  Railroad  com- 
panies assumed  no  responsibility  beyond  their  own  line.  Their 
obligation  is,  therefore,  to  be  determined  by  the  ticket  with  the 
coupons  attached,  and  by  the  other  facts  developed  in  the  evidence 
tending  to  show  what  the  real  contract  was ;  and  here  it  is  proper  to 
say  that  a  railroad  passenger  ticket  does  not  ordinarily  import  a 
complete  contract.  It  is  in  some  sense  like  a  check  for  baggage.  It 
is  issued  by  the  carrier  as  the  evidence  of  the  right  of  the  passenger 
to  transportation  between  the  points  named  on'the  face  of  the  ticket. 
It  is  surely  not  as  complete  a  contract  in  form  as  a  bill  of  lading  for 
the  transportation  of  goods,  and  a  bill  of  lading  is  everywhere  recog- 
nized as  a  receipt  as  well  as  a  contract.  In  the  case  of  Steamboat 
Co.  v.  Brown,  54  Pa.  St.  11,  speaking  of  a  bill  of  lading,  it  is  said: 


DELIVERY    BY    CARRIER. 

"On  its  face,  it  is  but  a  memorandum,  and  not  in  form  a  contract 
inter  partes.     It  is  doubtless  an  instrument  fitted  for  the  occasion  in 
which  it  is  usually  employed;  and  while  what  is  clearly  expres 
may  not  be  contradicted  by  oral  testimony,  unless  under  the  quali- 
fication of  fraud  or  mistake,  yet  there  is  no  rule  which  exclu 
timony  to  explain  it,  and  to  show  what  the  real  contract  was,  of 
which  it  is  but  a  note  or  memorandum  at  best."     And  see  Quimby 
v.  Vanderbilt,    17   1ST.    Y.    306.     This   court   has   determined    that, 
where  a  contract  is  partly  in  writing  and  partly  by  verbal  ag  i 
ment,  parol  evidence  may  be  introduced  to  show  the  portion  of  the 
contract  not  reduced  to  writing.     Singer  Sewing  Machine   Co.    v. 
Holcomb,  40  Iowa,  43;  Keen  v.  Beckman,  66  Iowa,  672. 

Applying  this  rule  to  the  evidence  in  the  case,  it  appears  that  the 
Rock  Island  Railroad  Company  or  its  ticket  agent  was  authorized  to 
sell  through  tickets  over  the  three  roads,  and  to  collect  and  receive 
the  full  fare  for  the  whole  distance  from  Kansas  City  to  Los  Angeles. 
How  this  was  divided  among  the  said  companies  does  not  appear. 
So  far  as  it  appeared  to  Peterson,  the  purchaser  of  the  tickets,  it 
was  a  joint  transaction.  The  ticket  recognizes  the  right  of  the  pas- 
senger to  have  the  baggage  transported  over  the  respective  lines,  and 
an  attempt  was  made  to  limit  the  liability  to  one  hundred  dollars, 
but  no  reference  is  made  to  any  several  liability  of  any  company 
forming  the  line,  except  the  Rock  Island  Company.  The  Rock 
Island  Company,  as  the  agent  of  the  other  lines,  had  no  authority 
to  check  baggage  over  them.  This  is  apparent  from  the  fact  that 
the  trunks  were  passed  over  the  Rock  Island  road  without  question 
as  to  their  weight;  but,  when  they  were  rechecked  by  the  Atchison, 
Topeka,  and  Santa  Fe  Company  at  Kansas  City,  the  sum  of  twenty- 
seven  dollars  on  extra  baggage  was  exacted  by  the  company,  and 
paid  by  Peterson,  and  in  consideration  thereof  the  baggage  was 
checked  through  to  Los  Angeles.  This  was,  in  effect,  paying  to  all 
three  of  the  companies  for  carrying  extra  baggage  from  Kansas  City 
to  the  end  of  the  journey.  It  appears  that  the  trunks  and  Peterson 
and  his  family  were  all  carried  through  to  Los  Angeles  on  the  same 
train.  It  does  not  appear  whether  there  was  any  change  of  passen- 
ger or  baggage  cars  in  the  train.  The  checks  delivered  to  Peterson 
at  Kansas  City  imported  an  obligation  on  the  part  of  the  three  <■ 
panies  to  carry  the  baggage  through  to  its  destination.  A  check  for 
baggage  has  the  same  elements  of  a  contract  as  an  ordinary  railway 
passenger  ticket.  It  is,  to  say  the  least,  some  evidence  of  the  con- 
tract between  the  carrier  and  the  traveller  for  the  transportation  of 
his  baggage.  Anderson  v.  Railway  Co.,  65  Iowa.  131.  An  exam 
ination  of  the  coupon  attached  to  the  ticket  above  set  out  will  show 
that,  at  the  foot  of  the  coupon,  the  initials  of  all  of  the  defendants 
appear.  It  is  not  claimed  that  these  initials  are  not  intended  to 
represent  the  defendants.  There  is  no  evidence  tending  to  shov. 
what  purpose  these  initials  were  placed  there,  but  it  is  conci 


688  CAEEIERS   OF   GOODS. 

they  were  on  all  the  coupons.  It  is  contended  by  counsel  for  appel- 
lees that  these  initials  were  placed  upon  the  coupons  to  indicate  the 
route  pursued  by  the  traveller.  Counsel  for  appellant  claim  that 
they  are  signatures  to  a  contract.  In  the  absence  of  any  evidence, 
and  in  construing  the  contract  so  far  as  it  is  written,  and  in  connec- 
tion with  the  facts  above  recited,  we  think  the  defendants  ought  not 
to  complain  if  it  be  held  that  they  imported  a  joint  obligation  upon 
the  part  of  the  defendants,  except  the  Rock  Island  Company,  which, 
by  the  express  stipulation  in  the  body  of  the  ticket,  is  not  bound  for 
any  failure  beyond  its  own  line.  The  appearance  of  these  initial 
letters  on  all  the  coupons  was,  to  say  the  least,  an  important  fact, 
to  be  considered  in  determining  whether,  as  to  the  last  three  roads 
in  the  line,  there  were  three  separate  contracts  or  one  joint  contract; 
and  we  can  see  no  valid  reason  why  it  may  not  be  held  that  the  con- 
tract, so  far  as  the  last  three  roads  are  concerned,  was  completed 
by  what  occurred  at  Kansas  City  and  afterwards.  It  is  true  the 
Atchison,  Topeka,  and  Santa  Fe  Company  was  an  intermediate  car- 
rier. But  such  a  carrier  may,  by  its  contract,  make  itself  liable  for 
the  safe  transportation  of  the  baggage  through  the  entire  route. 
Beard  v.  Railway  Co.,  79  Iowa,  518. 

It  is  important  to  understand  just  what  question  was  determined 
by  the  District  Court.  The  direction  to  the  jury  to  return  a  verdict 
for  the  defendants  was,  in  effect,  a  holding  that  there  was  not  suffi- 
cient evidence  to  submit  to  the  jury  to  justify  a  verdict  that  the 
defendants  were  jointly  liable.  In  other  words,  that  the  ticket, 
with  the  coupons  attached,  together  with  parol  evidence,  showed 
that  four  separate  contracts  were  made,  which  made  four  causes  of 
action,  or  one  action  against  each  company  for  spoliation  of  the 
baggage  on  its  road  only,  and  that  there  was,  therefore,  a  misjoinder 
of  causes  of  action.  If  this  was  correct,  there  could  be  no  recovery 
against  either  company,  because  there  was  no  evidence  at  what  point 
of  the  line  the  trunks  were  unlocked  and  the  property  removed. 
The  counsel  for  the  plaintiff  cited  a  large  number  of  cases,  which 
it  is  claimed  hold  that,  under  like  facts,  the  several  lines  are  held 
to  be  jointly  liable,  and  other  cases  where  the  last  carrier  in  the 
continuous  line  is  held  liable.  The  following  are  some  of  the  author- 
ities relied  upon:  Laughlin  v.  Railway  Co.,  28  Wis.  204;  Brintnall 
v.  Railway  Co.,  32  Vt.  665;  Hart  v.  Railway  Co.,  8  N.  Y.  37;  Fair- 
child  v.  Slocum,  19  Wend.  329;  Wolff  v.  Railway  Co.,  68  Ga.  653; 
Railway  Co.  v.  Mcintosh,  73  Ga.  532;  Barter  v.  Wheeler,  49  N.  H. 
9;  and  Harp  v.  The  Grand.  Era,  1  Woods,  184. 

In  the  last  above  case  the  action  was  against  an  intermediate  car- 
rier, and  in  all  the  others  the  action  was  either  against  the  receiving 
carrier  or  the  last  one  in  the  line.  In  one  of  the  cases  —  that  of 
Laughlin  v.  Railway  Co.  —  the  action  was  against  the  last  carrier. 
There  was  no  evidence  at  what  point  the  goods  were  stolen,  and  the 
court  held  the  defendant  liable  upon  the  presumption  that  the  goods 


DELIVEKY   BY    OAKETEE. 

were  stolen   in  the  possession  of  the  last  carrier.     In  Brintnall  v. 
Railway  Co.,  the  plaintiff  was  permitted  to  recover  of  the  receiving 
carrier,  because,   when  the  goods  were  shown  to  have  been  in  its 
custody,  it  was  incumbent  on  it  to  show  that  it  had  delivered  the 
foods  to  the  next  carrier  in  the  line.     It  may  be  said  of  all  the  cited 
cases  that  they  rest  mainly  upon  what  is  deemed    presumptii 
These  presumptions  are  grounded  upon  the  necessities  of  the  c 
rather  than  upon  any  clear  and  well-defined  legal  grounds,      [ndeed, 
many  of  them  are  really  grounded  upon  the  thought  that,  when-  it 
is  impossible  for  the  owner  to  show  upon  which  part  of  the  whole 
line  of  travel  the  property  was  lost  or  stolen,  it  is  incumbent  on  the 
defendant  to  show  itself  clear  of  the  loss.     In  one  of  the  cited  ca 
Smith  v.  Railway  Co.,  43  Barb.  225,  it  is  said:   "Unless  this  rule 
is  to  be  applied  to  goods  delivered,  to  be  transported  over  several 
connecting  railroads,    there  would  be  no  safety  to  the  owner.      It 
would  often  be  impossible  for  him  to  prove  at  what  point,  or  in  the 
hands  of  what  company,  the  injury  happened."     Others  of  the  cited 
cases  hold  the  defendants  liable  upon  grounds  which  are  really  based 
upon  the  thought  that  all  of  the  connecting  lines  are  jointly  liable. 
This  is  true  of  the  case  of  Wolff  v.  Railway  Co.,  68  Ga.  653;  and 
in  Railway  Co.  v.  Fort,  9  Am.  &  Eng.  R,  R.  Cas.  392,   and  Rail- 
way Co.  v.  Ferguson,  9  Am.  &  Eng.  R,  R.  Cas.  395,  the  Supreme 
Court  of  Texas  holds  that,  when  a  person  purchases  a  through  tick.  1 
over  several  railroads,  and  procures  a  corresponding  check  for  his 
baggage,  and  the  baggage  is  lost,  each  carrier  is  the  agent  of  all  the 
others,  and  is  liable  to  any  damage  to  the  baggage  on  whatever  part 
of  the  line  the  damage  was  done.     The  case  of  Harp  v.  The  Grand 
Era,  supra,  is  to  the  same  effect. 

On  the  other  hand,  we  are  cited  by  counsel  for  appellee  to  a  large 
number  of  cases  which  determine  that,  where  several  connecting 
companies  form  a  through  line,  each  operating  its  own  road,  and 
through  tickets  with  coupons  attached  are  sold  over  the  entire  route 
for  a  single  fare,  there  is  no  joint  liability  by  reason  thereof,  and 
each  carrier  will  only  be  liable  for  defaults  occurring  on  its  own 
road,  except  that  in  some  States  the  receiving  carrier  is  presumed  to 
contract  for  carriage  over  the  entire  route.  Among  the  cases  cited 
are  the  following:  Ellsworth  v.  Tartt,  26  Ala.  7:;:;:  Hood  v.  Hail- 
way  Co.,  22  Conn.  12;  Knight  v.  Railway  Co.,  56  Me.  240;  Croft  v. 
Railway  Co.,  1  McArthur,  492;  Kessler  v.  Railway  Co..  61  N\  V. 
538;  Railway  Co.  v.  Roach,  35  Kan.  740;  12  Pac.  Rep.  93.  The 
length  of  this  opinion  forbids  that  we  should  review  these  rases. 

After  a  very  full  and  careful  examination  of  the  subject,  Mr. 
Hutchinson,  in  his  work  on  carriers  (page  131),  says:  "From  the 
cases  it  maybe  deduced:  First,  that  where  carriers  over  different 
routes  have  associated  themselves  under  a  contracl  lor  a  division  of 
the  profits  of  the  carriage  in  certain  proportions,  or  of  the 
from  it,  after  deducting  any  of  the  expenses  of  the  business,  they 


668  CAEEISES   OF   GOODS. 

become  jointly  liable  as  partners  to  third  persons ;  but  that,  where 
the  agreement  is  that  each  shall  bear  the  expenses  of  his  own  route, 
and  of  the  transportation  upon  it,  and  that  the  gross  receipts  shall 
be  divided  in  proportion  to  distance  or  otherwise,  they  are  partners 
neither  inter  se  nor  as  to  third  persons,  and  incur  no  joint  liability." 
We  think  this  is  a  fair  statement  of  the  rule  of  joint  liability  which 
is  supported  by  the  great  weight  of  authority. 

It  only  remains  to  be  determined  whether  the  evidence  in  this  case 
authorized  the  jury  to  find  a  joint  liability.  We  think  it  did.  It 
is  true  there  is  no  express  proof  that  these  defendants  were  partners. 
But  it  is  to  be  remembered  that  the  plaintiff  made  the  best  proof  of 
which  her  case  was  capable.  The  fact  as  to  the  relation  which  these 
companies  sustained  to  each  other,  and  the  impossibility  of  proving 
where  or  on  which  road  the  trunks  were  pillaged;  the  receipt  of  the 
whole  of  the  fare  by  their  joint  agent,  the  Rock  Island  Railway 
Company;  the  collection  of  the  charge  for  extra  baggage  at  Kansas 
City ;  and  the  fact  that  the  trunks  were  checked  through  and  carried 
to  the  end  of  the  journey  on  the  same  train  with  Peterson  and  his 
family;  and  the  initials  of  all  of  the  companies  to  each  coupon, 
authorized  a  finding  that  the  undertaking  was  a  joint  transaction, 
at  least  so  far  as  the  rights  of  the  passengers  to  have  their  baggage 
safely  carried  were  involved.  In  our  opinion,  the  case  ought  to 
have  been  submitted  to  the  jury. 

Reversed. 


b.    Delivery  to  Consignee. 

SWEET   v.   BARNEY. 
23  N.  Y.  335.     1861. 

Appeal  from  the  Supreme  Court.  Action  against  the  defendants, 
an  express  company,  as  common  carriers,  to  recover  the  amount  of 
a  package  of  money,  received  by  the  defendants,  directed  to  the 
"People's  Bank,  173  Canal  Street,  New  York."  The  defendants  had 
a  verdict  at  the  circuit,  which  was  affirmed  at  the  General  Term  of 
the  Supreme  Court  in  the  seventh  district,  and  the  plaintiffs  appealed 
to  this  court. 

The  proof  showed  these  facts:  The  plaintiffs  were  bankers  at 
Dansville,  Livingston  County.  They  kept  an  account  with  the 
People's  Bank,  in  which  they  were  in  the  habit  of  making  deposits 
and  drawing  bills  of  exchange  or  checks  against  the  same.  A  pack- 
age containing  $2,892  was  delivered  by  them  to  the  defendants, 
directed  "People's  Bank,  173  Canal  Street,  New  York,"  to  be  for- 
warded as  directed.     The   package  was   taken  to  New  York,   and 


DELIVERY   BY   CARRIKI;. 

delivered  at  the  defendant's  office  in  that  city  to  one  Messenger,  an 
employee  of   the  People's  Bank.     Messenger  was  a  porter  in  the 
People's  Bank,  and  had  been  for  several  years;  was  accustomed  to 
receive  money  brought  by  the  defendant's  company  at  the  bank,  at 
the  Clearing  House  and  at  the  defendant's  office.     Messenger  was 
also  accustomed  to  act  for  the  People's  Bank  in  making  exchai 
and  collections  with  other  banks;  and  he  acted  as  its  represent;) 
at  the  Clearing  House,   at  a  desk  labelled  '"People's  Bank;"   had 
there  often  received  packages  of  money  from  the  defendants   ad- 
dressed to  "People's  Bank"  and  given  receipts  for  the  same  for 
bank.     The  defendants'  office  was   in  the  same  building  with  the 
Clearing  House,  and  Messenger  requested  the  defendants  to  ki 
the  packages  for  the  People's  Bank  at  their  office  until  he  called 
for  them.     The  defendants  did  so,  and  Messenger  regularly  called 
for  them  and  received  them,  and  gave  receipts.     In  the  eighteen 
days  previous  to  the  delivery  of  this,  nine  other  packages  for  the 
People's  Bank  were  delivered  to  and  receipted  by  Messenger  with- 
out any  complaint  or  objection  from  the  bank.     After  the  delivery 
to  Messenger  of  the  package  in  question  it  was  stolen  from  him. 

The  plaintiff's  counsel  requested  the  judge  to  charge  the  jury  that 
the  duty  of  the  defendants  was  to  deliver  the  package  at  the  bank  as 
directed,  and  they  were  not  authorized  to  deliver  the  same  to  any 
person  at  any  place  other  than  at  the  bank.  2.  That  neither  the 
bank  nor  the  defendants  were  authorized  to  change  the  mode  of 
delivery  of  the  package  without  the  consent  or  knowledge  of  the 
plaintiffs;  and  that  such  change,  if  made  without  their  knowledge 
or  consent,  would  not  discharge  the  defendants. 

The  judge  refused  both  of  these  requests,  and  the  plaintiffs'  coun- 
sel excepted  to  such  refusal.  The  judge  charged  that  a  delivery  to 
an  agent  of  the  bank,  authorized  by  it  to  receive  the  package,  al 
any  place  other  than  the  bank,  would  discharge  the  defendant,  to 
which  the  plaintiffs'  counsel  also  excepted. 

James,  J.  That  these  defendants  were  common  carriers  can 
hardly  be  doubted.  Persons  whose  business  it  is  to  receive  pack- 
ages of  bullion,  coin,  bank  notes,  commercial  paper,  and  such  other 
articles  of  value  as  parties  see  fit  to  trust  to  their  care  for  the  pur- 
pose of  transporting  the  same  from  one  place  to  another  for  a  com- 
pensation, are  common  carriers,  and  responsible  as  such  for  the  sate 
delivery  of  property  intrusted  to  them.  Russell  v.  Livingston.  L9 
Barb.  346;  Sherman  v.  Wells,  28  Barb.  403.  Such  was  the  busi- 
ness of  these  defendants,  and  such  their  responsibility. 

The  consignee  is  the  presumptive  owner  of  the  thing  consigned ; 
and  when  the  carrier  is  not  advised  that  any  different  relation  exists, 
he  is  bound  to  so  treat  the  consignee;  but  this  presumption  may  be 
rebutted;  and  if  in  an  action  for  non-delivery  by  the  consigner 
against  the  carrier  that  presumption  be  overcome,  the  action  is 
properly  brought  in  the  consignor's  name.     Price  w.  Powell,  3  Comst. 


670  CARRIERS    OF    GOODS. 

322.     But  in  this  case,  unless  a  delivery  of  the  money  be  established, 
the  plaintiffs'  right  to  recover  was  made  out. 

There  was  no  notice  of  the  contents  of  the  package  in  question 
belonging  to  the  consignors;  nor  was  there  any  fact  proved,  calcu- 
lated to  weaken  the  presumption  of  ownership  in  the  consignee. 
The  defendants  were,  therefore,  not  only  authorized,  but  fully  jus- 
tified in  treating  the  consignment  as  the  property  of  the  bank.  The 
defendants  could  not  know  that  they  were  employed  to  make  a 
deposit  in  the  People's  Bank  for  the  benefit  of  the  assignors;  or 
that  this  package  was  entitled  to  or  demanded  a  special  delivery. 
There  was,  in  fact,  nothing  in  the  transaction  to  advise  them  that 
this  package  was  to  be  treated  differently  from  other  packages 
actually  belonging  to  the  bank;  and,  therefore,  any  delivery  good 
against  the  bank  discharged  the  carrier. 

The  principal  question  then  is,  was  there  a  delivery  good  against 
the  bank;  if  there  was,  the  plaintiffs  must  follow  the  bank;    they 
have  no  cause  for  action  against  these  defendants.     It  is  conceded 
that  the  liability  of  a  carrier  begins  with  the  receipt  of  the  goods 
by  him,  and  continues  until  the  delivery  of  the  goods  by  him,  sub- 
ject to  the  general  exceptions.     And  an  express  carrier  is  bound  to 
deliver  the  goods  at  their  destined  place,  to  the  consignee,  or  as  the 
consignee    may  direct.     In    general,   the    delivery  must   be  to  the 
owner  or  consignee  himself,  or  to  his  agent,  11  Met.  509,  or  they 
must  be  carried  to  his  residence,  or  they  may  be  taken  to  his  place 
of  business,  when  from  the  nature  of  the  parcels  that  is  the  appro- 
priate place  for  their  delivery.     But  there  is  no  rule  of  law  requir- 
ing a  delivery  at  the  consignee's  residence  or  place  of  business  when 
he  is  willing  to  accept  it  at  a  different  place,  or  directs  a  delivery  at 
another  place.     The  consignee,  or  his  authorized  agent,  may  receive 
goods  addressed  to  him  in  the  hands  of  a  carrier  at  any  place,  either 
before  or  after  their  arrival  at  their  place  of  destination,  and  such 
acceptance  operates  as  a  discharge  of  the  carrier  from  his  liability. 
It  was  held  in  Lewis  v.  The  Western  Railroad,  11  Met.  509,  that 
if  A,   for  whom   goods   are  transported,  authorizes  B  to  receive  a 
delivery  thereof,  and  to   do  all  acts   incident  to  the  delivery  and 
transportation  thereof  to  A,  and  B,  instead  of  receiving  the  goods 
at  the  usual  place  of  delivery,  requests  the  agent  of  the  railroad  to 
permit  the  car  which  contains  the  goods  to  be  hauled  to  a  near  depot 
of  another  company,  and  such  agent  assents  thereto,  and  assists  B 
in  hauling  the  car  to  such  depot,  and  B  then  requests  and  obtains 
leave  of  that  company  to  use   its   machinery  to  remove  the  goods 
from   the   car  —  the    company   that   transported   the   goods    is   not 
answerable  for  the  want  of  care  or  skill  in  the  persons  employed  in 
so  removing  the  goods  from  the  car,  nor  for  the  want  of  strength  in 
the  machinery  used  for  the  removal  of  them,  and  cannot  be  charged 
with  any  loss  that  may  happen  in  the  course  of  such  delivery  to  A. 
Had  the  consignee  in  this  case  received  the  package  in  question  at 


DELIVERY   BY   CARRIER.  671 

the  defendants'  office,  I  think  no  one  would  doubt  the  defend., 
were  discharged.     The  case  then  turns  upon   Messen 
If  an  authorized  agent  in  the  premises,  a  delivery  to  him   was 
effectual  as  a  delivery  to  the  principal.     The  question  of  agency 
a  question  of  fact,  and  was  settled  by  the  verdict  of  the  jury. 

We  tli ink  the  delivery  at  the  office  of  the  defendant  to  the 
authorized  agent  of  the  consignee  was  proper,  and  operated  to 
discharge  the  defendants  from  their  obligations  as  carrie 

This  disposes  of  the  case  unless  there  was  some  error  committed 
at  circuit  in  submitting  the  question  of  Messenger's  authorit . 
the  jury,  or  in  the  court's  refusing  to  charge  as  requested.  1  h 
been  unable  to  discover  auy  such  error.  The  evidence  submitted 
was  competent  —  it  was  of  the  most  perfect  and  satisfactory  kind, 
and  not  only  justified,  but  required  the  verdict  rendered.  The  judg- 
ment should  be  affirmed.1 

1  Da  vies,  J.,  dissenting. 

The  question  presented  to  our  consideration  in  this  case  is,  whether  the  defendants 
have  performed  the  service  which  they  undertook.  There  is  no  ground  for  the  assump- 
tion that  the  money  transmitted  by  the  defendants  was  the  property  of  the  bank. 
It  was  sent  by  the  plaintiffs  to  be  deposited  with  the  bank  as  their  property,  and  there 
is  no  reason  to  infer  that  it  was  sent  to  pay  an  antecedent  debt.  There  is  no  proof 
that  any  such  debt  existed,  and  it  might  as  well  be  said  that  the  money  of  any  de- 
positor when  set  aside  to  be  deposited  in  a  bank  became  the  property  of  the  bank  and 
ceased  to  be  that  of  the  depositor.  It  is  placed  in  the  bank  for  safety,  and  as  a 
convenient  mode  of  transacting  business  and  for  making  payments  by  the  depositor, 
by  checks  or  drafts  on  the  bank.  It  could  be  attached  and  reached  as  tin-  property  of 
the  depositor.  The  ordinary  presumptions  applicable  to  a  consignment  of  property 
to  the  ownership  by  the  consignee,  have  no  application  to  the  present  case.  Have  the 
defendants  performed  the  service  which  they  undertook  ?  It  is  contended  on  tln-ir 
behalf  that  they  have,  because  they  delivered  the  package  to  an  agent  of  the  bank, 
and,  as  they  assume,  under  such  circumstances  as  would  render  the  bank  liable  to  the 
plaintiffs  for  the  money  transmitted. 

It  would  seem  to  be  a  sufficient  answer  to  this  defence  to  say,  that  Buch  was  not  the 
contract  made  by  the  defendants  with  the  plaintiffs,  and  that  they  have  no  legal  right 
to  make  a  new  contract,  or  do  something  which  they  contend  is  equivalent  to  that 
undertaken  to  be  done  by  them  :  there  is  no  pretence  that  the  plaintiffs  were  parties 
to  any  such  modification  of  the  contract,  made  or  had  any  knowledge  of  it,  or  in  any 
manner  assented  to  it.  Nor  can  it  be  alleged  that  the  custom  of  the  defendants  in 
delivering  packages  to  the  parties,  at  places  other  than  the  bank,  can  have  any  effect 
on  the  rights  of  the  plaintiffs.  As  between  the  defendants  and  the  bank  it  has  signifi- 
cance :  as  to  the  parties  of  the  contract,  it  is  res  inter  alios  acta,  and  the  plaintiffs  are 
not  deprived  of  any  of  their  rights  by  reason  of  it.  It  is  well  Bettled,  that  it  is  the 
duty  of  the  carrier,  not  only  to  transport  the  goods  safely  to  the  place  of  delivery,  bat 
without  any  demand  upon  him  to  deliver  the  same  according  to  the  owners'  directions. 
There  is  no  question  that  in  this  case  the  directions  of  the  owners,  the  plaintiffs,  were 
to  deliver  this  money  at  the  bank,  at  173  Canal  Street,  to  the  officers  of  the  bank.  It 
was  held  in  Hyde  v.  Trent  and  Jersey  Navigation  Company  (5  T.  R.,  389 [5961  I,  that 
a  delivery  to  a  porter  at  an  inn,  to  carry  to  the  consignee,  did  not  discharge  the 
carrier.  That  the  goods  continued  at  the  risk  of  the  carrier  until  a  personal  deli 
at  the  house  or  place  of  deposit  of  the  consignee,  and  that  the  porter  to  whom  the 
package  was  delivered,  was  the  servant  of  the  carrier.     It  would  follow  in  th 


672  CARRIEKS   OF   GOODS. 

BAILEY  v.    HUDSON   RIVER   R.    CO. 

49  N.  Y.  70.     1872. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiffs  entered  upon  a  verdict. 

Action  for  the  conversion  of  eleven  cases  of  dry  goods. 

Church,  C.  J.  It  is  undisputed  that  Alden,  Friuk  &  Weston 
delivered  the  goods  in  question  to  the  defendant,  to  be  transported 
by  them  to  the  plaintiffs;  that  they  were  consigned  to  the  plaintiffs, 
and  the  packages  properly  marked  with  the  name  of  the  plaintiffs' 
firm,  and  the  defendant  gave  a  receipt  for  the  same,  agreeing  to 
deliver  the  goods  safely  to  the  plaintiffs  at  the  city  of  New  York. 
It  is  also  undisputed  that  the  plaintiffs  had  made  a  specific  advance 
upon  a  portion  of  the  goods,  and  the  remainder  were  shipped  in 
pursuance  of  an  agreement  between  the  plaintiffs  and  Alden,  Frink 
&  Weston,  to  pay  for  money  borrowed  by  the  latter  of  the  former  a 
few  days  previous,  and  that  invoices  of  all  the  goods,  stating  the 
consignment  and  shipment  by  the  defendant's  railroad,  had  been 
forwarded  to  the  plaintiffs  by  mail.  This  was  substantially  the 
condition  of  things  on  the  17th  of  October,  when  one  of  the  members 
of  the  firm  of  Alden,  Frink  &  Weston,  for  his  individual  benefit, 
but  in  the  name  of  his  firm,  changed  the  destination  of  the  goods, 
and  the  defendant  delivered  them  in  pursuance  of  such  changed 
destination  to  another  person.  The  question  is  whether  the  title 
had  vested  in  the  plaintiffs.  I  think  it  had.  It  is  clear  that  the 
consignors  delivered  the  goods  to  the  carrier  for  the  plaintiffs  in 

case  that  Messenger,  the  porter  to  whom  the  defendants  delivered  the  package  in  this 
instance,  is  to  be  regarded  as  the  servant  of  the  defendants.  Prima  facie,  the  carrier 
is  under  an  obligation  to  deliver  the  goods  to  the  consignee  personally  at  the  place  of 
delivery.  Custom  of  so  general  and  universal  a  character  as  may  warrant  the  sup- 
position that  .the  parties  contracted  with  reference  to  it,  may  be  proven  to  vary  the 
manner  of  the  delivery  ;  or  the  place  and  manner  of  the  delivery  may  be  varied  by  the 
assent  of  the  owner  of  the  property  ;  and  where  he  interferes  to  control  or  direct  in 
the  matter,  he  assumes  the  responsibility.  Edwards  on  Bail.,  pp.  515,  519.  In  this 
case  no  general  or  universal  custom  changing  the  carrier's  legal  liability,  of  such  a 
character  as  that  we  may  presume  the  parties  to  have  contracted  in  reference  to  it,  was 
shown  or  pretended.  Neither  was  it  alleged  that  the  owners,  the  plaintiffs,  had  by 
their  assent  in  any  manner  varied  the  carrier's  legal  liability,  or  interfered  in  any  way 
with  the  delivery  or  had  any  knowledge  of  the  practice  of  the  defendants  in  making 
deliveries  different  from  that  contained  in  the  direction  or  contract,  or  had  given  any 
consent  to  any  other  delivery  or  to  any  change  of  the  legal  liabilities  assumed  by  the 
carrier  on  receipt  of  the  package.  The  arrangement  alleged  to  be  made  between  the 
defendants  and  the  bank  or  its  officers,  by  which  a  different  delivery  was  made  than 
that  embraced  in  the  contract  with  the  plaintiffs,  can  therefore  have  no  binding  effect 
upon  the  plaintiffs,  or  in  any  manner  impair  or  affect  their  rights. 


DELIVERY   BY    CARRIER.  673 

compliance  with  their  contract  to  do  so.  The  parol  contract  was 
thereby  executed,  and  the  title  vested  in  the  plaintiffs.  The  plain- 
tiffs occupied  the  legal  position  of  vendees  after  having  paid  the 
purchase-money  and  received  the  delivery  of  the  goods.  But  it  is 
unnecessary,  in  order  to  uphold  this  judgment,  to  maintain  that  the 
plaintiffs  occupied  strictly  the  relation  of  vendees.  The  legal  rights 
of  the  vendee  attach  when  goods  are  shipped  to  a  commission  n 
chant,  who  has  made  advances  upon  them  in  pursuance  of  an  agree- 
ment between  the  parties.  Such  an  agreement  may  be  either  inferred 
from  the  circumstances  or  shown  by  express  contract.  Holbrook  /•. 
Wight,  24  Wend.  169;  Haille  v.  Smith,  1  Bos.  &  Pul.  503.  In  the 
latter  case,  Eyre,  J.,  said:  "From  the  moment  the  goods  were  set 
apart  for  this  particular  purpose,  why  should  we  not  hold  the  prop- 
erty in  them  to  have  changed,  it  being  in  perfect  conformity  to  the 
agreement  and  such  an  execution  thereof  as  the  justice  of  the  case 
requires  ?  "  The  same  principle  has  been  repeatedly  adopted.  Gros- 
venor  v.  Phillips,  2  Hill,  147. 

It  must  appear  that  the  delivery  was  made  with  the  intent  to 
transfer  the  property.  Until  this  is  done  the  parol  agreement  is 
executory,  the  title  remains  in  the  consignor,  and  he  has  the  power 
to  transfer  the  property  to  whomsoever  he  pleases,  and  render  him- 
self liable  for  the  non-performance  of  the  contract.  It  is  urged  by 
the  counsel  for  the  defendant  that  no  bill  of  lading  was  forwarded 
or  delivered  to  the  plaintiff's,  and  that  until  this  was  done  the  title 
remained  in  the  consignors.  This  is  undoubtedly  true  in  mai iy 
cases;  but  it  is  mainly  important  in  characterizing  the  act  of  the 
shipper,  and  showing  with  what  purpose  and  intent  the  goods  were 
delivered  to  the  carrier.  If  A  has  property,  upon  which  he  has 
received  an  advance  from  B  upon  an  agreement  that  he  will  ship  it 
to  B  to  pay  the  advance  or  to  pay  any  indebtedness,  he  may  or  may 
not  comply  with  his  contract.  He  may  ship  it  to  C  or  he  may  ship 
it  to  B  upon  conditions.  As  owner  he  can  dispose  of  it  as  he  pleases. 
But  if  he  actually  ships  it  to  B  in  pursuance  of  his  contract,  the 
title  vests  in  B  upon  the  shipment.  The  highest  evidence  that  he 
has  done  so  is  the  consignment  and  unconditional  delivery  to  B  of 
the  bill  of  lading.  If  the  consignor  procures  an  advance  upon  the 
bill  of  lading  from  a  third  person,  or  delivers  or  indorses  the  bill 
of  lading  to  a  third  person  for  a  consideration,  it  furnishes  equally 
satisfactory  evidence  that  the  property  was  not  delivered  to  the 
consignee,  for  the  simple  reason  that  it  was  delivered  to  some  one 
else.  But  I  apprehend  that  if  a  consignor  who  had  such  an  agree- 
ment retained  in  his  own  possession  a  duplicate  of  the  bill  of  lading, 
and  notified  the  consignee  by  letter  that  he  had  shipped  the  property 
for  him  in  pursuance  of  the  agreement,  or  in  any  other  manner  the 
intention  thus  to  ship  it  was  evinced,  the  title  would  pass  as  ei 
tually,  as  between  them,  as  if  he  had  forwarded  the  bill  of  lading. 
The  question  whether  a  subsequent  indorsee  of  the  bill  of  lading  for 


674  CARRIEKS    OF    GOODS. 

a  valuable  consideration  could  acquire  any  rights  against  the  con- 
signee, is  not  involved.  As  against  the  consignor  the  delivery  of 
the  property  to  the  carrier,  with  intent  to  comply  with  his  contract, 
vests  the  title  in  the  consignee.  It  is  largely  a  question  of  inten- 
tion. In  Mitchell  v.  Ide,  39  C.  S.  It.  260,  cited  by  the  defendants, 
Lord  Denman  said:  "The  intention  of  Mackenzie  to  transfer  the 
property  to  the  plaintiff  is  unquestionable,  and  we  think  that  under 
the  circumstances  he  has  carried  that  intention  into  effect."  And 
in  the  Bank  of  Eochester  v.  Jones,  4  N.  Y.  501,  this  court  said: 
"When  the  bill  of  lading  has  not  been  delivered  to  the  consignee, 
and  there  is  no  other  evidence  of  an  intention  on  the  part  of  the  con- 
signor to  consign  the  specific  property  to  him,  no  lien  will  attach." 
In  that  case  the  bill  of  lading  was  not  only  not  sent  to  the  consignee, 
but  was  transferred  to  the  plaintiffs,  and  money  borrowed  upon  it, 
and  there  was  no  evidence  of  an  intention  to  consign  the  flour  to  the 
defendant  except  upon  the  condition  of  paying  the  money  so  bor- 
rowed. It  should  be  observed  also  that  in  that  case  there  was  no 
agreement  to  consign  the  property  to  the  defendant  as  security,  or 
in  payment  of  the  indebtedness  due  him  from  the  consignor.  Such 
an  agreement,  either  express  or  implied,  is  important,  although  not 
conclusive,  in  showing  the  intent  with  which  the  act  was  done.  In 
this  case  there  was  no  other  bill  of  lading  than  the  receipt  produced 
in  evidence,  and  no  duplicate  was  taken;  but  the  intention  of  Alden, 
Frink  &  Weston  to  transfer  this  specific  property  to  the  plaintiffs, 
to  be  applied  upon  their  indebtedness,  conclusively  appears  by  the 
undisputed  evidence.  1.  By  the  agreement  the  day  prior  to  the 
shipment.  2.  By  forwarding  invoices  of  the  shipment  to  the  plain- 
tiffs. 3.  By  making  the  shipment  unconditionally.  4.  By  retain- 
ing the  receipt  given  by  the  defendant,  and  neither  making  nor 
attempting  to  make  any  use  of  it. 

These  acts  were  so  unequivocal  of  an  intention  to  transfer  the 
property  to  the  plaintiffs  that  there  remains  no  room  for  doubt.  The 
moment  these  acts  were  done,  the  title  vested  in  the  plaintiffs,  and 
the  consignors  were  powerless  to  interfere  with  the  property. 

The  recent  case  of  the  Cayuga  County  National  Bank  v.  Daniels 
(not  reported)  was  decided  against  the  consignees  upon  the  distinc- 
tion above  referred  to.  It  was  held  in  that  case  that  the  consignors 
did  not  deliver  the  property  to  the  carrier  with  the  intention  to  vest 
the  title  in  the  defendants,  except  upon  condition  of  paying  a  draft 
discounted  by  the  plaintiffs,  and  that  the  bill  of  lading  was  delivered 
upon  that  condition,  and  that  on  the  defendants'  refusal  to  comply 
with  the  condition  they  acquired  no  right  or  title  to  the  property, 
and  that  the  case  therefore  came  within  the  principle  of  the  Bank  of 
Eochester  v.  Jones,  supra.  Here  the  intention  to  vest  the  title  is 
clear  and  plain.  It  is  urged  that  the  words  "on  our  account,"  in 
the  invoices,  evinced  an  intention  not  to  vest  the  title  in  the  plain- 
tiffs.    They  can  have  no  such  effect  in  this  case,  even  if  standing 


DELIVERY    BY   CARRIER. 

alone  and  unexplained  they  might  have.     A  bill  of  lading  for  wh 
as  between  the  parties,  the  invoices  were  a  substitute,  can  ah. 
be  explained  by  parol.     It  may  be  shown  by  parol  to  hav< 
intended  as   evidence  of  an   absolute  sale,  a  trust,  a  mort 
pledge,  a  lien,  or  a  mere  agency.     2  Hill,   151;  4  N.    Y.   501,   and 
cases  cited.     The  actual  agreement  and  transaction  will  prevail,  and 
it  was  proved  by  two  of  the  members  of  the  firm,   and   uncontra- 
dicted, that  the  goods  were,   in  fact,   shipped  in  pursuance  of  the 
agreement.     Besides,  these  words  are   not  necessarily  inconsistent 
with  the  agreement.    The  goods  were  not  purchased  absolutely  by  tin- 
plaintiffs  at  a  specified  price,  but  were  to  be  sold  and  tin-  avails  ap- 
plied.   The  relation  of  the  plaintiffs  was  more  nearly  that  of  trusl 
having  the  title,  and  bound  to  dispose  of  the  property  and  apply  the 
proceeds  in  a  particular  manner,  and  the  consignors  were  the  cestui* 
que  trust,  having  the  legal  right  to  enforce  the  terms  of  the  agree- 
ment for  their  benefit.     In  this  sense  the  property  was  shipped  on 
their  account,  and  the  agreement  is  consistent  with  the  meaning  of 
those  words.    The  Statute  of  Frauds  has  no  application.    1st.     There 
was  no  sale.     2d.    If  there  was,  the  consideration  was   paid.     3d. 
The  property  was  specified  when  the  agreement  was  made  as  being 
that  which  had  been  and  was  then  being  shipped,  and  the  plaint i Its 
agreed   to   accept   that   particular    property,    and    the    subsecpient 
delivery  to  the  carrier  agreed  upon  was  in  legal  effect  a  delivery  to 
the  plaintiffs.     Cross  v.  O'Donnell,  44  N.  Y.  661;  Stafford  v.  Webb, 
Lalor's  Sup.,  217. 

The  defendant  is  liable  for  a  conversion  of  the  property.  It  had 
receipted  the  property  and  agreed  to  transport  safely,  and  deliver 
it  to  the  plaintiffs.  Instead  of  complying  with  its  contract,  it 
delivered  the  property  to  another  person  by  the  direction  of  one  who 
had  no  more  legal  authority  over  the  property  than  a  stranger,  with- 
out the  return  even  of  its  receipt.  The  plaintiffs  had  vested  rights 
which  the  defendant  was  bound  to  respect,  and  with  a  knowledge  of 
which  it  was  legally  chargeable.  4.~>  N.  Y.  49;  6  Hill,  586;  24 
Wend.  169;  Story  on  Bailment,  414;  31  X.  Y.  490.  It  was  its  duty 
to  deliver  the  property  to  the  real  owner.     45  N.  Y.  .'54. 

Judgment  affirmed  with  costs. 


ARMENTROUT  v.    ST.    LOUIS   K.    C.    &  N.    R.    CO. 

1  Mo.  App.  158.     187G. 

Blackwell,  J.  Plaintiff  sues  defendant,  a  common  carrier,  for 
breach  of  contract  of  affreightment,  in  not  fulfilling  its  undertaking 
with  plaintiff  that  it  would  securely  keep  and  safely  carry  over  its 
road,  from  Ottumwa,  Iowa,  to  St.  Louis,  Missouri,  and  in  reason- 
able  time  securely  deliver   to  plaintiff's   agent,    in   St.    Louis,   100 


676  CARRIERS   OF    GOODS. 

boxes  of  eggs,  whereby  said  eggs  were  totally  lost  to  plaintiff,  as  he 
alleges,  to  his  damage  $2,000. 

The  case  was  tried  by  the  court,  a  jury  being  waived  upon  the 
following  agreed  statement  of  facts. 

Plaintiff  bought  the  100  boxes  of  eggs  in  question  of  McCullough 
&  Lilburn,  at  Ottumwa,  Iowa,  at  the  price  of  $1,528.04;  he  paid  $10 
in  cash,  and  agreed  with  McCullough  &  Lilburn  that  for  the  balance 
of  the  purchase  price  they  should  draw  against  the  shipment  on 
Bussy  &  Co.,  at  St.  Louis,  with  the  bill  of  lading,  or  receipt  therefor 
of  defendant,  attached;  of  all  which  defendant  had  no  knowledge. 

Bussy  &  Co.  were  the  commission  merchants  of  plaintiff,  to  sell 
said  eggs  for  plaintiff's  account  on  arrival,  and  had  no  other  interest 
in  said  eggs  or  the  proceeds. 

That  on  November  25,  1872,  McCullough  &  Lilburn  accordingly 
delivered  said  eggs  to  defendant  at  Ottumwa,  Iowa,  and  took  its  bill 
of  lading,  or  receipt,  therefor,  which  is  on  file  in  this  cause,  and 
may  be  read  in  evidence  by  plaintiff. 

That  thereupon  George  McCullough,  one  of  the  firm  of  McCullough 
&  Lilburn,  requested  defendant  to  hold  said  eggs  until  ordered  by 
them  to  be  sent  forward,  the  particulars  of  that  transaction  being 
set  forth  in  an  affidavit  of  one  Phillipps,  as  follows :  — 

"  On  the  morning  of  November  25,  1872,  George  McCullough  came 
to  my  office,  in  Ottumwa,  and  requested  bill  of  lading  for  100  boxes 
of  eggs,  to  be  shipped  to  Bussy  &  Co.,  St.  Louis,  and  not  load  till 
following  day.  This  I  refused.  The  eggs  were  loaded  the  same 
day,  November  25th,  and  George  McCullough  requested  car  to  be 
held  at  their  risk  until  draft  was  accepted.  Afternoon  of  November 
27th  he  gave  order  to  forward  car,  which  was  done  on  first  train, 
morning  of  28th,  a.m.,  car  798." 

This  request  to  hold  and  agreement  to  take  all  risk  was  made 
verbally. 

That  on  November  25,  1872,  said  McCullough  &  Lilburn  drew 
their  draft  on  Bussy  &  Co.,  for  said  sum  of  $1,518.04,  with  said  bill 
of  lading,  or  receipt,  attached;  that  the  same,  with  bill  of  lading, 
or  receipt,  attached,  were  presented  to  Messrs.  Bussy  &  Co.,  for  ac- 
ceptance, on  November  27,  1872,  and  the  draft  was  by  them  accepted, 
and  paid  by  them  on  November  30,  1872,  and  charged  to  account  of 
plaintiff,  as  plaintiff  and  Bussy  &  Co.  had  agreed  it  should  be,  and 
said  draft  is  annexed  hereto,  and  may  be  read  in  evidence  herein. 

That  on  November  28,  1872,  McCullough  &  Lilburn  directed 
defendant  to  forward  the  eggs  to  the  consignees,  Bussy  &  Co.,  at 
St.  Louis,  and  it  was  at  once  done.  They  arrived  at  St.  Louis  at 
10  a.m.,  on  Sunday,  December  1st,  being  a  reasonable  time  after 
being  forwarded,  and  notice  of  their  arrival  was  given  to  Bussy  & 
Co.  on  Monday,  December  2d,  as  soon  as  could  be  done  after  their 
arrival;  and  that  three  days  is  ample,  and  the  usual  time  for  freight 
to  be  carried  from  Ottumwa  to  St.  Louis. 


DELIVERY   BY   CAEKIEE.  677 

That  Bussy  &  Co.  had  sold  said  eggs,  to  arrive  on  November  30th, 
at  the  price  of  $1,641.78,  but,  owing  to  the  eggs  having  been  frozen, 
they  were  sold  to  the  best  advantage,  for  $1,156.02;  the  said  j 
of  $1,641.78  being  the  usual  and  market  price  thereof  in  St.  Louis, 
and  said  sale  being  lost  because  the  eggs  were  so  frozen. 

That  said  eggs  were  so  frozen  because  of  the  extreme  cold  weather 
on  the  route,  and  they  would  not  have  been  frozen  if  sent  forward 
on  November  25,  1872. 

That  defendant  had  no  knowledge  of  the  interest  of  any  one  in  the 
eggs,  other  than  that  of  the  consignor,  except  that  shown,  it'  any, 
by  the  receipt,  or  bill  of  lading,  and  by  the  affidavit  of  Phillipps. 

That  plaintiff,  by  his  commission  merchants,  Bussy  &  Co.,  con- 
signees, paid  defendant  the  freight,  $64,  on  said  shipment,  on  its 
arrival  in  St.  Louis. 

The  bill  of  lading  is  in  the  usual  form,  and  sets  forth  that,  on 
November  25,  1872,  the  date  of  the  bill,  there  was  received,  in  good 
order,  at  Ottumwa,  by  defendants,  from  McCullough  &  Lilburn,  to 
be  delivered  to  Messrs.  Bussy  &  Co.,  at  16  South  Commercial  Street, 
St.  Louis,  Missouri,  100  boxes  of  eggs,  marked  "M.  &  L.,  Ottumwa, 
Iowa,  for  Bussy  &  Co.,  St.  Louis,  Missouri." 

The  court  found  for  defendant.  Plaintiff  duly  excepted;  and, 
his  motion  for  a  new  trial  being  overruled,  the  case  is  brought  here 
by  appeal. 

On  this  statement  of  facts  the  plaintiff  was,  in  our  opinion, 
entitled  to  recover.  The  delivery  to  the  defendant,  under  the  cir- 
cumstances stated,  vested  the  goods  in  the  consignee;  the  defendant 
was  from  that  moment  liable  to  plaintiff,  and  its  liability  was  that 
of  a  common  carrier,  and  not  that  of  a  warehouseman.  The  goods 
were  injured  by  an  exposure  which  would  not  have  occurred  had  the 
goods  been  forwarded  without  delay;  and  the  delay  which  occasioned 
the  damage  was  wholly  unauthorized  by  the  consignee,  or  his  agent, 
and  occurred  at  the  direction  or  suggestion  of  a  third  party  who  had 
no  legal  right  whatever  to  control  the  goods. 

These  principles  may  be  taken  to  be  now  well  settled,  and  it  is 
too  late  to  attempt  to  change  them.  They  are  also  consonant  with 
common-sense  and  the  recognized  customs  of  trade  in  this  country. 
A  bill  of  lading  is  taken  by  the  consignor.  It  is  a  statement  of  the 
carrier  to  the  effect  that  he  has  received  a  certain  weight  or  quantity 
of  a  certain  description  of  merchandise,  to  be  forwarded  with  all 
reasonable,  despatch  to  a  certain  person  named  in  the  bill.  To  this 
bill  of  lading  is  attached,  as  in  this  instance,  a  draft  on  the  con- 
signee for  the  value  of  the  goods,  which  is  forwarded  by  the  ship 
to  his  agent  at  the  point  of  consignment,  for  presentation  to  tin- 
consignee  for  acceptance  and  payment.  This  draft  and  bill  of  lad- 
ing attached  arrive,  in  the  course  of  mail,  before  the  goods,  and  are 
the  assurance  of  the  consignee  that  the  goods  are  on  the  way.  On 
the  faith  of  the  bill  of  lading  he  accepts  and  pays  the  draft.     It  is. 


678  CAKRIERS    OF    GOODS. 

therefore,  conclusive  on  the  carrier  as  to  persons  who  have  acted  on 
the  faith  of  his  contract,  and  he  will  not  be  allowed  to  modify  it 
without  their  consent.  Any  other  rule  would  be  destructive  of  com- 
merce. What  commissiou  merchant  would  be  safe  in  accepting 
drafts  drawn  against  shipments ;  what  bank  would  take  bills  of  lad- 
ing as  collaterals,  and  make  the  necessary  advance  upon  them,  if 
the  shipper,  at  will,  could  forward  the  bill  of  lading  and  detain 
the  goods?  If  the  carrier,  in  this  instance,  could  have  detained  the 
goods  at  the  request  of  the  consignor,  after  the  bill  of  lading  was 
out,  until  the  draft  was  heard  from,  he  might,  with  equal  safety  to 
himself,  have  given  back  the  goods  to  the  shipper  after  the  accept- 
ance of  the  draft  by  the  consignee.  The  vendor,  in  the  case  stated, 
had  no  such  rights  over  these  goods  as  he  attempted  to  exercise. 
From  the  moment  they  were  received  by  the  carrier  he  parted  with 
all  right  to  control  them  in  any  way,  except  the  right  to  stop 
them,  before  they  reached  their  destination,  in  the  sole  case  of  the 
insolvency  of  the  consignee. 

There  was  something  said  in  argument  as  to  this  being  a  case  of 
injury  by  the  act  of  God.  The  severe  cold  which  injured  the  eggs 
could  not  have  been  prevented,  nor,  perhaps,  foreseen,  by  man;  but, 
if  the  carrier  had  done  his  duty,  the  goods  would  have  arrived  at 
their  destination  before  the  frost.  The  carrier  is  liable  for  a  loss 
arising  from  an  inevitable  necessity  existing  at  the  time  of  the  loss, 
if  guilty  of  previous  misconduct  or  negligence  by  which  the  exposure 
which  resulted  in  the  loss  was  occasioned. 

For  the  reason  stated  the  judgment  of  the  court  below  must  be 
reversed.  But,  inasmuch  as  every  fact  necessary  to  a  final  judgment 
in  favor  of  plaintiff  would  appear  to  be  fully  set  out  in  the  agreed 
statement  of  facts,  it  does  not  seem  necessary  to  remand  the  cause 
for  a  new  trial,  and  we  accordingly  give  judgment  here  for  plaintiff 
for  $721,  being  the  difference  between  the  amount  for  which  the 
eggs  were  sold  to  best  advantage,  on  their  arrival,  and  the  sale 
which  was  lost  by  the  default  of  defendant,  after  adding  thereto 
interest  from  the  date  of  the  commencement  of  the  suit  to  the  entry 
of  judgment  here.     The  other  judges  concur. 


McENTEE   v.  NEW   JERSEY   STEAMBOAT  CO. 
45  N.  Y.  34.     1871. 

Action  for  the  conversion  of  goods,  brought  by  McEntee  against 
the  New  Jersey  Steamboat  Company.  It  appeared  that  defendant, 
as  common  carriers,  received  in  1868 ,  at  Albany,  several  bundles  of 
sash  and  blinds  from  one  Sayer,  addressed  to  "McEntee,"  New 
York.     The  goods  having  reached  their  destination,  a  demand  was 


DELIVERY    BY    CARRIES.  679 

made  by  plaintiff  upon  defendant,  who  refused  to  deliver  them,  upon 
tender  of  charges.  There  was  conflicting  evidence  I  i  what  the 
form  of  the  refusal  was;  but  defendant  introduced  testimony  tend- 
ing to  show  that  a  delivery  was  offered  on  condition  that  plaintiff 
would  produce  any  paper  showing  ownership  or  authority  to  rec< 
the  goods,  or  his  identity  as  the  consignee.  The  judge  ruled  that 
the  only  question  for  the  jury  was  whether  freight-money  was  ten- 
dered, and  charged  that,  under  the  circumstances,  the  company  was 
authorized  to  deliver  the  goods  to  any  person  calling  for  them;  and 
that  common  carriers  are  not  responsible  for  wrong  delivery,  and 
therefore  had  no  right  to  insist  upon  any  person  proving  ownership. 
Verdict  was  rendered  for  plaintiff,  and  judgment  thereon  affirmed 
at  general  term.  An  appeal  was  taken  by  defendant  to  this 
court. 

Allen,  J.  The  defendants  were  charged  for  the  conversion  of 
the  goods  upon  evidence  of  a  demand  and  a  refusal  to  deliver  them. 
If  the  demand  was  by  the  person  entitled  to  receive  them,  and  a 
refusal  to  deliver  was  absolute  and  unqualified,  the  conversion  was 
sufficiently  proved,  for  such  refusal  is  ordinarily  conclusive  evidence 
of  a  conversion ;  but,  if  the  refusal  was  qualified,  the  question  v. 
whether  the  qualification  was  reasonable:  and  if  reasonable  and  made 
in  good  faith,  it  was  no  evidence  of  a  conversion.  Alexander  r, 
Southey,  5  B.  &  Aid.  247;  Holbrook  v.  Wight,  24  Wend.  169; 
Rogers  w.  Weir,  34  N.  Y.  463;  Mount  v.  Derick,  5  Hill,  455.  If, 
at  the  time  of  the  demand,  a  reasonable  excuse  be  made  in  good 
faith  for  the  non-delivery,  the  goods  being  evidently  kept  with  a 
view  to  deliver  them  to  the  true  owner,  there  is  no  conversion. 

This  action  is  not  upon  the   contract  of  the  carriers,  but   for  a 
tortious  conversion  of  the  property;    but  the  rights   and  duties 
the  defendants  as  carriers  are,   nevertheless,   involved. 

The  defendants  were  bailees  of  the  property,  under  an  obligation 
to  deliver  it  to  the  rightful  owner.  They  would  have  been  liable 
had  they  delivered  the  goods  to  the  wrong  person.  Common  car- 
riers deliver  property  at  their  peril,  and  must  take  care  that  it  is 
delivered  to  the  right  person,  for  if  the  delivery  be  to  the  wrong 
person,  either  by  an  innocent  mistake  or  through  fraud  of  third 
persons,  as  upon  a  forged  order,  they  will  be  responsible,  and  the 
wrongful  delivery  will  be  treated  as  a  conversion.  Hawkins  v. 
Hoffman,  6  Hill,  586;  Powell  v.  Myers.  26  Wend.  290;  Devereux 
v.  Barclay,  2  B.  &  Aid.  702;  Guillaume  v.  Hamburgh  and  Am. 
Packet  Co.,  42  N.  Y.  212;  Duff  v.  Budd,  .">  Brod.  and  Bing.  177. 
The  duties  of  carriers  may  be  varied  by  the  differing  circumstances 
of  cases  as  they  arise;  but  it  is  their  duty  in  all  cases  to  he  diligent 
in  their  efforts  to  secure  a  delivery  of  the  property  to  the  person 
entitled,  and  they  will  be  protected  in  refusing  delivery  until  reason- 
able evidence  is  furnished  them  that  the  party  claiming  is  the  party 
entitled,  so  long  as  they  act  in  good  faith  and  solely  with  a  view  to 


680  CARRIERS    OF    GOODS. 

a  proper  delivery.  The  circumstances  of  this  case,  the  very  defec- 
tive address  of  the  parcels,  and  the  omission  of  the  plaintiff  to  pro- 
duce any  evidence  of  title  to  the  property  or  identifying  him  as 
the  consignee,  justified  the  defendants  in  exercising  caution  in  the 
delivery,  and  it  should  have  been  submitted  to  the  jury  whether 
the  refusal  was  qualified,  as  alleged  by  the  defendants;  and  if  so, 
whether  the  qualification  was  reasonable,  and  was  the  true  reason 
for  not  delivering  the  goods.  The  judge  also  erred  in  his  instruc- 
tions to  the  jury  as  to  the  duty  of  the  defendants,  as  common  car- 
riers, in  the  delivery  of  goods.  They  may  not  properly,  or  without 
incurring  liability  to  the  true  owner,  deliver  goods  to  any  person 
who  calls  for  them,  other  than  the  rightful  owner.  The  judgment 
must  be  reversed  and  a  new  trial  granted,  costs  to  abide  event. 


c.    Delivery  to  Holder  of  Bill  of  Lading. 

PENNSYLVANIA  R.    CO.    v.    STERN   &   SPIEGEL. 
119  Penn.  St.  24.     1888. 

Mr.  Justice  Paxsost.  The  only  error  assigned  is  to  the  charge  of 
the  court.  It  was  in  substance  that  the  defendant  company  could 
only  deliver  the  merchandise  upon  the  production  of  the  bill  of  lad- 
ing, and  that  as  there  was  nothing  to  excuse  delivery  without  a 
compliance  with  the  terms,  the  jury  should  find  for  the  plaintiffs. 

We  see  no  error  in  this.  The  plaintiffs  shipped  this  car-load  of 
dry  bones  from  Bay  City,  Michigan,  to  Landenburg,  Chester  Co., 
Penn.,  consigned  to  themselves.  At  the  same  time  they  drew  on 
Whann  for  the  amount,  at  forty-five  days.  There  was  a  bill  of  lad- 
ing attached  to  the  draft  showing  that  Stern  &  Spiegel, /the  shippers, 
had  consigned  said  car  to  themselves.  The  letter  of  the  latter  to 
Whann,  and  the  invoice,  both  of  which  were  shown  to  the  agent  of 
the  defendant  company  at  Landenburg,  were  notice  that  there  was  a 
draft  and  bill  of  lading,  and  that  Whann  was  required  to  protect  the 
draft.  The  agent  delivered  the  car  to  Whann  without  the  bill  of 
lading,  and  without  an  acceptance  of  the  draft.  This  he  had  no 
right  to  do.  The  title  to  the  property  remained  in  the  consignors 
until  delivery  in  accordance  with  the  conditions.  Bills  of  lading 
are  symbols  of  property,  and  when  properly  indorsed  operate  as  a 
delivery  of  the  property  itself,  investing  the  indorsers  with  a  con- 
structive custody,  which  serves  all  the  purposes  of  an  actual  posses- 
sion, and  so  continues  until  there  is  a  valid  and  complete  delivery 
of  the  property  under  and  in  pursuance  of  the  bill  of  lading,  and  to 
the  persons  entitled  to  receive  the  same :  Hieskell  v.  National  Bank, 


DELIVERY   BY   CARRIER.  Qgl 

91  U.  S.   618.     There  could  be  no  delivery  except  in  accordance 
with  the  bill  of  lading.     Dows  v.  Milwaukee  Bank,  91  U.  S.  • 
Stollenwerck   v.  Thatcher,   115   Mass.  224.     The  invoice   standing 
alone   furnishes    no   proof   of   title:  Benjamin    on   Sales,   sec. 
Dows  v.  Milwaukee  Bank,  supra. 

It  was  argued,  however,  that  there  was  a  course  of  dealing  be- 
tween the  parties  that  would  take  the  case  out  of  the  rule  above 
stated.  The  attention  of  the  court  below  does  not  appear  to  have 
been  called  to  this  matter  upon  the  trial.  No  reference  to  it  is  to 
be  found  in  the  charge,  nor  was  any  point  submitted  which  would 
call  it  forth.  There  was  evidence  that  the  defendant  company  had 
on  more  than  one  occasion  delivered  goods  from  the  shippers  to 
Whann  prior  to  the  acceptance  of  the  drafts.  No  harm  came  of  this 
because  the  drafts  were  afterwards  accepted  and  paid.  But  this 
course  of  dealing  between  the  company  and  Whann  was  not  brought 
home  to  the  knowledge  of  the  plaintiffs  in  a  way  that  would  justify 
the  jury  in  finding  that  they  had  acquiesced  in  such  an  arrangement, 
and  that  they  had  consented  to  the  delivery  of  this  particular  car- 
load without  the  production  of  the  bill  of  lading  and  acceptance  of 
the  draft.  The  company  delivered  in  their  own  wrong  and  assumed 
the  risk. 

Nor  can  we  say  as  matter  of  law  that  plaintiffs  suffered  no  loss  by 
reason  of  the  improper  delivery.  If  the  draft  had  been  accepted  it 
might  have  been  paid,  notwithstanding  the  failure  of  Whann,  or  the 
plaintiffs  might  have  sold  it  without  recourse. 

Judgment  affirmed.1 


WEYAND  v.    ATCHISON,  T.    &   S.    F.   R.    CO. 

75  Iowa,  573.     1888. 

This  is  an  action  aided  by  attachment,  brought  to  recover  the  value 
of  a  quantity  of  canned  goods,  shipped  by  the  Elgin,  Iowa,  Canning 
Company  to  Pueblo,  Colorado,  and  alleged  to  have  been  delivered 

1  It  is  no  excuse  for  a  delivery  to  the  wrong  persons  that  the  indorsee  of  the  bills 
of  lading  was  unknown,  if  indeed  he  was,  and  that  notice  of  the  arrival  of  the  [gno.is] 
could  not  be  given.  Diligent  inquiry  for  the  consignee,  at  least,  was  a  duty,  and  no 
inquiry  was  made.  Want  of  notice  is  excused  when  a  consignee  is  unknown,  or  is 
absent,  or  cannot  be  found  after  diligent  search.  Fisk  v.  Newton,  1  Denio,  !.">  ; 
Peytona,  2  Curtis,  21.  And  if,  after  inquiry,  the  consignee  or  the  indorsee  of  a  bill  of 
lading  for  delivery  to  order  cannot  be  found,  the  duty  of  the  carrier  is  to  retain  the 
goods  until  they  are  claimed,  or  to  store  them  prudently  for  and  on  account  of  their 
owner.  He  may  thus  relieve  himself  from  a  carrier's  responsibility.  Calloway  v. 
Hughes,  1  Bailey,  553;  1  (Jonklin's  Admiralty,  196  ;  Fisk  v.  Newton,  supra.  H 
no  right  under  any  circumstances  to  deliver  to  a  stranger.  Justice  Strong,  in  The 
Thames,  14  Wall.  98. 


682  CARRIERS    OF    GOODS. 

to  a  person  not  entitled  to  receive  the  same,  through  the  fault  of 
defendant.  The  cause  was  tried  to  the  court,  and  a  judgment  ren- 
dered in  favor  of  the  plaintiff  for  the  amount  admitted  to  be  the 
value  of  the  goods  in  controversy,  and  sustaining  the  attachment. 
Defendant  appeals.  On  the  first  submission  of  this  cause  a  decision 
was  rendered  by  this  court  reversing  the  judgment  of  the  Superior 
Court.  A  rehearing  was  ordered  on  the  petition  of  appellee,  and 
the  cause  again  submitted. 

Kobinson,  J.  Plaintiff  is  the  trustee  of  the  Elgin,  Iowa,  Can- 
ning Company.  Defendant  is  a  corporation  organized  and  existing 
under  the  laws  of  the  State  of  Kansas,  and  engaged  in  operating  a 
line  of  railway  from  Kansas  City  through  the  States  of  Kansas  and 
Colorado,  and  to  the  city  of  Pueblo,  in  the  last-named  State.  At 
the  time  this  cause  was  tried  in  the  court  below,  defendant  had  never 
owned  nor  operated  any  railway  within  the  State  of  Iowa.  In 
October,  1884,  one  Evans,  of  Pueblo,  ordered  of  the  canning  com- 
pany the  goods  in  controversy.  Not  being  acquainted  with  Evans, 
and  not  wishing  to  sell  the  goods  on  credit,  it  delivered  them, 
marked  and  consigned  to  itself  at  Pueblo,  to  a  railway  company  at 
Elgin,  Iowa.  From  that  company  the  canning  company  took  two 
receipts  or  bills  of  lading,  which  were,  in  fact,  duplicates,  but  neither 
showed  that  the  other  had  been  issued.  The  canning  company  drew 
a  draft  on  Evans,  through  a  bank  in  Pueblo,  for  the  price  of  the 
goods,  and  sent  to  the  bank  an  order  on  defendant  to  deliver  the 
goods  to  Evans.  The  draft  and  order  were  sent  together  to  the  bank, 
with  instructions  to  deliver  the  order  to  Evans  upon  payment  by  him 
of  the  draft.  At  the  same  time  the  canning  company  sent  to  Evans 
one  of  the  bills  of  lading,  instructing  him  that  the  goods  had  been 
shipped,  and  that  he  was  to  pay  the  draft  and  obtain  the  order. 
The  bill  of  lading  sent  to  Evans  was  not  signed  nor  indorsed  by  the 
canning  company.  In  due  time  the  goods  were  transferred  by  the 
railway  company  which  first  received  them  to  defendant,  and  were 
by  it  transferred  to  Pueblo.  Evans  never  paid  the  draft  nor  obtained 
the  order,  but  within  twenty-four  hours  after  the  arrival  of  the 
goods  in  Pueblo  he  presented  the  bill  of  lading  which  he  had  received 
to  defendant,  and  without  other  authority  obtained  the  goods.  At 
that  time  Evans  was  insolvent,  but  defendant  had  no  knowledge  of 
that  fact,  nor  that  the  goods  had  not  been  paid  for,  nor  that  a  draft 
and  order  had  been  sent  or  instructions  given  in  regard  to  the  goods, 
but  delivered  them  in  good  faith.   .   .   . 

•  •••••••••** 

II.  Appellant  insists  that  it  was  not  in  fault  in  delivering  the 
goods  to  Evans,  for  the  reason  that  the  delivery  to  him  of  the  bill  of 
lading  was  in  effect  an  assignment  of  the  goods,  and  invested  him 
with  a  right  to  demand  and  receive  them.  We  are  referred  to  many 
authorities  which  are  claimed  to  support  this  view.  One  of  these  is 
Merchants'  Bank  v.   Union   Ky.  &  Trans.  Co.,  69  N.  Y.  374.     Aa 


DELIVERY    BY   CARRIER. 


examination  of  that  case  and  the  cases  therein  cited  will  show  that 
what  the  court  really  decided  was  that  a  delivery  of  the  forward* 
receipt  without  assignment,  but  with  intent  that  the  title  to   the 
goods   for  which   it  was  given,  or  an   interest  therein,    should  be 
thereby  transferred,  would  be  effectual  to  accomplish  the  transfer 
intended.     Other   authorities   cited   by  appellant   an-   to   the  same 
effect.     In  this  case  it  was  the  intention  of  the  canning  company  to 
retain  the  title  and  right  of  possession  in  itself  until  the  priced!' 
the  goods  should  be  paid.     The  bill  of  lading  required  the  delivery 
of  the  goods  to  the  consignor.     It  did  not  provide  for  delivery  to 
bearer  or  order,  but  to  the  Elgin  Canning  Company.     Therefore  it 
is  clear  that  the  forwarding  of  the  bill  of  lading  to  Evans,    with 
directions  to  pay  the  draft  and  obtain  the  order  for  the  goods,  did 
not  invest  him  with  any  right  to  the  goods  as  against  the  consignor. 
But  it  is  said  that  defendant  was  justified  in  delivering  the  goods  to 
Evans  because  of  his  possession  of  the  bill  of  lading.     The  cases  of 
Lickbarrow  v.  Mason,  1  Smith,   Lead.  Cas.  *838,  with  annotations; 
Dows    v.  Green,  24  1ST.  Y.  638;  Allen  v.  Williams,  12  Pick.  297,  and 
others,  are  cited  in  support  of  this  claim.     It  is  true  that  statements 
were  made  in  some,  if  not  all,  of  those  cases  which,  considered  apart 
from  the  connection  in  which  they  are  found,  might  seem  to  sustain 
the  claim;  but  when  they  are  considered  in  connection  with  the  facts 
of  the  cases  where  found,  and  the  general  conclusions  of  the  court 
which  made  them,  we  think  they  go  no  further  than  to  hold  that 
the  delivery  of  an  unindorsed  bill  of  lading  would  be  a  good  sym- 
bolical delivery  of  the  goods   it  represented,  where  such   was  the 
intent  and  purpose  of  the  parties.     In  Fearon  v.  Bowers,  reported 
in  1  Smith,  Lead.  Cas.  *782,  cited  by  appellant,  the  consignor  had 
sent  two  bills  of  lading,  one  of  which  was  indorsed  to  one  person 
and  the  other  to  another,  and  the  court  held  that  a  delivery  might 
be  made  to  the  holder  of  either  bill.     That  case  has  but  little  rela- 
tion to  the  principle  involved  in  this.     Appellant  insists  that  the 
bill  of  lading  is  like  a  promissory  note,  in  that  possession  is  prima 
facie  evidence  of  ownership;  but  we  do  not  think  that  such   is  the 
case.     A  bill  of    lading  is  a  non-negotiable    instrument.     Garden 
Grove  Bank  v.  Humeston  &  S.  Ry.  Co.,  67  Iowa,  534  [569].    The  follow- 
ing language  is  pertinent:  "Bills  of  lading  are  regarded  as  so  much 
cotton,  grain,  iron,  or  other  articles  of  merchandise.   .   .   .   They  are 
in   commerce   a  very   different  thing  from   bills   of   exchange   and 
promissory  notes,  answering  a  different  purpose  and  performing  a 
different  function."     Also:   "It  is   not  a  representative  of  money, 
used  for  transmission  of  money  or  for  the  payments  of  debts  or  for 
purchases.     It  does  not  pass  from  hand  to  hand  as  bank-notes   or 
coin.     It  is  a  contract  for  the  performance  of  a  certain  duty.     True, 
it  is  a  symbol  of  ownership  of  the  goods  covered  by  it,  — a  represen- 
tative of  those  goods;  but  if  the  goods  themselves  be  lost  or  stolen, 
no  sale  of  them  by  the  finder  or  thief,  though  to  a  bona  jide  pur* 


684  CARRIERS   OF   GOODS. 

chaser  for  value,  will  divest  the  ownership  of  the  person  who  lost 
them,  or  from  whom  they  were  stolen."  Shaw  v.  Railroad  Co.,  101 
U.  S.  557.  See,  also,  Hutch.  Carr.  sec.  348.  In  2  Pars.  Cont.  292, 
it  is  said :  "  The  consignor  frequently  sends  to  a  consignee  a  bill  not 
indorsed,  and  then  sends  to  his  own  agent  in  or  within  reach  of  the 
same  port  an  indorsed  bill,  —  it  may  be  indorsed  in  blank,  or  to  the 
agent,  or  to  the  party  ordering  the  goods, —  and  the  consignor  sends 
to  his  agent  with  the  bill  orders  to  deliver  the  bill  to  the  party 
ordering  the  goods,  or  to  receive  the  goods  and  deliver  them  to  him, 
provided  payment  be  made  or  secured,  or  such  other  terms  as  the 
consignor  prescribes  are  complied  with.  This  course  secures  to  the 
consignor,  beyond  all  question,  the  right  and  power  of  retaining 
the  goods  until  the  price  for  them  is  paid  or  secured  to  him."  This 
is  not  only  in  point,  but  seems  to  be  sound  in  principle.  The  fact 
that  Evans  presented  the  bill  of  lading  in  this  case  was  not  sufficient 
to  overcome  the  presumption  which  the  terms  of  the  bill  raised,  that 
the  consignor  was  the  owner  of  the  goods.  That  such  is  the  pre- 
sumption is  well  established.  Congar  v.  Galena,  U.  Ry.  Co.,  17 
Wis.  485 ;  Krulder  v.  Ellison,  47  N.  Y.  37  [766]  ;  Lawrence  v.  Minturn, 
17  How.  100;  Alderman  v.  Eastern  Ry.  Co.,  115  Mass.  234.  See, 
also,  Tuttle  v.  Becker,  47  Iowa,  486;  1  Benj.  Sales,  sees.  577,  579; 
2  Amer.  &  Eng.  Cyclop.  Law,  242,  243.  The  contract  with  the 
canning  company  required  the  defendant  to  deliver  the  goods  to  the 
consignor.  The  unindorsed  bill  of  lading  presented  by  Evans  was 
evidence  that  the  contract  was  still  in  force,  and  that  the  canning 
company  was  then  the  owner  of  the  goods.  The  delivery  to  Evans 
was  not  authorized,  and  was  made  by  defendant  at  its  own  risk. 
Hutch.  Carr.  sees.  129,  130,  344.  But  it  is  said  that  the  canning 
company  clothed  Evans  with  the  apparent  right  to  demand  the 
goods,  and  that,  since  "one  of  two  innocent  parties  must  suffer  a 
loss  from  the  wrong  of  another,  the  loss  should  fall  upon  the  party 
who  put  it  in  the  power  of  that  other  to  perpetrate  the  wrong." 
This  case  does  not  fall  within  that  rule,  for,  as  we  have  seen,  the 
possession  of  the  bill  of  lading,  without  indorsement  or  other  evi- 
dence of  an  assignment,  did  not  vest  Evans  with  any  apparent  right 
to  the  property.  The  loss  resulted  from  the  negligence  of  defendant 
in  not  insisting  upon  proper  evidence  of  an  assignment  before  it 
surrendered  the  goods. 

III.  It  is  insisted  by  appellant  that  the  delivery  to  Evans  was 
made  in  accordance  with  the  custom  at  Pueblo,  and  that  the  contract 
of  shipment  must  have  been  made  with  reference  to  that  custom. 
The  Superior  Court  found  that  by  a  local  custom  at  Pueblo  goods 
shipped  over  railway  lines  to  that  place  were  delivered  to  the  per- 
son who  held  the  bills  of  lading,  but  that  the  custom  was  not  general, 
and  plaintiff  had  no  knowledge  of  it.  The  contract  of  shipment 
required  defendant  to  deliver  the  goods  to  the  canning  company, 
and  we  question  the  right  of  defendant  to  vary  this  by  showing  a 


DELIVERY    BY   CARRIER.  685 

custom  in  conflict  with  it.  The  contract  was  not  ambiguous,  and 
required  no  explanation.  But  where  a  custom  may  be  shown  it 
must  appear  that  it  was  so  general  that  the  parties  to  the  cont  i 
will  be  presumed  to  have  contracted  with  reference  to  it.  Couch  v. 
Watson  Coal  Co.,  46  Iowa,  20;  Berkshire  Woolen  Co.  v.  Procter, 
7  Cush.  422  [232]  ;  Fay  v.  Insurance  Co.,  16  Gray,  461 ;  Wilson  v. 
Bauman,  80  111.  494 ;  2  Greenl.  Ev.  sec.  251.  The  court  below  not  only 
found  that  the  custom  pleaded  was  local,  but  that  plaintiff  had  no 
knowledge  of  it.  How  the  knowledge  of  plaintiff  would  affect  the 
contract  does  not  appear,  but  knowledge  on  the  part  of  the  canning 
company  when  the  shipping  receipt  was  taken  is  not  pleaded  nor 
is  it  shown.  Therefore  this  defence  is  not  maintained.  Walls  /•. 
Bailey,  49  N.  Y.  473;  Higgins  v.  Moore,  34  N.  Y.  425;  North  Penn. 
Ky.  Co.  v.  Commercial  Bank,  123  U.  S.  727;  8  Sup.  Ct.  Rep.  266; 
Clarke's  Browne,  Usages  &  Cust.  134,  note  4.  The  further  exami- 
nation which  we  have  given  this  case  on  rehearing  leads  us  to  con- 
clude that  the  first  decision  of  this  court  was  erroneous.  The 
judgment  of  the  Superior  Court  is 

Affirmed. 


SHAW   v.    RAILROAD   CO. 


101  U.  S.  557.     1879. 


Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Pennsylvania. 

This  is  an  action  of  replevin  brought  by  the  Merchants'  National 
Bank  of  St.  Louis,  Missouri,  against  Shaw  &  Esrey,  of  Philadel- 
phia, Pennsylvania,  to  recover  possession  of  certain  cotton,  marked 
"WD  I."  One  hundred  and  forty-one  bales  thereof  having  been 
taken  possession  of  by  the  marshal  were  returned  to  the  defendants 
upon  their  entering  into  the  proper  bond.  On  Nov.  11,  1874.  Norvell 
&  Co.,  of  St.  Louis,  sold  to  the  bank  their  draft  for  $11,947.43  on 
M.  Kuhn  &  Brother,  of  Philadelphia,  and.  as  collateral  security  for 
the  payment  thereof  indorsed  in  blank  and  delivered  to  the  bank  an 
original  bill  of  lading  for  one  hundred  and  seventy  bales  of  cotton 
that  day  shipped  to  the  last-named  city.  The  duplicate  bill  of 
lading  was  on  the  same  day  forwarded  to  Kuhn  &  Brother  by 
Norvell  &  Co.  The  Merchants'  Bank  forwarded  the  draft,  with  the 
bill  of  lading  thereto  attached,  to  the  Bank  of  North  America.  On 
November  14,  the  last-named  bank  sent  the  draft  —  the  original  bill 
of  lading  still  bein<*  attached  thereto  — to  Kuhn  &  Brother  by  its 

- 

messenger  for  acceptance.     The  messenger  presented  the  draft  and 
bill  to  one  of  the  members  of  that  firm,  who  accepted  the  fori 


686  CARRIERS    OF    GOODS. 

but,  without  being  detected,  substituted  the  duplicate  for  the 
original  bill  of  lading. 

On  the  day  upon  which  this  transaction  occurred,  Kuhn  &  Brother 
indorsed  the  original  bill  of  lading  to  Miller  &  Brother,  and  received 
thereon  an  advance  of  $8,500.  Within  a  few  days  afterwards,  the 
cotton,  or  rather  that  portion  of  it  which  is  in  controversy,  was, 
through  the  agency  of  a  broker,  sold  by  sample  with  the  approval 
of  Kuhn  &  Brother  to  the  defendants,  who  were  manufacturers  at 
Chester,  Pennsylvania.  The  bill  of  lading,  having  been  deposited 
on  the  same  clay  with  the  North  Pennsylvania  Railroad  Company, 
at  whose  depot  the  cotton  was  expected  to  arrive,  it  was  on  its 
arrival  delivered  to  the  defendants. 

The  fact  that  the  Bank  of  North  America  held  the  duplicate 
instead  of  the  original  bill  of  lading  was  discovered  for  the  first 
time  on  the  9th  of  December,  by  the  president  of  the  plaintiff,  who 
had  gone  to  Philadelphia  in  consequence  of  the  failure  of  Kuhn  & 
Brother  and  the  protest  of  the  draft. 

The  defendants  below  contended  that  the  bill  of  lading  was  nego- 
tiable in  the  ordinary  sense  of  that  word;  that  Miller  &  Brother  had 
purchased  it  for  value  in  the  usual  course  of  business,  and  that  the}' 
thereby  had  acquired  a  valid  title  to  the  cotton,  which  was  not 
impaired  by  proof  that  Kuhn  &  Brother  had  fraudulently  got  posses- 
sion of  the  bill;  but  the  court  left  it  to  the  jury  to  determine,  — 

1st,  Whether  there  was  any  negligence  of  the  plaintiff  or  its 
agents  in  parting  with  possession  of  the  bill  of  lading. 

2d,  Whether  Miller  &  Brother  knew  any  fact  or  facts  from  which 
they  had  reason  to  believe  that  the  bill  of  lading  was  held  to  secure 
payment  of  an  outstanding  draft. 

The  jury  having  found  the  first  question  in  the  negative  and  the 
second  in  the  affirmative,  further  found  "the  value  of  the  goods 
eloigned  "  to  be  $7,015.97,  assessed  the  plaintiff's  damages  at  that 
sum  with  costs,  for  which  amount  the  court  entered  a  judgment. 
SI  law  &  Esrey  thereupon  sued  out  this  writ  of  error.  • 

Mr.  Justice  Strong.  The  defendants  below,  now  plaintiffs  in 
error,  bought  the  cotton  from  Miller  &  Brother  by  sample,  through 
a  cotton  broker.  "No  bill  of  lading  or  other  written  evidence  of  title 
in  their  vendors  was  exhibited  to  them.  Hence,  they  can  have  no 
other  or  better  title  than  their  vendors  had. 

The  inquiry,  therefore,  is,  what  title  had  Miller  &  Brother  as 
against  the  bank,  which  confessedly  was  the  owner,  and  which  is 
still  the  owner,  unless  it  has  lost  its  ownership  by  the  fraudulent 
act  of  Kuhn  &  Brother.  The  cotton  was  represented  by  the  bill  of 
lading  given  to  Norvell  &  Co.,  at  St.  Louis,  and  by  them  indorsed 
to  the  bank,  to  secure  the  payment  of  an  accompanying  discounted 
time-draft.  That  indorsement  vested  in  the  bank  the  title  to  the 
cotton,  as  well  as  to  the  contract.  While  it  there  continued,  and 
during  the  transit  of  the  cotton  from  St.  Louis  to  Philadelphia,  the 


DELIVERY    BY    CARRIER.  687 

indorsed  bill  of  lading  was  stolen  by  one  of  the  firm  of  Kuhn  & 
Brother,  and  by  them  indorsed  over  to  Miller  &  Brother,  for  an 
advance  of  $8,500.  The  jury  has  found,  however,  that  there  was  no 
negligence  of  the  bank,  or  its  agents,  in  parting  with  possession  of 
the  bill  of  lading,  and  that  Miller  &  Brother  knew  facts  from  which 
they  had  reason  to  believe  it  was  held  to  secure  the  payment  of  an 
outstanding  draft;  in  other  words,  that  Kuhn  &  Brother  were  not 
the  lawful  owners  of  it,  and  had  no  right  to  dispose  of  it. 

It  is  therefore  to  be  determined  whether  Miller  &  Brother,  by 
taking  the  bill  of  lading  from  Kuhn  &  Brother  under  these  circum- 
stances, acquired  thereby  a  good  title  to  the  cotton  as  against  the 
bank. 

In  considering  this  question,  it  does  not  appear  to  us  necessary  to 
inquire  whether  the  effect  of  the  bill  of  lading  in  the  hands  of  Miller 
&  Brother  is  to  be  determined  by  the  law  of  Missouri,  jwhere  the  bill 
was  given,  or  by  the  law  of  Pennsylvania,  where  the  cotton  was 
delivered.  The  statute  of  both  States  enact  that  bills  of  lading  shall 
be  negotiable  by  indorsement  and  delivery.  The  statute  of  Pennsyl- 
vania declares  simply,  they  "shall  be  negotiable  and  may  be  trans- 
ferred by  indorsement  and  delivery;  "  while  that  of  Missouri  enacts 
that  "  they  shall  be  negotiable  by  written  indorsement  thereon  and 
delivery,  in  the  same  manner  as  bills  of  exchange  and  promissory 
notes."  There  is  no  material  difference  between  these  provisions. 
Both  statutes  prescribe  the  manner  of  negotiation;  i.e.,  by  indorse- 
ment and  delivery.  Neither  undertakes  to  define  the  effect  of  such 
a  transfer. 

We  must,  therefore,  look  outside  of  the  statute  to  learn  what  they 
mean  by  declaring  such  instruments  negotiable.  What  is  negotia- 
bility? It  is  a  technical  term  derived  from  the  usage  of  merchants 
and  bankers,  in  transferring,  primarily,  bills  of  exchange  and,  after- 
wards, promissory  notes.  At  common  law  no  contract  was  assign- 
able, so  as  to  give  to  an  assignee  a  right  to  enforce  it  by  suit  in  his 
own  name.  To  this  rule  bills  of  exchange  and  promissory  notes, 
payable  to  order  or  bearer,  have  been  admitted  exceptions,  made 
such  by  the  adoption  of  the  law  merchant.  They  may  be  trans- 
ferred *by  indorsement  and  delivery,  and  such  a  transfer  is  called 
negotiation.  It  is  a  mercantile  business  transaction,  and  the  capa- 
bility of  being  thus  transferred,  so  as  to  give  to  the  indorsee  a  right 
to  sue  on  the  contract  in  his  own  name,  is  what  constitutes  negotia- 
bility. The  term  "  negotiable  "  expresses,  at  least  primarily,  this 
mode  and  effect  of  a  transfer. 

In  regard  to  bills  and  notes,  certain  other  consequences  generally, 
though  not  always,  follow.  Such  as  a  liability  of  the  indorser,  if 
demand  be  duly  made  of  the  acceptor  or  maker,  and  seasonable 
notice  of  his  default  be  given.  So  if  the  indorsement  be  made  for 
value  to  a  bona  fide  holder,  before  the  maturity  of  the  bill  or  note, 
in  due  course  of  business,  the  maker   or  acceptor  cannot  set  up 


688  CARRIERS   OF   GOODS. 

against  the  indorsee  any  defence  which  might  have  been  set  up 
against  the  payee,  had  the  bill  or  note  remained  in  his  hands. 

So,  also,  if  a  note  or  bill  of  exchange  be  indorsed  in  blank,  if 
payable  to  order,  or  if  it  be  payable  to  bearer,  and  therefore  nego- 
tiable by  delivery  alone,  and  then  be  lost'or  stolen,  bona  fide  pur- 
chaser for  value  paid  acquires  title  to  it,  even  as  against  the  true 
owner.  This  is  an  exception  from  the  ordinary  rule  respecting 
personal  property.  But  none  of  these  consequences  are  necessary 
attendants  or  constituents  of  negotiability,  or  negotiation.  That 
may  exist  without  them.  A  bill  or  note  past  due  is  negotiable,  if 
it  be  payable  to  order,  or  bearer,  but  its  indorsement  or  delivery 
does  not  cut  off  the  defences  of  the  maker  or  acceptor  against  it, 
nor  create  such  a  contract  as  results  from  an  indorsement  before 
maturity,  and  it  does  not  give  to  the  purchaser  of  a  lost  or  stolen 
bill  the  rights  of  the  real  owner. 

It  does  not  necessarily  follow,  therefore,  that  because  a  statute 
has  made  bills  of  lading  negotiable  by  indorsement  and  delivery, 
all  these  consequences  of  an  indorsement  and  delivery  of  bills  and 
notes  before  maturity  ensue  or  are  intended  to  result  from  such 
negotiation. 

Bills  of  exchange  and  promissory  notes  are  exceptional   in  their 

character.     They  are  representatives  of  money,   circulating  in  the 

commercial  world  as  evidence  of  money,  "  of  which  any  person  in 

lawful  possession  may  avail  himself  to  pay  debts  or  make  purchases 

or  make  remittances  of  money  from  one  country  to  another,  or  to 

remote  places  in  the  same  country.     Hence,  as  said  by  Story,  J., 

it  has  become  a  general  rule  of  the  commercial  world  to  hold  bills 

of  exchange,  as  in  some  sort,  sacred  instruments  in  favor  of  bona 

fide  holders  for  a  valuable  consideration  without  notice."     Without 

such  a  holding  they  could  not  perform  their  peculiar  functions.     It 

is  for  this  reason  it  is  held  that  if  a  bill  or  note,  indorsed  in  blank, 

or  payable  to  bearer,  be  lost  or  stolen,  and  be  purchased  from  the 

finder  or  thief,  without  any  knowledge  of  want  of  ownership  in  the 

vendor,  the  bona  fide  purchaser  may  hold  it  against  the  true  owner. 

He  may  hold  it  though  he  took  it  negligently,  and  when  there  were 

suspicious  circumstances  attending  the  transfer.     Nothing  short  of 

actual  or  constructive  notice  that  the  instrument  is  not  the  property 

of  the  person  who  offers  to  sell  it  — that  is,  nothing  short  of  mala 

fides  —  will  defeat  his  right.     The  rule  is  the  same  as  that  which 

protects  the  bona  fide  indorser  of  a  bill  or  note  purchased  for  value 

from  the  true  owner.     The  purchaser  is  not  bound  to  look  beyond 

the  instrument.     Goodman  v.  Harvey,  4  Ad.  &  E.  870;  Goodman  v. 

Simonds,  20  How.  343;  Murray  v.  Lardner,  2  Wall.  110;  Matthews 

v.  Poythress,  4  Ga.  287.     The  rule  was  first  applied  to  the  case  of 

a  lost  bank-note  (Miller  v.  Race,  1  Burr.  452),  and  put  upon  the 

ground  that  the  interests  of  trade,  the  usual  course  of  business,  and 

the  fact  that  bank-notes  pass  from  hand  to  hand  as  coin,  require  it. 


DELIVEKY   BY   CARRIER.  689 

It  was  subsequently  held  applicable  to  merchants'  drafts,  and  in 
Peacock  v.  Rhodes,  2  Doug.  633,  to  bills  and  notes,  as  coming 
within  the  same  reason. 

The  reason  can  have  no  application  to  the  case  of  a  lost  or  stolen 
bill  of  lading.  The  function  of  that  instrument  is  entirely  different 
from  that  of  a  bill  or  note.  It  is  not  a  representative  of  moi 
used  for  transmission  of  money,  or  for  the  payment  of  debts  or  for 
purchases.  It  does  not  pass  from  hand  to  hand  as  bank-notes  or 
coin.  It  is  a  contract  for  the  performance  of  a  certain  duty.  True, 
it  is  a  symbol  of  ownership  of  the  goods  covered  by  it,  —  a  represen- 
tative of  those  goods.  But  if  the  goods  themselves  be  lost  or  stolen, 
no  sale  of  them  by  the  finder  or  thief,  though  to  a  bona  fide  pur- 
chaser for  value,  will  divest  the  ownership  of  the  person  who  lost 
them,  or  from  whom  they  were  stolen.  Why  then  should  the  sale 
of  the  symbol  or  mere  representative  of  the  goods  have  such  an 
effect?  It  may  be  that  the  true  owner,  by  his  negligence  or  care- 
lessness, may  have  put  it  in  the  power  of  a  finder  or  thief  to  occupy 
ostensibly  the  position  of  a  true  owner,  and  his  carelessness  may 
estop  him  from  asserting  his  right  against  a  purchaser  who  has  been 
misled  to  his  hurt  by  that  carelessness.  But  the  present  is  no  such 
case.  It  is  established  by  the  verdict  of  the  jury  that  the  bank 
did  not  lose  its  possession  of  the  bill  of  lading  negligently.  There 
is  no  estoppel,  therefore,  against  the  bank's  right. 

Bills  of  lading  are  regarded  as  so  much  cotton,  grain,  iron,  or 
other  articles  of  merchandise.  The  merchandise  is  very  often  sold 
or  pledged  by  the  transfer  of  the  bills  which  cover  it.  They  are,  in 
commerce,  a  very  different  thing  from  bills  of  exchange  and  promis- 
sory notes,  answering  a  different  purpose  and  performing  different 
functions.  It  cannot  be,  therefore,  that  the  statute  which  made 
them  negotiable  by  indorsement  and  delivery,  or  negotiable  in  the 
same  manner  as  bills  of  exchange  and  promissory  notes  are  nego- 
tiable, intended  to  change  totally  their  character,  and  put  them  in 
all  respects  on  the  footing  of  instruments  which  are  the  representa- 
tives of  money,  and  charge  the  negotiation  of  them  with  all  the 
consequences  which  usually  attend  or  follow  the  negotiation  of  bills 
and  notes.  Some  of  these  consequences  would  be  very  strange  if 
not  impossible,  —  such  as  the  liability  of  indorsers,  the  duty  of 
demand  ad  diem,  notice  of  non-delivery  by  the  carrier,  etc.,  or  the 
loss  of  the  owner's  property  by  fraudulent  assignment  of  a  thief. 
If  these  were  intended,  surely  the  statute  would  have  said  some- 
thing more  than  merely  make  them  negotiable  by  indorsement.  No 
statute  is  to  be  construed  as  altering  the  common  law  farther  than 
its  words  import.  It  is  not  to  be  construed  as  making  any  inno- 
vation upon  the  common  law  which  it  does  not  fairly  express. 
Especially  is  so  great  an  innovation  as  would  be  placing  bills  of 
lading  on  the  same  footing  in  all  respects  with  bills  of  exchange 
not  to  be  inferred  from  words  that  can  be  fully  satisfied  without  it. 


690  CARKIEES    OF    GOODS. 

The  law  has  most  carefully  protected  the  ownership  of  personal 
property,  other  than  money,  against  misappropriation  by  others 
than  the  owner,  even  when  it  is  out  of  his  possession.  This 
protection  would  be  largely  withdrawn  if  the  misappropriation  of 
its  symbol  or  representative  could  avail  to  defeat  the  ownership, 
even  when  the  person  who  claims  under  a  misappropriation  had 
reason  to  believe  that  the  person  from  whom  he  took  the  property 
had  no  right  to  it. 

We  think,  therefore,  that  the  rule  asserted  in  Goodman  v.  Harvey, 
Goodman  v.  Simonds,  Murray  v.  Lardner,  supra,  and  in  Phelan  v. 
Moss,  67  Pa.  St.  59,  is  not  applicable  to  a  stolen  bill  of  lading.  At 
least  the  purchaser  of  such  a  bill,  with  reason  to  believe  that  his 
vendor  was  not  the  owner  of  the  bill,  or  that  it  was  held  to  secure 
the  payment  of  an  outstanding  draft,  is  not  a  bona  fide  purchaser, 
and  he  is  not  entitled  to  hold  the  merchandise  covered  by  the  bill 
against  its  true  owner.  In  the  present  case  there  was  more  than 
mere  negligence  on  the  part  of  Miller  &  Brother,  more  than  mere 
reason  for  suspicion.  There  was  reason  to  believe  Kuhn  &  Brother 
had  no  right  to  negotiate  the  bill.  This  falls  very  little,  if  any, 
short  of  knowledge.  It  may  fairly  be  assumed  that  one  who  has 
reason  to  believe  a  fact  exists,  knows  it  exists.  Certainly,  if  he 
be  a  reasonable  being. 

Judgment  affirmed. 


d.    Delivery  to  True  Owner. 
THE   IDAHO. 

93  U.  S.  575.     1876. 

The  libellants  [Hentz,  et  al.,  who  are  the  appellants]  claim  damages 
against  the  "  Idaho  "  for  the  non-delivery  of  one  hundred  and  sixty- 
five  bales  of  cotton,  part  of  a  shipment  of  two  hundred  bales  for 
Liverpool,  made  by  Thomas  W.  Mann,  and  consigned  to  the  order 
of  James  Finlay  &  Co.  After  the  shipment,  the  libellants  pur- 
chased the  cotton  from  Mann,  who  indorsed  to  them  the  ship's  bill 
of  lading  therefor.  On  the  arrival  of  the  vessel  at  Liverpool,  thirty- 
five  bales  were  delivered  to  Finlay  &  Co.,  but  the  remaining  one  hun- 
dred and  sixty-five  were  delivered  to  Baring  Brothers  &  Co.,  in 
pursuance  of  an  order  from  William  J.  Porter  &  Co.  of  New  York. 
Such  a  delivery  was  not  in  accordance  with  the  stipulations  of  the 
bill  of  lading;  but  it  is  attempted  to  be  justified  by  the  alleged  fact 
that  Porter  &  Co.  were  the  true  owners  of  the  cotton,  and  as  such  had 
a  right,  superior  to  that  of  the  shippers,  to  control  its  delivery.  .  .  . 

Mr.  Justice  Strong.  In  determining  the  merits  of  the  defence 
set  up  in  this  case,  it  is  necessary  to  inquire  whether  the  law  per- 


DELIVERY    BY    CARRIER.  091 

mits  a  common  carrier  to  show,  as  an  excuse  for  non-deli  very  pur- 
suant to  his  bill  of  lading,  that  he  has  delivered  the  goods  upon 
demand  to  the  true  owner.  Upon  this  subject  there  has  been  much 
debate  in  courts  of  law,  and  some  contrariety  of  decision. 

In  Rolle's  Abr.  606,  tit.  "Detinue,"  it  is  said,  ••  If  the  bailee  of 
goods  deliver  them  to  him  who  has  the  right  to  them,  he  is,  not- 
withstanding, chargeable  to  the  bailor,  who,  in  truth,  has  no  right ;  "' 
and  for  this,  9  Henry  VI.  58,  is  cited.  And  so,  if  the  bailee  deliver 
them  to  the  bailor  in  such  a  case,  he  is  said  not  to  be  chargeable  to 
the  true  owner,  id.  607,  for  which  7  Henry  VI.  22,  is  cited.  The 
reasons  given  for  such  a  doctrine,  however  satisfactory  they  may 
have  been  when  they  were  announced,  can  hardly  command  assent 
now.  It  is  now  everywhere  held,  that,  when  the  true  owner  has  by 
legal  proceedings  compelled  a  delivery  to  himself  of  the  goods  bailed, 
such  delivery  is  a  complete  justification  for  non-delivery,  according 
to  the  directions  of  the  bailor.  Bliven  v.  Hudson  River  Railroad 
Co.,  36  K  Y.  403  [736].  And  so,  when  the  bailee  has  actually 
delivered  the  property  to  the  true  owner,  having  a  right  to  the  pos- 
session, on  his  demand,  it  is  a  sufficient  defence  against  the  claim 
of  the  bailor.  The  decisions  are  numerous  to  this  effect.  King  v. 
Richards,  6  Whart.  418;  Bates  v.  Stanton,  1  Duer,  79;  Hardman  v. 
Wilcock,  9  Bing.  382 ;  Biddle  v.  Bond,  6  Best  &  S.  225.  If  it  be 
said,  that,  by  accepting  the  bailment,  the  bailee  has  estopped  him- 
self against  questioning  the  right  of  his  bailor,  it  may  be  remarked 
in  answer,  that  this  is  assuming  what  cannot  be  conceded.  Un- 
doubtedly the  contract  raises  a  strong  presumption  that  the  bailor 
is  entitled  ;  but  it  is  not  true  that  thereby  the  bailee  conclusively 
admits  the  right  of  the  principal.  His  contract  is  to  do  with  the 
property  committed  to  him  what  his  principal  has  directed,  —  to 
restore  it,  or  to  account  for  it.  Cheeseman  v.  Exall,  6  Exch.  341. 
And  he  does  account  for  it  when  he  has  yielded  it  to  the  claim  of 
one  who  has  right  paramount  to  that  of  his  bailor.  If  there  be 
any  estoppel,  it  ceases  when  the  bailment  on  which  it  is  founded  is 
determined  by  what  is  equivalent  to  an  eviction  by  title  paramount ; 
that  is,  by  the  reclamation  of  possession  by  the  true  owner.  Biddle 
v.  Bond,  siqira.  Nor  can  it  be  maintained,  as  has  been  argued  in 
the  present  case,  that  a  carrier  can  excuse  himself  for  failure  to 
deliver  to  the  order  of  the  shipper,  only  when  the  goods  have  been 
taken  from  his  possession  by  legal  proceedings,  or  where  the  shipper 
has  obtained  the  goods  by  fraud  from  the  true  owner.  It  is  true, 
that,  in  some  of  the  cases,  fraud  of  the  shipper  has  appeared  ;  and 
it  has  sometimes  been  thought  it  is  only  in  such  a  case,  or  in  a 
case  where  legal  proceedings  have  interfered,  that  the  baihv  can 
set  up  the  jus  tertii.  There  is  no  substantial  reason  for  the  opinion. 
No  matter  whether  the  shipper  has  obtained  the  possession  h< 
to  the  carrier  by  fraud  practised  upon  the  true  owner.  <>v  whether 
he  mistakenly  supposes  he  has  rights  to  the  property,  his  relation  to 


C92  CARRIERS   OF    GOODS. 

his  bailee  is  the  same.  He  cannot  confer  rights  which  he  does  not 
himself  possess  ;  and  if  he  cannot  withhold  the  possession  from  the 
true  owner,  one  claiming  under  him  cannot.  The  modern  and  best-con- 
sidered cases  treat  as  a  matter  of  no  importance  the  question  how 
the  bailor  acquired  the  possession  he  has  delivered  to  his  bailee,  and 
adjudge,  that,  if  the  bailee  has  delivered  the  property  to  one  who 
had  the  right  to  it  as  the  true  owner,  he  may  defend  himself  against 
any  claim  of  the  principal.  In  the  late  case  of  Biddle  v.  Bond, 
supra,  decided  in  1865,  it  was  so  decided ;  and  Blackburn,  J.,  in  de- 
livering the  opinion  of  the  court,  said  there  was  nothing  to  alter 
the  law  on  the  subject  in  the  circumstance  that  there  was  no  evi- 
dence to  show  the  plaintiff,  though  a  wrong-doer,  did  not  honestly 
believe  that  he  had  the  right.  Said  he,  the  position  of  the  bailee  is 
precisely  the  same,  whether  his  bailor  was  honestly  mistaken  as  to 
the  rights  of  the  third  person  whose  title  is  set  up,  or  fraudulently 
acting  in  derogation  of  them.  In  Western  Transportation  Company 
v.  Barber,  56  N.  Y.  544,  the  Court  of  Appeals  of  New  York  unani- 
mously asserted  the  same  doctrine,  saying,  "the  best-decided  cases 
hold  that  the  right  of  a  third  person  to  which  the  bailee  has  yielded 
may  be  interposed  in  all  cases  as  a  defence  to  an  action  brought  by 
a  bailor  subsequently  for  the  property.  When  the  owner  comes  and 
demands  his  property,  he  is  entitled  to  its  immediate  delivery,  and 
it  is  the  duty  of  the  possessor  to  make  it.  The  law  will  not  adjudge 
the  performance  of  this  duty  tortious  as  against  a  bailor  having  no 
title."  The  court  repudiated  any  distinction  between  a  case  where 
the  bailor  was  honestly  mistaken  in  believing  he  had  the  right,  and 
one  where  a  bailor  obtained  the  possession  feloniously  or  by  force 
or  fraud ;  and  we  think  no  such  distinction  can  be  made. 

We  do  not  deny  the  rule  that  a  bailee  cannot  avail  himself  of  the 
title  of  a  third  person  (though  that  person  be  the  true  owner)  for 
the  purpose  of  keeping  the  property  for  himself,  nor  in  any  case 
where  he  has  not  yielded  to  the  paramount  title.  If  he  could,  he 
might  keep  for  himself  goods  deposited  with  him,  without  any  pre- 
tence of  ownership.  But  if  he  has  performed  his  legal  duty  by 
delivering  the  property  to  its  true  proprietor,  at  his  demand,  he  is 
not  answerable  to  the  bailor.  And  there  is  no  difference  in  this 
particular  between  a  common  carrier  and  other  bailees. 

Recurring,  then,  to  the  inquiry  whether  Porter  &  Co.  —  to  whose 
order  the  steamer  delivered  the  one  hundred  and  sixty-five  bales  of 
cotton  —  were  the  true  owners  of  the  cotton,  a  brief  statement  of  the 
evidence  on  which  their  title  rests  is  necessary.  It  originated  as 
follows :  On  the  1st  of  April,  1869,  one  J.  C.  Forbes  obtained  from 
the  master  of  the  brig  "  Colson,"  then  lying  at  New  Orleans,  a  bill  of 
lading  for  one  hundred  and  thirty-nine  bales  of  cotton,  described  by 
specified  marks.  The  bill  was  indorsed,  and  forwarded  by  Forbes  to 
Porter  &  Co. ;  and  drafts  against  it  to  a  large  amount  were  drawn 
upon  them,  which  they  accepted,  credited,  and  paid  on  or  before  the 


DELIVERY    BY    CARRIER.  093 

7th  of  the  month.  In  fact  however,  when  the  bill  of  lading  was  given, 
no  snch  cotton  had  been  received  by  the  brig ;  but  on  the  5th  of  April 
the  agent  of  Forbes  bought  one  hundred  and  forty  bales,  then  at  the 
shipper's  press,  and  directed  them  to  be  sent  to  the  "  Colson,"  marked 
substantially  as  described  in  the  bill  of  lading.  These  bales  were 
accordingly  delivered  from  the  press  to  the  brig  on  the  8th  of  April, 
and  the  first  and  second  mate  receipted  for  them.  They  were  not 
actually  taken  on  board,  but  they  were  deposited  on  the  pier,  at  the 
usual  and  ordinary  place  for  the  receipt  of  freight  by  the  "Colson.*' 
and  an  additional  bill  of  lading  for  one  bale  only  was  taken  by 
Forbes,  and  by  him  indorsed  and  transmitted  to  Porter  &  Co., 
together  with  an  invoice  of  the  one  hundred  and  forty  bales  corre- 
sponding with  the  bills  of  lading.  The  marks  and  numbers  on  the 
bales  were  the  same  as  those  mentioned  in  the  bills  of  lading,  except- 
ing only  that  thirty-five  were  marked  L  instead  of  thirty-six,  and 
sixteen  marked  S  instead  of  fifteen.  There  was  also  a  small  dif- 
ference in  the  aggregate  weight. 

That  the  cotton  thus  delivered  to  the  "  Colson "  was  intended  to 
fill  the  bills  of  lading,  one  of  which  had  been  previously  given,  is 
incontrovertible.  They  were  so  intended  by  the  shipper.  If  not, 
why  were  they  thus  marked?  And  why  was  a  bill  of  lading  taken 
for  one  bale  only,  instead  of  for  one  hundred  and  forty ;  and  why  was 
the  invoice  of  the  whole  number  sent?  Such,  also,  was  plainly  the 
understanding  of  the  ship.  The  receipts  of  the  mates,  and  the  fact 
that  the  master  gave  a  bill  of  lading  for  one  bale  marked  S,  when 
there  were  sixteen  bales  thus  marked,  leave  this  beyond  reason- 
able doubt.  "What,  then?  Why,  the  one  hundred  and  forty  bales 
thus  shipped  became  from  the  moment  of  shipment  the  property 
of  Porter  &  Co.,  to  whom  the  bills  of  lading  were  indorsed.  It  is 
not  only  the  utterance  of  common  honesty,  but  the  declaration  of 
judicial  tribunals,  that  a  delivery  of  goods  to  a  ship  corresponding  in 
substance  with  a  bill  of  lading  given  previously,  if  intended  and 
received  to  meet  the  bill  of  lading,  makes  the  bill  operative  from  the 
time  of  such  delivery.  At  that  instant  it  becomes  evidence  of  the 
ownership  of  the  goods.  Thus,  in  Rowley  v.  Bigelow,  12-  Pick.  307, 
it  is  said,  a  bill  of  lading  operates  by  way  of  estoppel  against  the 
master,  and  also  against  the  shipper  and  indorser.  "The  bill 
acknowledges  the  goods  to  be  on  board  before  the  bill  of  lading  is 
signed.  But  if,  through  inadvertence  or  otherwise,  the  bill  of  lading 
is  signed  before  the  goods  are  on  board,  upon  the  faith  and  assurance 
that  they  are  at  hand,  as  if  they  are  received  on  the  wharf  ready  to 
be  shipped,  or  in  the  shipper's  own  warehouse,  .  .  .  and  afterwards 
they  are  placed  on  board,  as  and  for  the  goods  embraced  in  the  bill  of 
lading,  as  against  the  shipper  and  master  the  bill  will  operate  on 
those  goods  by  way  of  relation  and  estoppel."  Such  is  also  the  doc- 
trine asserted  in  Halliday  v.  Hamilton,  11  Wall.  565,  and  it  is  in  har- 
mony with  the  general  rules  that  regulate  the  transfer  of  personal 


694  CARRIERS   OF   GOODS. 

property.  We  do  not  say  that  a  title  to  personal  property  may  not 
be  created  between  the  issue  of  a  bill  of  lading  therefor  and  its 
delivery  to  the  ship,  which  will  prevail  over  the  master's  bill,  but,  in 
the  absence  of  any  such  intervening  right,  a  bill  of  lading  does  cover 
goods  subsequently  delivered  and  received  to  fill  it,  and  will  represent 
the  ownership  of  the  goods.  The  cotton  delivered  on  the  8th  of  April 
on  the  pier  for  the  "  Colson,"  and  received  by  the  mates  of  the  brig, 
became  therefore,  at  the  instant  of  its  delivery,  the  property  of  Porter 
&  Co.,  who  were  then  the  indorsees  of  the  bills  of  lading.  Its  subse- 
quent removal  by  Forbes  to  the  "Ladona,"  either  with  or  without  the 
consent  of  the  brig's  officers,  could  not  divert  that  ownership. 

The  title  of  Porter  &  Co.  to  the  one  hundred  and  forty  bales  must, 
therefore,  as  we  have  said,  be  held  to  have  been  perfected  when  they 
were  delivered  to  the  "  Colson"  on  the  8th  of  April.  No  right  in 
any  other  person  intervened  between  the  issue  of  the  bill  of  lading 
and  the  brig's  receipt  of  the  cotton  to  fill  it.  It  was  after  the  title  of 
Porter  &  Co.  had  thus  become  complete  that  Forbes  removed  the  one 
hundred  and  forty  bales  from  the  custody  of  the  "  Colson  "  and  shipped 
it  for  New  York  on  the  "Ladona,"  together  with  twenty -five  other 
bales,  re-marking  it,  and  drawing  drafts  against  this  second  shipment 
upon  Schaefer  &  Co.  After  carefully  examining  the  evidence,  we 
cannot  doubt  that  the  one  hundred  and  forty  bales  thus  withdrawn 
from  the  "  Colson  "  were  shipped  on  the  "  Ladona,"  and  that  they  came 
to. the  possession  of  Schaefer  &  Co.,  in  New  York,  by  whom  they  were 
transferred,  together  with  the  other  twenty -five  bales,  to  Mann,  under 
whom  the  plaintiffs  claim.  The  one  hundred  and  sixty-five  bales,  then, 
are  the  identical  bales  that  were  included  in  the  shipment  on  the 
"Idaho,"  and  for  which  the  bill  of  lading  was  given  to  Mann.  Of 
these,  one  hundred  and  forty  were  the  property  of  Porter  &  Co., 
fraudulently  withdrawn  from  their  possession.  It  is  hardly  necessary 
to  say  that  the  title  of  the  true  owner  "of  personal  property  cannot  be 
impaired  by  the  unauthorized  acts  of  one  not  the  owner.  Taking 
possession  of  the  property,  shipping  it,  obtaining  bills  of  lading  from 
the  carriers,  indorsing  away  the  bills  of  lading,  or  even  seeing  the 
property  and  obtaining  a  full  price  for  it,  can  have  no  effect  upon  the 
right  of  the  owner.  Even  a  bona  fide  purchaser  obtains  no  right  by  a 
purchase  from  one  who  is  not  the  owner,  or  not  authorized  to  sell.  It 
must,  therefore,  be  concluded  that  Porter  &  Co.  were  the  owners  of  at 
least  one  hundred  and  forty  of  the  bales  shipped  by  Mann  on  the 
"  Idaho,"  and  covered  by  the  bill  of  lading  to  enforce  which  this  libel 
was  filed. 

All  that  remains  to  be  determined  is  whether  Porter  &  Co.  had  a 
right  to  the  possession  of  the  additional  twenty-five  bales  shipped 
with  the  one  hundred  and  forty  from  New  Orleans  on  the  "  Ladona," 
and  shipped  also  on  the  "Idaho"  for  Liverpool,  together  with  the 
thirty-five  bales  delivered  there  to  Finlay  &  Co.     When  the  one  hun- 


DELIVERY    BY    CARRIER.  695 

dred  and  forty  bales  were  removed  from  the  custody  of  the  "  Colsou  " 
and  taken  to  the  "Ladona,"  twenty-five  other  bales  wen-  mingled  with 
them.  On  the  pier  opposite  that  vessel  they  were  re-marked,  and  all 
shipped  as  one  lot,  under  one  bill  of  lading.  When  they  reached  New 
York,  they  came  into  the  possession  of  Schaefer,  the  indorsee  of  the 
bill  of  lading  given  by  the  "Ladona,"  who  knew,  when  he  received 
them,  that  the  "  Colson"  was  short  eight  hundred  or  one  thousand  1  ia 
The  newspapers  had  contained  articles  about  the  fraud.  He  himself 
was  a  sufferer.  He  held  some  of  the  fraudulent  bills  of  lading  of  the 
"Colson,"  and  he  had  heard  that  Porter  was  in  the  same  condil 
So  he  has  testified.  With  this  knowledge  he  set  to  work  to  guard 
against  the  possibility  of  tracing  the  cotton.  He  caused  the  "  Colson  " 
marks  to  be  removed  from  the  one  hundred  and  forty  bales,  and  the 
"Ladona"  marks  to  be  removed  from  both  the  one  hundred  and  forty 
and  the  twenty-five  bales.  He  then  had  the  whole  re-marked,  making 
no  distinction  between  the  lot  of  one  hundred  and  forty  and  that  of 
twenty-five,  thus  practically  making  the  bales  undistinguishable.  In 
addition  to  this,  by  an  arrangement  between  himself  and  Mann,  his 
clerk,  in  the  form  of  a  sale,  the  cotton  was  shipped  en  masse  by  the 
"Idaho."  It  is  impossible  for  us  to  close  our  eyes  upon  the  nature 
and  purpose  of  this  transaction.  It  was  a  perfect  confusion  of  the 
one  hundred  and  forty  bales  that  belonged  to  Porter  with  the  other 
twenty-five  ;  and  it  was  not  accidental.  It  was  purposely  made,  with 
an  intent  to  embarrass  or  hinder  the  owner,  and  prevent  him  from 
recovering  his  original  property.  There  is  no  conceivable  motive  for 
Schaefer's  obliterating  the  marks,  both  of  the  "  Colson  "  and  "  Ladona  " 
shipment,  in  so  much  haste  (ordering  it  done  on  Sunday),  and  sub- 
stituting new  marks,  except  to  destroy  the  evidence  of  title  in  any 
other  person.  That  such  was  Schaefer's  purpose  may  also  be  inferred 
from  his  conduct  in  selling  the  same  to  Mann ;  from  Mann's  sale  on 
the  same  day  to  the  libellants,  telling  them  he  did  not  wish  them  to 
ask  whether  the  cotton  was  really  Schaefer's,  stating,  also,  that  he  had 
bought  from  Schaefer,  and  that  Schaefer  guaranteed  the  transaction ; 
from  Mann's  turning  over  the  libellants' note  immediately  to  Schaefer, 
and  Schaefer's  giving  a  guaranty  before  its  payment  that  the  maker 
should  be  held  harmless.  The  whole  arrangement  was  manifestly  a 
scheme  of  Schaefer  to  obscure  the  title  to  the  cotton,  to  prevent  its 
being  traced  by  the  true  owner,  —  a  scheme  in  the  execution  of  which 
he  was  aided  by  Mann  and  the  libellants. 

Now,  what  must  be  the  legal  effect  of  all  this?  What  the  effect  of 
intermingling  the  twenty-five  bales  with  the  one  hundred  and  forty 
that  belonged  to  Porter,  in  such  a  manner  that  they  could  not  be  dist  La- 
guished,  and  so  completely  that  it  is  impossible  for  either  party  to 
identify  any  one  of  the  one  hundred  and  sixty-five  bales  as  a  part  oi 
the  lot  of  twenty-five,  or  of  the  larger  lot  of  one  hundred  and  forty- 
shipped  on  the  "Colson"?  We  can  come  to  no  other  conclusion 
than  this:  the  right  of  possession  of  the  whole  was  in   Porter,  and 


696  CARRIERS    OF    GOODS. 

neither  he  who  caused  the  confusion,  nor  any  one  claiming  under  him, 
is  entitled  to  any  bale  which  he  cannot  identify  as  one  of  the  lot  of 
twenty-five.  It  is  admitted,  the  general  rule  that  governs  cases  of 
intermixture  of  property  has  many  exceptions.  It  applies  in  no  case 
where  the  goods  intermingled  remain  capable  of  identification,  nor 
where  they  are  of  the  same  quality  or  value ;  as  where  guineas  are 
mingled,  or  grain  of  the  same  quality.  Nor  does  the  rule  apply  where  the 
intermixture  is  accidental,  or  even  intentional,  if  it  be  not  wrongful. 
But  all  the  authorities  agree,  that  if  a  man  wilfully  and  wrongfully 
mixes  his  own  goods  with  those  of  another  owner,  so  as  to  render 
them  undistinguishable,  he  will  not  be  entitled  to  his  proportion,  or 
any  part,  of  the  property.  Certainly  not,  unless  the  goods  of  both 
owners  are  of  the  same  quality  and  value.  Such  intermixture  is  a 
fraud.  And  so,  if  the  wrong-doer  confounds  his  own  goods  with  goods 
which  he  suspects  may  belong  to  another,  and  does  this  with  intent 
to  mislead  or  deceive  that  other,  and  embarrass  him  in  obtaining  his 
right,  the  effect  must  be  the  same 

See,  upon  this  subject  of  confusion  of  goods,  2  Kent's  Com.  (11th  ed.) 
364,  365 ;  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  62, 108  ;  Weil  v.  Silverston, 
6  Bush  (Ky.),  698  ;  Hesseltine  v.  Stock  well,  30  Me.  370. 

It  follows  from  all  we  have  said  that  the  delivery  by  the  "  Idaho  " 
of  the  one  hundred  and  sixty -five  bales,  to  the  order  of  Porter  &  Co., 
was  justifiable,  and  that  the  libellants  have  sustained  no  legal  injury. 

Decree  affirmed. 


e.    Delivery  to  Wrong  Party  through  Mistake  or  Fraud. 

POWELL  v.    MYERS. 

26  Wend.  (N.  Y.  Ct.  of  Errors)  591.     1841. 

Error  from  the  Supreme  Court.  Myers  brought  an  action  in  the 
common  pleas  of  New  York  against  Powell  and  others  as  common 
carriers,  for  the  loss  of  a  trunk  and  its  contents,  taken  on  board  a 
steamboat  owned  by  the  defendants,  at  West  Point,  by  a  son  of  the 
plaintiff,  who,  at  the  time,  was  a  minor,  and  took  passage  in  the 
boat  for  New  York.  The  boat  usually  left  Newburg  at  five  o'clock 
p.m.,  and  arrived  at  New  York  between  nine  and  ten  the  same  even- 
ing. Shortly  before  arriving  at  the  dock,  a  young  man  named 
Pruyn,  who  accompanied  the  plaintiff's  son  from  West  Point,  in  his 
presence  inquired  of  the  master  of  the  boat  whether  their  baggage 
would  be  safe  on  board  the  boat  during  the  night;  who  answered 
that  it  would  be  perfectly  safe,  for  they  stationed  a  watch  for  its 
protection  until  morning.  Passengers  occasionally  stayed  on  board 
during  the  night,  but  usually  left  the  boat  on  arriving  at  the  city. 


DELIVERY   BY   CARRIER.  697 

Pruyn  stayed  on  board,  but  the  plaintiff's  son  left  the  boat  soon 
after  its  arrival,  and  on  the  next  morning,  at  about  eight  o'clock, 
went  to  the  boat  for  his  trunk,  and  then  learned  that  it  had  been 
delivered  on  a  forged  order.  A  negro  man  had  come  on  board  and 
presented  an  order  for  the  truck.  The  master  of  the  boat  pointed  it 
out  to  the  negro.  Pruyn,  who  was  present,  observed  that  the  trunk 
had  been  left  in  his  charge.  The  master  of  the  boat  said  there  was 
an  order  for  it,  when  Pruyn  said  very  well,  and  told  the  negro  to 
take  it.  The  judge  charged  the  jury  that  the  defendants  were 
responsible  for  the  delivery  of  the  baggage  of  travellers  in  their 
boat,  unless  lost  by  inevitable  accident;  that  if  the  trunk  had  not 
been  delivered  to  the  passenger,  and  was  not  so  lost,  the  defendants 
remained  liable  even  after  the  boat  arrived  at  the  wharf.  To  which 
charge  the  counsel  for  the  defendants  excepted.  The  jury  found  a 
verdict  for  the  plaintiff,  on  which  judgment  was  rendered:  which 
judgment  was  affirmed  by  the  Supreme  Court  on  writ  of  error,  on  the 
ground  that  this  case  was  not  distinguishable  from  those  of  Hollister 
v.  Nowlen,  19  Wendell,  234,  and  Cole  v.  Goodwin,  id.  251.  The 
defendants  removed  the  record  into  this  court  by  writ  of  error, 
where  the  case  was  submitted  on  printed  arguments  by :  — 

By  the  Chancellor.  ....... 

It  appears  from  the  testimony,  that  the  boat  usually  arrived  at 
New  York  in  the  night,  and  though  the  passengers  usually  landed 
with  their  baggage  before  morning,  they  frequently  remained  on 
board  through  the  night.  The  jury  therefore  were  right  in  conclud- 
ing that  the  baggage  left  on  board  was  in  the  custody  of  the  master 
in  his  capacity  of  common  carrier  until  it  was  called  for  at  the  usual 
time  in  the  morning,  after  his  arrival  at  his  place  of  destination. 
The  owners  of  the  boat,  in  whose  custody  the  trunk  was,  were  there- 
fore clearly  liable  for  the  misdelivery  thereof  to  the  colored  man, 
upon  the  forged  order,  and  were  rightfully  charged  with  the  loss. 
Even  in  the  ordinary  case  of  a  bank  which  pays  out  the  money  of  a 
depositor  upon  a  forged  check,  in  his  name,  the  institution  and  not 
the  depositor  must  sustain  the  loss.  So,  too,  the  warehouseman, 
who  is  not  liable  to  the  same  extent  as  the  common  carrier,  has 
been  held  liable  for  delivering  the  goods  intrusted  to  his  care  to 
the  wrong  person,  where  such  delivery  was  by  mistake  merely  and 
not  intentionally  wrong.  See  Devereux  v.  Barclay,  2  Barn.  &  Aid. 
Bep.  702. 

For  these  reasons  I  think  the  decisions  of  the  judge  who  tried  the 
cause  and  of  the  Supreme  Court  were  correct,  and  that  the  judgment 
should  be  affirmed. 


698  CAKKIEKS    OF    GOODS. 

AMERICAN   EXPRESS   CO.    v.    STACK. 

29  Ind.  27.     1867. 

Gregory,  J.  Stack  sued  the  appellant  for  the  non-delivery  of 
two  bonds.  The  defendant  answered  by  the  general  denial,  with  an 
agreement  between  the  parties  that  all  legal  defence  could  be  given 
in  evidence  under  it.  Trial  by  the  court;  finding  for  the  plaintiff; 
motion  for  a  new  trial  overruled,  and  judgment. 

The  evidence  which  is  made  part  of  the  record  tends  to  show  that 
the  plaintiff  enlisted  as  a  soldier  in  the  army  of  the  United  States, 
in  Lockport,  Niagara  County,  New  York,  in  September,  1864,  and 
received,  as  a  bounty  from  that  county,  two  hundred  dollars  in  cash 
and  the  bonds  described  in  the  complaint,  which  bonds  were  imme- 
diately sent  by  express  to  the  plaintiff's  wife,  Hannah  Stack,  at 
Chicago,  Illinois.  In  July,  1865,  the  plaintiff  was  mustered  out  of 
the  service  near  Albany,  New  York,  and  arrived  home  in  Chicago 
on  the  16th  of  that  month.  A  few  days  before  the  plaintiff  got 
home  his  wife  appeared  at  the  provost  marshal's  office  in  Chicago, 
and  after  a  conference  with  Captain  James,  the  provost  marshal, 
she  was  referred  by  him  to  the  witness,  Eveleth,  then  a  clerk  in 
the  office,  with  a  request  that  he  attend  to  her  business.  She  then 
exhibited  to  Eveleth  a  paper  purporting  to  be  a  telegram  from  her 
husband,  James  Stack,  from  number  64  Montgomery  Street,  Albany, 
New  York,  directing  her  to  send  those  bonds  to  Albany,  New 
York,  64  Montgomery  Street.  She  handed  Eveleth  two  bonds,  an- 
swering the  description  of  those  in  the  complaint  referred  to, 
who  thereupon  enclosed  them  properly  and  directed  the  package 
"To  James  Stack,  64  Montgomery  Street,  Albany,  N.  Y."  He  also 
indorsed  on  the  back  of  the  package  the  amount  of  the  enclosed,  and 
the  words  "From  Mrs.  Hannah  Stack,  Chicago,  Illinois."  He,  at 
the  same  time,  wrote  a  letter,  in  the  name  of  Hannah  Stack,  to  be 
sent  by  mail,  informing  James  Stack  of  the  transmission  of  the  bonds 
by  express,  and  addressed  the  letter  to  "James  Stack,  64  Mont- 
gomery Street,  Albany,  New  York."  On  the  11th  of  July,  John 
Staving,  then  receiving  clerk  of  the  United  States  Express  Company 
at  Chicago,  received  the  package  and  gave  a  receipt  therefor,  in 
which  that  company  undertook  to  forward  the  package  to  the 
nearest  point  reached  by  it,  and  that  the  company  should  only  be 
liable  as  forwarders.  The  United  States  Express  Company  carried 
the  package  to  Buffalo,  New  York  (the  end  of  the  line),  and  there 
delivered  it  to  the  appellant.  The  package  reached  Albany,  New 
York,  on  the  14th  of  July,  1865,  and  was  there  delivered,  by  the 
duly  authorized  agent  of  the  defendant,  on  the  15th  (the  next  day) 


DELIVERY    BY    CARRIER.  699 

to  a  man  representing  himself  to  be  James  Stack,  under  these  cir- 
cumstances: On  the  day  of  its  arrival,  the  delivery  agent  of  the  com- 
pany called  with  it  at  64  Montgomery  Street,  which  was  a  hotel,  or 
boarding-house,  kept  by  Lillis,  and  there  found,  on  inquiry,  that 
Stack  was  not  then  in,  whereupon  the  package  was  returned  to  the 
defendant's  office.  On  the  morning  of  the  loth  of  July,  a  man  called 
at  the  office,  representing  himself  to  be  James  Stack,  and  showed 
the  agent  a  letter  purporting  to  come  from  Hannah  Stack,  from 
Chicago,  informing  him  (Stack)  that  the  bonds  had  been  sent  In- 
express.  He  was  informed  by  the  agent  that  he  must  get  some  one 
to  identify  him  —  that  the  letter  was  not  enough.  The  man  left  the 
office,  and  shortly  after  returned  with  Lillis.  The  agent  was  unac- 
quainted with  the  latter,  and  required  some  one  known  to  him  (the 
agent)  to  be  brought  to  vouch  for  Lillis.  Slevin  was  then  brought 
in,  who  was  known  to  the  agent  to  be  a  reliable  man.  Slevin  did 
not  know  Stack,  and  so  informed  the  agent,  but  did  know  Lillis,  and 
represented  him  to  the  agent  as  all  right  and  reliable.  The  agent 
then  asked  Lillis  if  the  man  with  him  was  James  Stack,  and  Lillis 
replied  that  he  was,  and  was  staying  at  his  (Lillis')  house.  Lillis 
was  asked  no  other  questions  and  gave  no  other  information.  The 
man  calling  himself  Stack  was  asked  by  the  agent,  in  the  presence 
of  Lillis,  what  the  package  contained,  and  the  man  replied  that  it 
contained  a  bond  for  $500,  and  one  for  $300,  Niagara  County  war 
bonds,  and  was  from  his  wife,  Hannah  Stack,  from  Chicago.  The 
agent  thereupon  delivered  the  package  to  the  supposed  Stack.  The 
person  to  "whom  the  package  was  delivered  was  not  the  real  James 
Stack,  but  a  swindling  pretender,  who  had  doubtless  sent  the  false 
despatch  to  Stack's  wife.  The  appellee  did  not  send  the  despatch 
which  his  wife  got,  nor  had  he  any  knowledge  of  its  being  sent. 
Lillis  had  no  other  knowledge  or  information  about  the  pretender 
than  this:  About  a  week  or  ten  days  before  the  package  was  delivered, 
a  man  came  to  his  house  and  said  his  name  was  James  Stack,  and 
that  he  was  a  soldier,  stopping  at  the  barracks,  then  located  between 
Troy  and  Albany,  and  asked  permission  of  Lillis  for  a  room  to  write 
a  letter  to  his  wife,  which  was  given.  After  the  letter  was  written. 
he  asked  Lillis  for  his  address,  which  was  given  thus:  "James 
Lillis,  64  Montgomery  Street,  Albany,  Xew  York."  Stack  said  he 
would  have  a  letter  addressed  to  him  at  Lillis'  house,  and  requested 
that  if  it  came  it  should  be  kept.  After  that  he  called  occasionally 
at  Lillis'  house  and  took  meals,  up  to  the  time  the  package  came; 
and,  in  the  mean  time,  a  letter  came  to  Lillis'  house  for  him.  and  In- 
stated to  Lillis  that  the  letter  came  from  his  wife,  and  informed 
him  of  the  sending  of  a  package  by  express.  The  agent  of  the 
express  company,  at  the  time  he  delivered  the  package,  was  not 
aware  of  the  nature  or  extent  of  Lillis'  knowledge  and  acquaintance 
with  the  pretender,  nor  did  he  ask  any  question  or  make  any  effort 
to  acquire  such  information. 


700  CAKRIERS    OF    GOODS. 

It  is  claimed,  that,  admitting  the  liability  assumed  by  the  appel- 
lant to  be  that  of  a  common  carrier,  yet  that  such  liability  ter- 
minated when  the  package  was  taken  to  64  Montgomery  Street,  and 
thereafter  the  appellant  was  only  bound  to  ordinary  diligence  in 
keeping  the  package  for  the  owner.  It  is  also  urged  that  the  con- 
tract entered  into  between  the  plaintiff  and  the  United  States 
Express  Company  is  to  govern  in  fixing  the  liability  of  the  appellant. 

It  is  not  necessary,  for  the  determination  of  this  case,  that  we 
should  pass  upon  either  of  these  propositions.  For  in  any  event  the 
liability  of  the  company  could  not  be  less  than  that  of  a  warehouseman. 

In  Devereux  et  al.  v.  Barclay  et  aL,  2  Bar.  &  Aid.  702,  it  was 
held  that  trover  will  lie  for  the  misdelivery  of  goods  by  a  ware- 
houseman, although  such  misdelivery  bas  occurred  by  mistake  only. 
Nor  will  a  delivery  on  a  forged  order  protect  the  warehouseman. 
Lubbock  v.  Inglis,  1  Starkie,  104  (2  En.  Com.  L.  215). 

The  court  below  found,  under  the  facts,  that  there  was  a  want  of 
ordinary  diligence  on  the  part  of  the  company  in  the  delivery  of  the 
package.  We  think  the  evidence  justifies  this  conclusion.  But  we 
are  not  inclined  to  apply  this  rule  to  the  delivery  of  goods  intrusted 
to  warehousemen  and  others  in  like  condition.  There  must  be  a 
delivery  to  the  right  person.  It  is  always  in  the  power  of  the 
person  having  the  goods  in  charge  to  identify  the  owner.  If  he 
suffer  himself  to  be  imposed  on,   it  is  his  own  fault. 

The  judgment  is  affirmed,  with  costs,  and  three  per  cent  damages.1 


PRICE   v.   OSWEGO   &   SYRACUSE  R.   CO. 
50  N.  Y.  213.     1872. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  affirming  a  judgment  in  favor  of 
defendant,  entered  upon  the  report  of  a  referee. 

The  action  was  brought  against  defendant  as  common  carrier  to 
recover  the.  value  of  three  bales  of  bags  shipped  by  plaintiff  at 
Syracuse,  consigned  to  S.  H.  Wilson  &  Co.,  Oswego.  The  facts  are 
stated  sufficiently  in  the  opinion. 

Grover,  J.  The  referee  found  as  a  conclusion  of  law,  from  the 
facts  found,  that  the  defendant,  having  delivered  the  bags  to  the 
person  who  made  the  order  for  them  (although  in  the  name  of  a 
fictitious  firm)  without  notice  of  the  fraud,  was  not  liable  to  the 
plaintiff  therefor.  To  this  conclusion  the  appellant  excepted.  The 
counsel  for  the  respondent  insists  that  if  the  legal  conclusion  is  not 
sustained  by  the  facts  found,  the  court  will  assume  that  he  found 

1  Ace. :  Pacific  Express  Co.  v.  Shearer,  160  111.  215,  43  N.  E.  R.  816,  37  L.  R.  A. 
177,  52  Am.  St.  R.  324. 


DELIVERY'    BY    CARRIER.  701 

6uch  additional  facts  as  were  necessary  for  that  purpose.     This  p 
tion  is  correct,  subject,   however,  to  the  qualification   that  it  must 
appear  from  the  case  that  such  additional  findings  would  have  been 
warranted   by  the  evidence.     Oberlander  v.  Spiess,  45  N.   Y.    L75. 
In  the  present  case  there  was  no  evidence  warranting  the  finding  of 
any  additional  facts   sustaining   the  legal   conclusion.     The   qu< 
tion,  therefore,  is  whether  such  conclusion  is  sustained  by  the  facts 
found.     The  facts  (so  far  as  material)  found  were:  That  the  plain- 
tiff, on  and  prior  to  September,  1806,   was  a  dry -goods  merchant, 
doing  business  in  Syracuse.     That  the  defendant  was   a  common 
carrier  of  goods  between  Syracuse  and  Oswego.     That  a  few  days 
prior  to  the  10th  of  September,  1866,  Caleb  B.  Morgan,  a  resident 
of  Syracuse,  received  a  letter  by  mail,  dated  and  mailed  at  Oswego, 
directed  to  him  at  Syracuse,  signed  S.  H.  Wilson  &  Co.,  inquiring 
the  price  of  bags.     That  Morgan  had  been  a  dealer  in  bags,  but  had 
given  up  the  business,  and  upon  receipt  of  the  letter  he  delivered 
the  same  to  the  plaintiff,  who  kept  bags  for  sale,  and  requested  the 
plaintiff  to  inform  him  of  the  price  of  the  said  bags.     That  Morgan 
did  not  know  any  person  or  firm  by  the  name  of  S.  H.  Wilson  & 
Co.,  nor  had  he  heard  of  any  such  person  or  firm,  but  delivered  the 
letter  to  the  plaintiff,  believing  it  had  been  written  in  good  faith  in 
the  ordinary  course  of  business  by  a  firm  wishing  to  purchase  bags. 
That  the  plaintiff  upon  receipt  of  the  letter  gave  to  Morgan  the 
prices  of  bags,  who  communicated  them  in  a  letter,  addressed  and 
mailed  by  him  to  S.  H.  Wilson  &  Co.,  Oswego.     That  afterward, 
and  on  the  10th  or  11th  of  September,  the  plaintiff  received  through 
the  post-office  at  Syracuse  a  letter,  mailed  at  Oswego,  as  follows :  — 

*'  Oswego,  Sept.  10,  1866. 
"Mr.  Milton  Price,  —  Sir:  We  are  in  want  of  some  bags,  and  wrote 
Mr.  Morgan,  supposing  he  was  in  the  trade,  and  he  has  quoted  your  pricos 
for  stock,  etc.  Please  send  us  by  rail  100  of  each,  and  hope  you  can  make 
the  price  a  little  less,  and  will  be  able  to  give  you  a  larger  order  soon.  Please 
send  bill  by  mail,  and  we  will  remit  check  for  amount  of  same. 

"(Signed)  S.  II.  Wilson  &  Co." 

That  on  the  13th  September,  1866,  the  plaintiff,  with  a  view  of 
complying  with  the  order,  delivered  to  the  defendant  at  Syracuse 
three  bales  of  bags,  of  the  value  of  $205,  directed  to  S.  H.  Wilson 
&  Co.,  Oswego,  and  the  defendant  undertook  as  a  common  carrier  to 
.  carry  the  bags  to  Oswego,  and  there  deliver  them  to  the  consigns 
and  also  mailed  a  bill  of  the  bags  to  S.  H.  Wilson  &  Co.,  Oswego. 
That  the  defendant  carried  the  bags  to  Oswego  the  same  day,  and 
soon  after  their  arrival  at  Oswego  and  on  the  same  day,  a  man  called 
at  the  office  of  the  defendant  there,  and  asked  defendant's  agent  if 
three  bales  of  bags,  directed  to  S.  H.  Wilson  &  Co.,  had  arrived. 
He  was  informed  that  they  had,  and  he  then  said  they  were  what  he 
wanted,  and  offered  to  and  did  pay  the  freight  thereon,  and  they 


702  CARRIERS    OF   GOODS. 

were  delivered  to  him  by  the  agent  of  the  defendant  upon  signing  a 
receipt  therefor  in  the  name  of  S.  H.  Wilson  &  Co.,  and  they  were 
taken   away.     That  the  plaintiff  did  not  know  any  person  or  firm 
by  the  name  of  S.  H.  Wilson  &  Co.,  and  had  no  information  of  any 
such  person  or  firm,  except  what  was   contained   in  their  letter  to 
him  of  September  10th  and  in  the  letter  to  Morgan.     In  fact,  there 
was  no  such  firm  of  S.  H.  Wilson  &  Co.  in  business  at  Oswego  or 
elsewhere,  and  the  letter  written  in  the  name  of  S.  H.  Wilson  &  Co. 
and  the  order  were  part  of  a  scheme  on  the  part  of  some  person  or 
persons  to  defraud  the  plaintiff  of  his  property,  and  no  part  of  the 
purchase  price  has  been  paid,  nor  has  the  property  been  recovered 
or  the  person  who  received  the  same  from  the  defendant  been  traced. 
That  the  defendant,  when  said  bags  were  received   and  delivered, 
did  not  know  any  person  or  firm  by  the  name  of  S.  H.  Wilson  &  Co., 
nor  did  the  defendant  know  the   person  to  whom  the  bags  were 
delivered,  nor  did  they  require  any  evidence  of  the  identity  of  the 
person,  or  of  his  being  connected  with  the  firm  of  S.  H.  Wilson  &  Co. 
That  it  was  the  usual  custom  of  the  defendant  not  to  deliver  goods 
to   a  stranger  without   his  being   identified    or  his   satisfying  the 
defendant  by  papers  or  otherwise  that  he  was  entitled  to  receive 
them;  and  further,  that  reasonable  care  and  prudence  required  such 
precautions  to  be  taken.     That  the  person  to  whom  the  bags  were 
delivered  by  the  defendant  was  the  person  who  wrote   the  letters 
signed  S.  H.  Wilson  &  Co. ,  or  his  authorized  agent  to  receive  said 
bags  in  case  they  should  be  sent  pursuant  to  the  order  of  September 
10th.     That  there  was  no  evidence  from  which  it  could  be  found 
whether  his  name  was  S.  H.  Wilson  or  not.    That  when  the  plaintiff 
sent  the  bags  he  supposed  that  S.  H.  Wilson  &  Co.  was  the  name  of 
a  firm  at  Oswego,  and  when  the  defendant  delivered  them  at  Oswego 
they  had  no  knowledge  of  the  fraud,  and  supposed  that  the  person 
to  whom  they  were  delivered  was  a  member  of  or  represented  the 
firm  of  S.  H.  Wilson  &  Co.     It  is  the  duty  of  a  carrier  to  carry  the 
goods  to  the  place  of  delivery  and  deliver  them  to  the  consignee. 
When  goods  are  safely  conveyed  to  the  place  of  destination  and  the 
consignee  is  dead,  absent,  or  refuses  to  receive,  or  is  not  known  and 
cannot  after  reasonable  diligence  be  found,  the  carrier  may  be  dis- 
charged from  further  responsibility  as  carrier  by  placing  them  in  a 
proper  warehouse  for  and  on  account  of  the  owner.     Fisk  v.  Newton, 
1  Denio ,  45.     The  responsibility  continues  as  carrier  until  discharged 
in  the  manner  above  stated.     Hence,  a  delivery  to  a  wrong  person, 
although  upon  a  forged  order,  will  not  exonerate  the  carrier  from 
responsibility.     Powell  v.  Myers,  26  Wend.  591  [696].     In  examin- 
ing the  cases,  the  distinction  between  the  liability  of  carriers  and 
warehousemen  must  be  kept  in  mind.     The  former  is  responsible  as 
insurer;  the  latter  for  proper  diligence  and  care  only,  in  the  pres- 
ervation of  the  property  and  its  delivery  to  the  true  owner.     The 
former  must,  at  their  peril,  deliver  property  to  the  true  owner,  for 


DELIVERY    BY    CARRIER.  703 

if  delivery  be  made  to  the  wrong  person,  either  by  an  innocent  mis- 
take or  through  fraud  of  another,  they  will  be  responsible,  and  tin- 
wrongful  delivery  will  constitute  a  conversion.     McEntee  '•.  The  New 
Jersey  Steamboat  Co.,  45  N.  Y.  34  [678].     It  is  of  the  liability  oi 
warehouseman  after  the  responsibility  as  carrier  had  terminated  that 
the  chief  judge  is  speaking  in  the  opinion  in  Bnrnell  v.  The  X.  Y. 
Central  R.  R.  Co.,  45  N.  Y.  184,  where  he  holds  that  the  defendant 
was  responsible  only  for  due  care  and  diligence.     In   the   present 
case   the   goods    were   consigned   to  S.  H.  Wilson   &   Co.,  Os 
This  plainly  indicated  some  person,  or,   rather,   persons,  known  by 
and  doing  business  under  that  name.     But  as  there  was  no  such 
firm,  and   so    far   as    the    findings    or   case    show,  never  had  been, 
delivery  could  not  be  made  to  the  consignees.     Then,   as  already 
seen,  it  became  the  duty  of  the  carrier  to  warehouse  the  goods  for 
the    owner.     Instead  of  this,    the   defendant  delivered  them    to   a 
stranger  without  making  any  inquiry  as  to  who  or  what   he  was, 
simply   upon    his    inquiring   if   such  goods   for  Wilson  &  Co.  had 
arrived,    and  upon  being  informed  that  they  had,    saying  that  he 
wanted  them.     If  the  case  had  been  determined  by  the  referee  upon 
the  question  whether  due  care  had  been  used  by  the  defendant,  it 
would  have  been  necessary  to  determine  whether  the  goods  were  at 
the  time  held  as  carrier  or  as  bailee  of  another  character,  as  in  the 
latter  case   only  will   the  exercise  of  proper  care  exonerate  from 
liability  for  the  loss  of  the  property.     But  as  the  legal  conclusion 
of   the  referee  shows  that  the  judgment  was  not  based  upon   any 
finding   upon  that  question,   but  upon  the  legal  conclusion  of   the 
referee,  that  the  defendant  was  discharged  from  liability  by  having 
delivered  the  goods  to  the  person  who  wrote  the  letters  and  orders, 
or  his  authorized  agent,  it  is  unnecessary  to  determine  whether  the 
defendant  at  the  time  held  the  goods  as  carrier  or  warehouseman, 
because  if  the  legal  conclusion  is  correct,  a  delivery  to  this  person 
or  his  agent  would  have  discharged  the  defendant   in  either  case, 
entirely    irrespective    of   the   degree   of   care  exercised  in   making 
delivery.     The  entire  findings  of  the  referee  show  that  he  would 
have  held  the  defendant  liable  had  the  delivery  under  a  like  state  of 
facts  been  made  to  any  other  than  this  person.     The  opinion  of  the 
learned  judge,  given  at  the  General  Term,  shows  that  the  judgment 
was  affirmed  by  that  court  upon  the  same  ground,  and  that  the  case 
would  have  been  differently  decided  had  the  delivery  been  made  to 
some  other  person.     Indeed,  this  is  the  only  reason  that  can  with 
any  plausibility  be   given   for   the  judgment.     As  a  finding,  that 
proper  care  had  been  exercised  by  a  bailee  of  goods  whoso  duty  it 
was  to  keep  them  for  the  owner,  when  he  had  delivered  them  to  an 
entire  stranger,  who  claimed  to  be  the  owner,  and  gave  no  evidence 
of  his  right  except  to  make  inquiry  if  they  had  arrived  for  the  con- 
signee, and  saying  that  he  wanted  them,  would  be  wholly  unsup- 
ported by  the  evidence.     The  question  is  whether  the  person  who 


704  CARRIERS    OF    GOODS. 

wrote  the  order  acquired  a  right,  so  far  as  the  defendant  was  con* 
cerned,  to  a  delivery  of  the  goods;  in  other  words,  whether  as  to 
it  he  was  the  consignee.  If  he  was,  the  conclusion  of  the  referee 
was  correct.  In  that  case,  delivery  to  him  discharged  the  carrier 
upon  the  principle  that  any  delivery,  valid  as  to  the  consignee,  is  a 
defence  for  the  carrier  as  to  all  persons.  It  would  hardly  be  claimed, 
in  case  there  had  been  a  firm  doing  business  at  Oswego  under  the 
name  of  S.  H.  Wilson  &  Co.,  a  swindler  would  make  himself  con- 
signee of  goods  or  acquire  any  right  whatever  thereto,  which  were 
in  fact  consigned  to  such  firm,  simply  by  showing  that  he  had  forged 
an  order  in  the  name  of  the  firm  directing  such  consignment.  If  he 
would  not  thereby  acquire  any  right  to  the  goods,  delivery  to  him 
would  not  protect  the  carrier  any  more  than  if  made  to  any  other 
person.  In  the  American  Express  Co.  v.  Fletcher,  25  Indiana,  492, 
the  facts  were  that  a  person  claiming  to  be  J.  O'Riley  presented 
himself  to  a  telegraph  operator,  who  was  also  agent  of  the  express 
company,  and  presented  a  despatch  to  be  forwarded  to  the  plaintiff, 
signed  J.  O'Riley,  requesting  him  to  send  $1,900,  which  the  oper- 
ator sent  through.  That  in  due  time  the  operator,  in  his  capacity 
of  agent  for  the  express  company,  received  a  package  purporting  to 
contain  valuables,  addressed  to  J.  O'Riley,  whereupon  the  same  per- 
son who  had  sent  the  despatch  presented  himself  and  demanded  the 
package,  which  was  delivered  to  him.  It  turned  out  that  this  per- 
son was  not  J.  O'Riley,  but  a  swindler.  Held,  that  the  express 
company  was  liable  to  the  plaintiff  for  the  money.  The  case  is 
silent  as  to  whether  J.  O'Riley  was  a  fictitious  name,  but  I  infer 
that  it  was  not,  as  the  plaintiff  would  not  be  likely  to  forward  that 
amount  of  money  to  a  person  unknown  to  him.  It  will  be  seen  that 
this  was  a  much  stronger  case  for  the  company  than  is  that  of  the 
present  defendant,  so  far  as  care  was  concerned,  for  the  delivery 
was  made  to  the  person  known  by  the  company  to  be  the  one  who 
sent  the  despatch,  while  the  defendant  knew  nothing  whatever  about 
the  letters  or  order,  or  how  the  goods  came  to  be  forwarded,  con- 
signed as  they  were.  But  the  case  directly  decides  that  no  right  to 
the  package  was  acquired  by  the  swindler  by  sending  a  despatch 
therefor  in  the  name  of  another.  If  no  right  is  acquired  by  sending 
a  despatch  in  the  name  of  a  real  person,  it  is  a  little  difficult  to  see 
how  any  is  acquired  by  writing  in  the  name  of  a  firm  having  no 
existence,  especially  when  the  facts  show,  as  in  the  present  case, 
the  consignor  supposed  he  was  dealing  with  a  substantial  business 
firm,  and  the  consignment  showed  that  it  was  intended  to  be  made 
to  such  a  firm. 

In  Ward  v.  The  Vermont  &  Mass.  R.  R.  [42  Vt.  700]  one  Collins 
represented  to  the  plaintiff  that  there  was  a  person  of  the  name  of  J. 
F.  Roberts  residing  at  Roxbury,  Mass.,  and  fraudulently  induced  the 
plaintiff  to  consign  goods  to  him.  In  fact,  no  such  person  resided 
there.     Upon  the  arrival  of  the  goods  Collins  went  to  a  truckman  and 


DELIVERY   BY    CARRIER. 


705 


personated  Roberts,  and  as  such  sent  the  truckman  for  the  goods,  to 
whom  they  were  delivered  by  the  company.  Held,  that  the  com- 
pany was  liable  to  the  plaintiff  therefor.  That,  in  principle,  is  like 
the  present  case.  In  this  the  swindler  had  in  substa 
to  the  plaintiff  that  there  was  a  business  firm  at  Oswego  wishing 
purchase  bags,  and  had  fraudulently  procured  a  consignment  of  bags 
from  the  plaintiff  to  this  firm,  when  in  fact  there  was  no  such  firm. 
This  gave  the  defendant  no  right  to  deliver  the  goods  to  any  one 
else.  The  argument  for  the  defendant  is  that  the  plaintiff  consigned 
the  goods  to  S.  H.  Wilson  &  Co.,  and  there  being  no  such  firm,  the 
person  signing  the  name  of  the  firm  to  the  letter  and  order  was  in 
respect  to  the  goods  to  be  regarded  as  the  firm  for  the  purpose  of 
delivery  by  the  defendant.  This  is  in  direct  conflict  with  the 
intention  of  the  plaintiff,  apparent  from  the  consignment.  That 
authorized  a  delivery  to  S.  H.  Wilson  &  Co.,  and  to  no  other. 
There  was  not  a  particle  of  proof  that  the  person  who  wrote  the 
letter  was  ever  known  to  any  one  by  that  name.  The  consignment 
did  not,  therefore,  authorize  a  delivery  to  him.  The  defendant  had 
no  knowledge  whatever  of  the  letters,  and  his  writing  them  furnished 
no  evidence  to  it  of  his  doing  business  in  that  name. 

Duff  v.  Budd,  7  Eng.  Com.   Law,  399,  was  a  case  much  like  the 
present.     The  evidence  that  the  person  who  received  the  goods  was 
the  same  stranger  who  ordered  them  in  a  fictitious  name,  was  equally 
strong  as   in  the  present  case,  yet  there  is  no  intimation  that  by 
this  fraud  he  acquired  any  right  to  the  goods  or  the  defendant  any 
authority  to  deliver  them  to  him,  and  the  plaintiff  was  held  entitled 
to  recover  of  the  carrier  therefor.     See  also  Birkett  v.  Willan,  4 
Eng.  Com.  Law,  540.     Heugh  v.  The  London  Railway  Co.,  5  Law 
Exch.  Reports,  51,  and  McKean   v.  Ivor,  6  id.  36,  are  relied  upon 
by  the  defendant.     In  the  former,  one  Nurse,  who  had  been  in  the 
employ  of  a  rubber  company  which  had  ceased  to  do  business,  wrote 
and  sent   to  the  plaintiff  an   order  for    goods  in    the  name  of  the 
company.     The  plaintiff  forwarded  the  goods  by  the  defendant,  a 
common  carrier,  consigned  to  the  company.     The    defendant   ten- 
dered the  goods  at   the    place  where  the  company  had  carried  on 
business.     The  persons  in  possession  refusing  to  receive,  they  were 
taken  away  by  the  defendant,  who,  according  to  the  course  of  busi- 
ness, wrote   a   letter  addressed   to  the   company,    advising   of   the 
receipt  of  the  goods  and  requesting  their  removal.     Nurse   there- 
after came  and  presented  this  letter,  with  ah  order  for  the  delivery 
of  the  goods,  signed  in  the  name  of  the  company  by  him  to  the  de- 
fendant, who  thereupon  delivered  the  goods  to  him.     Held,  that  the 
liability  of  the  defendant  as  carrier  was  terminated  by  the  tender, 
and  that  whether  the  defendant  had  been  negligent  in  the  delivery 
was  a  question  of  fact  for  the  jury.     The  latter  was  a  case  where 
goods  had  been  sent  to  a  fictitious  firm  upon  a  fraudulent  order,  by 
the  plaintiff,  consigned  to  the  firm  at  71  George  Street,  Glasgow, 


700  CARRIERS    OF   GOODS. 

that  being  the  address  specified  in  the  order  by  the  defendant,  a  car- 
rier, who  upon  the  arrival  of  the  goods  followed  the  usage  universal 
among  carriers  at  Glasgow,  which  was  to  send  notice  of  the  arrival 
of  the  goods,  with  a  request  for  their  removal.  This  notice  was 
received  by  the  one  giving  the  order,  who  indorsed  the  name  of  the 
firm  thereon  and  presented  it  to  and  obtained  the  goods  from  the 
defendant,  Held,  that  the  defendant  having  delivered  the  goods 
according  to  the  universal  usage  of  carriers,  had  complied  with  the 
directions  of  the  consignor,  which  must  be  taken  as  including  such 
usage,  and  was  therefore  not  liable. 

In  Stephenson  v.  Hart,  4  Bing.  476,  it  was  expressly  held  that 
the  carrier  had  no  right  to  make  delivery  to  the  writer  of  the  ficti- 
tious order.  But  it  is  said  that  the  plaintiff  intended  the  goods 
should  be  delivered  to  the  writer  of  the  order.  Not  at  all.  He  did 
not  consign  them  to  the  writer  of  any  order,  but  to  Wilson  &  Co. 
This  is  the  only  evidence  of  his  intention  as  to  the  persons  to  whom 
delivery  should  be  made.  It  is  further  said  that  it  was  the  plain- 
tiff's negligence  in  forwarding  the  goods  without  ascertaining  that 
there  was  in  fact  such  a  firm.  I  am  unable  to  see  what  the  defend- 
ant had  to  do  with  this.  Its  duty  was  to  deliver  to  the  firm,  and  if 
that  could  not  be  found,  to  warehouse  and  keep  for  the  owner.  The 
same  might  be  said  in  every  case  where  goods  were  forwarded  to  a 
consignee  supposed  to  be  at  a  particular  place,  but  who  in  fact  was 
not  there.  The  usage  of  the  defendant  cannot  avail  him  in  this 
case.  The  referee  has  found  just  what  was  done.  This  accords 
with  the  evidence,   in  which  there  was  no  conflict. 

The  judgment  appealed  from  must  be  reversed,  and  a  new  trial 
ordered,  costs  to  abide  event. 


SAMUEL  v.    CHENEY. 
135  Mass.  278 ;  46  Am.  R.  467.     1883. 

Tort,  against  a  common  carrier,  for  the  conversion  of  a  quantity 
of  cigars.  At  the  trial  in  the  Superior  Court,  before  Colburn,  J., 
the  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiff 
alleged  exceptions.     The  facts  appear  in  the  opinion. 

Morton,  C.  J.  The  principal  facts  in  this  case,  regarded  in  the 
light  most  favorable  to  the  plaintiff,  are  as  follows :  — 

In  June,  1881,  a  swindler,  assuming  the  name  of  A.  Swannick, 
sent  a  letter  to  the  plaintiff  asking  for  a  price  list  of  cigars,  and 
giving  his  address  as  "A.  Swannick,  P.  0.  box  1595,  Saratoga 
Springs,  N.  Y."  The  plaintiff  replied,  addressing  his  letter  accord- 
ing to  this  direction.  The  swindler  then  sent  another  letter  order- 
ing a  quantity  of  cigars.     The  plaintiff  forwarded  the  cigars  by  the 


DELIVERY    BY    CARRIER.  -qj 

defendant,  who  is  a  common  carrier,  and  at  the  same  time  sent  a 
letter  to  the  swindler  addressed  "A.  Swannick,  Esq. ,P.  0.  box  1595, 
Saratoga  Springs,  N.  Y.,"  notifying  him  that  he  had  so  forwarded 
the  goods. 

There  was  at  the  time  in  Saratoga  Springs  a  reputable  dealer  in 
groceries,  liquors,  and  cigars,  named  Arthur  Swannick,  who  had  his 
shop  at  the  corner  of  Ash  Street  and  Franklin  Street,  and  who  issued 
his  cards  and  held  out  his  name  on  his  signs  and  otherwise  as  "A. 
Swannick."  He  was  in  good  credit,  and  wras  so  reported  in  the 
books  of  E.  Russell  and  Company,  a  well-known  mercantile  agency, 
of  whom  the  plaintiff  made  inquiries  before  sending  the  goods.  No 
other  A.  Swannick  appeared  in  the  Saratoga  Directory  for  1881,  or 
was  known  to  said  mercantile  agency.  But  in  June,  1881,  a  man 
hired  a  shop  at  No.  16  Congress  Street,  Saratoga  Springs,  under  the 
name  of  A.  Swannick,  and  also  hired  a  box,  numbered  1595,  in  the 
post-office,  and  used  printed  letter-heads  with  his  name  printed  as 
"A.  Swannick,  P.  0.  box  1595."  This  man  wrote  the  letters  to  the 
plaintiff  above  spoken  of,  and  received  the  answers  sent  by  the 
plaintiff.     He  soon  after  disappeared. 

The  plaintiff  supposed  that  the  letters  were  written  "by,  and  that 
he  was  dealing  with,  Arthur  Swannick.  He  sent  the  goods  by  the 
defendant,  the  packages  being  directed,  "A.  Swannick,  Saratoga 
Springs,  N.  Y." 

The  defendant  carried  the  packages  safely  to  Saratoga  Springs. 
On  July  1,  the  defendant,  by  his  agent,  carried  a  package  of  cigars 
directed  to  A.  Swannick  to  said  Arthur  Swannick,  who  refused  to 
receive  it  on  the  ground  that  he  had  ordered  no  cigars.  Afterwards, 
on  the  arrival  of  the  packages,  the  value  of  winch  is  sought  to  be 
recovered  in  this  suit,  the  defendant  carried  the  same  to  the  shop 
No.  16  Congress  Street,  and  delivered  them  to  the  person  appearing 
to  be  the  occupant  of  the  shop,  and  took  receipts  signed  by  him  as 
"A.  Swannick." 

We  assume  that  his  real  name  was  not  A.  Swannick,  but  that  he 
fraudulently  assumed  this  name  in  Saratoga  Springs  and  in  his 
dealings  with  the  plaintiff. 

The  question  whether,  under  these  circumstances,  the  property  in 
the  goods  passed  to  the  swindler,  so  that  a  bona  fide  purchaser  could 
hold  them  against  the  plaintiff,  is  one  not  free  from  difficulty,  and 
upon  which  there  are  conflicting  decisions.  The  recent  case  of 
Cundy  v.  Lindsay,  3  App.  Cas.  459,  is  similar  to  the  case  at  bar  in 
many  of  its  features ;  and  it  was  there  held  that  there  was  no  sale, 
that  the  property  did  not  pass  to  the  swindler,  and  therefore  that 
the  plaintiffs  could  .recover  its  value  of  an  innocent  purchaser.  That 
this  case  is  very  near  the  line  is  shown  by  the  fact  that  such  emi- 
nent judges  as  Blackburn  and  Mellor  differed  from  the  final  decision 
of  the  House  of  Lords.     Lindsay  v.  Cundy,  1  Q.  B.  D.  348. 

But.  it  is  not  necessary  to  decide  this  question,  because  the  lia- 


708  CARRIERS   OF   GOODS. 

bility  of  the  defendant  as  a  common  carrier  does  not  necessarily 
turn  upon  it.  The  contract  of  the  carrier  is  not  that  he  will  ascer- 
tain who  is  the  owner  of  the  goods  and  deliver  them  to  him,  but 
that  he  will  deliver  the  goods  according  to  the  directions.  If  a  man 
sells  goods  to  A,  and  by  mistake  directs  them  to  B,  the  carrier's 
duty  is  performed  if  he  delivers  them  to  B,  although  the  unexpressed 
intention  of  the  forwarder  was  that  they  should  be  delivered  to  A. 

If,  at  the  time  of  this  transaction,  the  man  who  was  in  correspon- 
dence with  the  plaintiff  had  been  the  only  man  in  Saratoga  Springs 
known  as,  or  who  called  himself,  A.  Swannick,  it  cannot  be  doubted 
that  it  would  have  been  the  defendant's  duty  to  deliver  the  goods  to 
him  according  to  the  direction,  although  he  was  an  impostor,  who 
by  fraud  induced  the  plaintiff  to  send  the  goods  to  him.  Dunbar  v. 
Boston  &  Providence  Bailroad,  110  Mass.  26.  The  fact  that  there 
were  two  bearing  the  name  made  it  the  duty  of  the  defendant  to 
ascertain  which  of  the  two  was  the  one  to  whom  the  plaintiff  sent 
the  goods. 

Suppose,  upon  the  arrival  of  the  goods  in  Saratoga  Springs,  the 
impostor  had  appeared  and  claimed  them;  to  the  demand  of  the 
defendant  upon  him  to  show  that  he  was  the  man  to  whom  they 
were  sent,  he  replies,  "True,  there  is  another  A.  Swannick  here, 
but  he  has  nothing  to  do  with  this  matter;  I  am  the  one  who  ordered 
and  purchased  the  goods;  here  is  the  bill  of  the  goods,  and  here  is 
the  letter  notifying  me  of  their  consignment  to  me,  addressed  to 
me  at  my  P.  0.  box,  1595."  The  defendant  would  be  justified  in 
delivering  the  goods  to  him  whether  he  was  the  owner  or  not,  because 
he  had  ascertained  that  he  was  the  person  to  whom  the  plaintiff  had 
sent  them.  It  is  true  the  defendant  did  not  make  these  inquiries  in 
detail;  but  if,  by  a  rapid  judgment,  often  necessary  in  carrying  on 
a  large  business,  he  became  correctly  satisfied  that  the  man  to  whom 
he  made  the  delivery  was  the  man  to  whom  the  plaintiff  sent  the 
goods,  his  rights  and  liabilities  are  the  same  as  if  he  had  pursued 
the  inquiry  more  minutely. 

The  plaintiff  contends  that  he  intended  to  send  the  goods  to 
Arthur  Swannick.  It  is  equally  true  that  he  intended  to  send 
them  to  the  person  with  whom  he  was  in  correspondence.  We  think 
the  more  correct  statement  is,  that  he  intended  to  send  them  to  the 
man  who  ordered  and  agreed  to  pay  for  them,  supposing,  erro- 
neously, that  he  was  Arthur  Swannick.  It  seems  to  us  that  the 
defendant,  in  answer  to  the  plaintiff's  claim,  may  well  say,  we  have 
delivered  the  goods  intrusted  to  us  according  to  your  directions,  to 
the  man  to  whom  you  sent  them,  and  who,  as  we  were  induced  to 
believe  by  your  acts  in  dealing  with  him,  was  the  man  to  whom  you 
intended  to  send  them;  we  are  guilty  of  no  fault  or  negligence. 

The  case  at  bar  is  in  some  respects  similar  to  the  case  of  M'Kean 
v.  M'lvor,  L.  K.  6  Ex.  36.  There  the  plaintiffs,  induced  by  a  fie- 
titious  order  sent  to  them  by  one  Heddell,  an  agent  of  theirs  to 


DELIVEKY    BY    CAHlilER. 


709 


procure  orders,  sent  goods  by  the  defendants,  who  were  carriers, 
dressed  to  "C.  Tait  &  Co.,  71  George  Street,  Glasgow."     There 
no  such  firm  as  C.  Tait  &  Co.,  but  Heddell  had  made  arrangem* 
to  receive  the  goods,  at  No.  71  George  Street.     Upon  the  arrival  of 
the  goods,  the  defendants,  in  the  usual  course  of  bus  in.  at  a 

notice  to  71  George  Street  for  the  consignee  to  call  for  the  good-, 
the  notice  saying  that  it  ought  to  be  indorsed  so  as  to  operate  as  a 
delivery  order.  Heddell  indorsed  the  notice  in  the  name  of  "C. 
Tait  &  Co. ,"  and  sent  it  to  the  defendants  by  a  carter,  to  whom  the 
goods  were  delivered.  It  was  held  that  the  defendants  were  not 
liable,  upon  the  ground  that  no  negligence  was  shown,  and  that, 
having  delivered  the  goods  according  to  the  directions  of  the  plain- 
tiff, they  had  performed  their  duty;  and  the  fact  that  they  delivered 
to  some  person  to  whom  the  plaintiff  did  not  intend  delivery  to  be 
made,  was  not  sufficient  to  make  them  liable  for  a  conversion.  See 
Heugh  v.  London  &  North  Western  Railroad,  L.  R.  5  Ex.  51; 
Clough  v.  London  &  North  Western  Railroad,  L.  R.  7  Ex.  26. 

The  cases  of  Winslow  v.  Vermont  &  Massachusetts  Railroad,  42 
Vt.  700,  American  Express  Co.  v.  Fletcher,  25  Ind.  492,  and  Price 
v.  Oswego  &  Syracuse  Railway,  50  N.  Y.  213  [700],  differ  widely  in 
their  facts  from  the  case  at  bar,  and  are  distinguishable  from  it. 

Upon  the  facts  of  this  case,  we  are  of  opinion  that  the  defendant 
is  not  liable,  in  the  absence  of  any  proof  of  negligence;  and  there- 
fore that  the  rulings  at  the  trial  were  sufficiently  favorable  to  the 
plaintiff.1 

Exceptions  overruled. 

1  The  plaintiff  requested  the  judge  to  rule  that  on  the  facts,  which  were  undisputed 
and  agreed,  he  was  entitled  to  a  verdict.  The  judge  refused  so  to  rule.  The  plaintiff 
then  requested  the  judge  to  rule  that,  if  the  jury  believed  that  in  shipping  these 
goods  the  plaintiff  intended  as  the  consignee  A.  Swanuick,  the  person  who  was  well 
rated  in  the  commercial  agency  books,  and  that  that  intent  was  properly  expressed  in 
the  address  on  the  packages,  and  that  the  name  of  the  person  to  whom  delivery  was 
in  fact  made  was  not  A.  Swannick,  they  must  find  a  verdict  for  the  plaintiff.  The 
judge  refused  so  to  rule,  and  instructed  the  jury  that,  the  intent  of  the  plaintiff  being 
uncommunicated  to  the  defendant,  except  so  far  as  expressed  in  the  address  on  the 
packages,  was  of  itself  of  no  importance  ;  and  that  if  the  delivery  was  made  to  a  per- 
son who  was  known  at  Saratoga  Springs  by  that  name  and  no  other,  that  was  enough, 
so  far  as  the  question  of  name  affected  the  legal  result.  The  judge  then  left  the  single 
question  to  the  jury,  as  to  whether  the  defendant  acted  negligently  in  making  the  de- 
livery he  did,  instructing  them  further  that,  although  there  was  no  question  that  there 
was  a  misdelivery  of  the  goods  in  suit,  the  only  question  was,  whether  the  defendant 
was  guilty  of  negligence  in  making  this  misdelivery. 


710  CARRIERS   OF   GOODS. 

EDMUNDS   v.   MERCHANTS'  DESPATCH   TRANSP.    CO. 

135  Mass.  283.     1883. 

Three  actions  of  tort,  with  counts  in  contract,  against  a  com- 
mon carrier,  to  recover  the  value  of  certain  goods  intrusted  to  the 
defendant  by  the  plaintiffs,  at  Boston,  for  carriage  to  Dayton,  Ohio. 
At  the  trial  in  the  Superior  Court,  before  Rockwell,  J.,  the  jury 
returned  verdicts  for  the  plaintiffs;  and  the  defendant  alleged  excep- 
tions.    The  facts  appear  in  the  opinion. 

Morton,  C.  J.  These  three  cases  were  tried  together.  In  some 
features  they  resemble  the  case  of  Samuel  v.  Cheney,  ante,  278  [706]. 
In  other  material  features  they  differ  from  it.  They  also,  in  some 
respects,  differ  from  each  other.  In  two  of  the  cases  a  swindler, 
representing  himself  to  be  Edward  Pape  of  Dayton,  Ohio,  who  is  a 
reputable  and  responsible  merchant,  appeared  personally  in  Boston, 
and  bought  of  the  plaintiffs  the  goods  which  are  the  subject  of  the 
suits  respectively.  In  those  cases  we  think  it  clear,  upon  principle 
and  authority,  that  there  was  a  sale,  and  the  property  in  the  goods 
passed  to  the  purchasers.  The  minds  of  the  parties  met  and  agreed 
upon  all  the  terms  of  the  sale,  the  thing  sold,  the  price  and  time  of 
payment,  the  person  selling  and  the  person  buying.  The  fact  that 
the  seller  was  induced  to  sell  by  fraud  of  the  buyer  made  the  sale 
voidable,  but  not  void.  He  could  not  have  supposed  that  he  was 
selling  to  any  other  person ;  his  intention  was  to  sell  to  the  person 
present,  and  identified  by  sight  and  hearing;  it  does  not  defeat  the 
sale  because  the  buyer  assumed  a  false  name,  or  practised  any  other 
deceit  to  induce  the  vendor  to  sell. 

In  Cundy  v.  Lindsay,  3  App.  Cas.  459,  464,  where  the  question 
was  whether  a  man,  who  in  good  faith  had  bought  chattels  of  a 
swindler  who  had  obtained  possession  of  them  by  fraud,  could  hold 
them  against  the  former  owner,  Lord  Chancellor  Cairns  states  the 
rule  to  be  that,  "  if  it  turns  out  that  the  chattel  has  come  into  the 
hands  of  the  person  who  professed  to  sell  it,  by  a  de  facto  contract, 
—  that  is  to  say,  a  contract  which  has  purported  to  pass  the  property 
to  him  from  the  owner  of  the  property,  —  there  the  purchaser  will 
obtain  a  good  title." 

In  the  cases  before  us,  there  was  a  de  facto  contract,  purporting, 
and  by  which  the  plaintiffs  intended,  to  pass  the  property  and  pos- 
session of  the  goods  to  the  person  buying  them;  and  we  are  of 
opinion  that  the  property  did  pass  to  the  swindler  who  bought  the 
goods.  The  sale  was  voidable  by  the  plaintiffs;  but  the  defendant, 
the  carrier  by  whom  they  were  forwarded,  had  no  duty  to  inquire 
into  its  validity.  The  person  who  bought  them,  and  who  called 
himself  Edward  Pape,  owned  the  goods,  and  upon  their  arrival  in 


DELIVERY    BY    CARRIER.  71 1 

Dayton  had  the  right  to  demand  them  of  the  carrier.     In  delivering 
them  to  him,  the  carrier  was  guilty  of  no  fault  or  negligence.     It 

delivered  them  to  the  person  who  bought  and  owned  them,  who  went 
by  the  name  of  Edward  Pape,  and  thus  answered  the  direction  upon 
the  packages,  and  who  was  the  person  to  whom  the  plaintiffs  Bent 
them.  Dunbar  v.  Boston  &  Providence  Railroad,  110  Mass.  26. 
The  learned  judge  who  tried  the  cases  in  the  Superior  Court  based 
his  charge  upon  a  different  view  of  the  law;  and,  as  the  three  c 
were  tried  together,  there  must  be  a  new  trial  in  each. 

It  seems  to  have  been  assumed  that  the  same  questions  are  rai 
in  each  case.  It  is  proper  that  we  should  add  that  the  third  case 
differs  materially  from  the  others.  In  that  case,  the  contract  did 
not  purport,  nor  the  plaintiffs  intend,  to  sell  to  the  person  who  was 
present  and  ordered  the  goods.  The  swindler  introduced  himself  as 
a  brother  of  Edward  Pape  of  Dayton,  Ohio,  buying  for  him.  Y>y 
referring  to  the  mercantile  agency,  he  tacitly  represented  that  lie 
was  buying  for  the  Edward  Pape  who  was  there  recorded  as  a  man 
of  means.  The  plaintiffs  understood  that  they  were  selling,  and 
intended  to  sell,  to  the  real  Edward  Pape.  There  was  no  contract 
made  with  him,  because  the  swindler  who  acted  as  his  agent  had  no 
authority,  but  there  was  no  contract  of  sale  made  with  any  one  else. 
The  relation  of  vendor  and  vendee  never  existed  between  the  plain- 
tiffs and  the  swindler.  The  property  in  the  goods,  therefore,  did 
not  pass  to  the  swindler;  and  the  defendant  cannot  defend,  as  in 
other  cases,  upon  the  ground  that  it  has  delivered  the  goods  to  the 
real  owner.  Hardman  v.  Booth,  32  L.  J.,  X.  S.,  Ex.  105;  Kings- 
ford  v.  Merry,  26  L.  J.,  N.  S.,  Ex.  83;  Barker  v.  Dinsmore.  7U 
Penn.  St.  427. 

Whether  the  defendant  has  any  other  justification  or  excuse  for 
delivering  the  goods  to  the  swindler  is  a  question  not  raised  by  this 
bill  of  exceptions,  and  not  considered  at  the  trial;  and  therefore  we 
cannot  express  an  opinion  upon  it. 

Exceptions  susta ined. 


WERNWAG   v.    PHIL.,    W.    &   B.    R.   CO. 
117  Penn.  St.  46.     1887. 

[Agreed  statement  of  facts.]  The  defendants  are  common  car- 
riers of  goods  between  Philadelphia,  Pa.,  and  Washington,  I>.  C. 
William  P.  Wernwag  and  T.  Russell  Dawson,  trading  as  Wernwag 
&  Dawson,  are  dry-goods  commission  merchants,  doing  business  in 
the  city  of  Philadelphia.  The  firm  of  E.  F.  Witmer  &  Co.,  of 
Baltimore,  were  the  plaintiffs'  agents  for  the  sale  of  their  good 
the  city  of  Washington,  D.  C.     The  said  firm  of  E.   F.   Witmer  & 


712  CARRIERS    OF    GOODS. 

Co.  employed  one  Wilbur  F.  Murphy  to  take  orders  for  plaintiffs' 
goods  in  Washington,  D.  C.  The  said  Murphy  visited  one  Leopold 
Behrend,  doing  a  dry -goods  business  in  said  city,  and  took  an  order 
for  certain  goods  of  plaintiffs.  This  order  was  entered  by  the  said 
Murphy  on  one  of  the  blanks  of  E.  F.  Witmer  &  Co.,  and  was  trans- 
mitted to  the  plaintiffs.  When  it  was  received  by  them  it  read  as 
follows :  — 

Baltimore,  Nov.  3d.  1883. 
Messrs.  Wernwag  &  Dawson, 

Philadelphia : 
Ship   to   L.    Behrend, 

Washington,    D.    C, 
By   Fast   Freight. 
Terms   5  |  30 — 30   days   extra  dating. 

4  1  5 

&c,  &c,  &c. 

(Signed)  E.    F.    Witmer   &   Co. 

When  plaintiffs  received  this  order,,  for  the  purpose  of  ascertain- 
ing the  financial  responsibility  of  L.  Behrend,  they  examined  the 
volume  of  commercial  reports  in  their  possession,  which  purported 
to  give  a  full  list  of  merchants  doing  business  in  Washington, 
D.  C,  but  the  name  of  L.  Behrend  was  not  on  the  list.  They  had, 
however,  previously  sold  goods  to  one  A.  Behrend,  doing  a  dry-goods 
business  in  said  city  of  Washington,  who  had  been  satisfactory  to 
them  as  a  customer  in  every  respect;  and  in  consequence  of  not 
finding  the  name  of  L.  Behrend  in  the  commercial  report,  they  sup- 
posed that  the  salesman  had  made  a  mistake  in  entering  the  name  of 
the  purchaser  on  the  order,  and  had  written  L.  Behrend  instead  of 
A.  Behrend,  intending  to  write  the  latter. 

Being  of  this  opinion,  the  plaintiffs  determined  to  ship  the  goods 
ordered  to  A.  Behrend,  and  on  November  5,  1883,  shipped  to  him 
by  the  defendant  railroad  five  pieces  of  black  cashmere  and  one  piece 
of  worsted,  of  the  total  value  of  $242.37.  The  goods  were  charged 
to  A.  Behrend,  in  the  books  of  the  plaintiffs;  the  box  was  marked 
"  A.  Behrend,  Washington,  D.  C. ;  "  the  bill  of  lading  or  receipt 
given  for  the  goods  by  the  defendant  describes  the  goods  as  marked 
A.  Behrend,  and  a  bill  was  made  out  by  plaintiffs  in  the  name  of  A. 
Behrend,  and  was  sent  by  post  addressed  to  A.  Behrend. 

The  firm  of  E.  F.  Witmer  &  Co.  were  agents  of  the  plaintiffs  only 
for  the  purpose  of  soliciting  orders  for  goods.  The  plaintiffs  reserved 
to  themselves  the  right  to  determine,  on  the  receipt  of  an  order 
from  E.  F.  Witmer  &  Co.,  whether  or  not  they  would  ship  the 
goods  ordered,  to  the  party  ordering  the  same;  and  the  said  E.  F. 
Witmer  &  Co.  had  nothing  whatever  to  do  with  the  delivery  of  the 
goods  shipped  on  orders  forwarded  by  them.  That  was  controlled 
entirely  by  plaintiffs. 

When  the  package  of  goods  aforesaid  arrived  in  Washington  over 


DELIVERY    BY   CARRIER.  713 

the  line  of  the  defendant's  road,  it  was  claimed  by  the  said  Leopold 
Behrend.  The  said  A.  Behrend,  to  whom  the  plaintiffs  supposed  they 
were  selling  the  goods,  and  whose  name  was  on  the  box,  was  not  then 
in  business  in  Washington,  though  he  was  living  there  at  the  time. 

Before  delivering  the  goods  to  the  said  Leopold  Behrend,  the  agent 
of  the  railroad  company  defendant  inquired  of  the  said  Wilbur  F. 
Murphy,  the  agent  who  had  taken  the  order,  whether  he  had  sold  any 
goods  to  Leopold  Behrend,  and  what  class  of  goods  they  were;  and 
after  Murphy  had  said  that  he  had  sold  goods  to  Leopold  Behrend, 
and  had  described  them,  the  agent  of  the  defendant  delivered  them 
to  Leopold  Behrend.  The  goods  so  delivered  were  the  same  goods 
which  plaintiffs  had  shipped  to  A.  Behrend  as  aforesaid. 

After  the  plaintiffs  had  delivered  the  said  goods  to  defendant  for 
transportation  on  November  5,  1883,  they  heard  nothing  concerning 
them  until  they  received  a  notice,  dated  January  14,  1884,  that 
Leopold  Behrend  had  assigned  his  property  for  the  benefit  of  his 
creditors,  and  requesting  them  to  forward  a  statement  of  their  claim 
to  his  assignee. 

The  assigned  estate  of  the  said  Leopold  Behrend  never  paid  any 
dividend  to  the  general  creditors,  and  the  goods  so  shipped  by  them 
and  delivered  by  the  defendant  to  the  said  Leopold  Behrend  were 
totally  lost  to  plaintiffs. 

If  the  court  be  of  the  opinion  that  on  the  above  facts  their  judg- 
ment should  be  for  the  plaintiffs,  then  judgment  is  to  be  entered  for 
plaintiffs  for  $242.37,  with  interest  from  November  5,  1883;  but,  if 
not,  then  judgment  to  be  entered  for  the  defendant,  the  costs  to 
follow  the  judgment,  and  either  party  reserving  the  right  to  sue  out 
a  writ  of  error. 

The  judgment  of  the  court  was  for  the  defendant,  no  opinion 
being  filed.  Thereupon  the  plaintiffs  took  this  writ,  assigning  for 
error  the  entry  of  said  judgment. 

Mr.  Justice  Green.  From  the  facts  appearing  in  the  case  stated 
it  is  manifest  that  the  plaintiff  intended  to  sell,  and  In  point  of 
fact  did  consign,  the  goods  in  question  to  A.  Behrend  and  not  to  L. 
Behrend.  They  knew  the  former  and  were  satisfied  to  sell  to  him. 
They  did  not  know  the  latter  and  did  not  intend  to  sell  to  him. 
They  supposed  that  A.  Behrend  was  intended  as  the  purchaser  in 
the  order,  though  L.  Behrend  was  named.  Granting  this  to  be  a 
mistake  of  theirs  in  the  reading  of  the  order,  it  does  not  in  the 
least  alter  the  fact  that  A.  Behrend  was  the  person  to  whom  they 
supposed  they  were  selling.  However  that  may  be,  they  certainly 
consigned  the  goods  to  A.  Behrend,  and  there  was  then  such  a  per- 
son living  in  Washington,  the  place  to  which  the  goods  were 
shipped. 

It  cannot  be  questioned  for  a  moment  that  it  was  the  duty  of  the 
carrier  to  deliver  the  goods  to  the  person  to  whom  the  owner  con- 
signed them.     If  the  carrier  does  not  so  deliver  them,  he  acts  at  his 


714  CARRIERS    OF    GOODS. 

peril,  and  the  whole  risk  of  a  wrong  delivery  rests  upon  him.  In 
Shenk  v.  Steam  Propeller  Co. ,  60  Pa.  109,  we  said,  Sharswood,  J. : 
"  Whatever  doubt  may  hang  over  the  question  as  to  the  termination 
of  a  carrier's  or  other  bailee's  responsibility,  there  is  one  point 
which  is  indisputable,  that  he  must  take  care  at  his  peril  that  the 
goods  are  delivered  to  the  right  person,  for  a  delivery  to  a  wrong 
person  renders  him  clearly  responsible  though  innocently  and  by 
mistake." 

In  the  present  case  the  goods  were  delivered  to  L.  Behrend,  and, 
as  between  the  plaintiffs  and  the  carrier,  that  was  undoubtedly  a 
wrong  delivery.  But  it  is  argued  that  the  delivery  to  L.  Behrend 
was  made  in  consequence  of  the  direction  of  Murphy,  who  it  is  said 
was  the  plaintiffs'  agent.  If,  in  the  case  stated,  it  appeared  that 
Murphy  did  direct  the  delivery  to  L.  Behrend,  this  contention  would 
have  great  force;  because  it  was  Murphy  who  sold  the  goods  and 
sent  the  order;  and  it  would  be  difficult  for  the  plaintiffs  to  escape 
the  consequences  of  his  act  in  directing  the  delivery.  But  the  only 
averment  upon  this  subject  which  the  case  stated  contains,  is  in  the 
following  words :  "  Before  delivering  the  goods  to  the  said  Leopold 
Behrend,  the  agent  of  the  railroad  company  defendant  inquired  of 
the  said  Wilbur  F.  Murphy,  the  agent  who  had  taken  the  order, 
whether  he  had  sold  any  goods  to  Leopold  Behrend  and  what  class 
of  goods  they  were;  and  after  Murphy  had  said  that  he  had  sold 
goods  to  Leopold  Behrend,  and  had  described  them,  the  agent  of 
the  defendant  delivered  them  to  Leopold  Behrend.  The  goods  so 
delivered  were  the  same  goods  which  plaintiffs  had  shipped  to  A. 
Behrend  as  aforesaid."  From  this  it  appears  that  Murphy  gave  no 
directions  to  deliver  the  goods  to  any  one.  He  merely  said  he  had 
sold  goods  to  L.  Behrend  and  described  them.  Granting  that  they 
were  the  same  kind  of  goods,  and  even  the  same  goods,  which  Murphy 
had  sold  to  L.  Behrend  (and  this  important  fact  is  not  mentioned  in 
the  case  stated),  yet  that  was  as  far  as  Murphy  went,  or  as  he  was 
asked  to  go,  in  giving  information.  The  effect  of  that  information, 
as  sufficing  to  exonerate  the  defendant  from  liability  for  a  wrong 
delivery,  was  a  matter  of  which  the  defendant  through  its  agent 
took  the  entire  risk.  In  this  at  least  the  plaintiffs  were  in  no  fault. 
Their  agent,  if  Murphy  was  their  agent,  simply  told  the  defendant's 
agent  that  he  had  sold  goods  to  L.  Behrend  and  described  them,  and 
thereupon  the  defendant's  agent  delivered  these  particular  goods  to 
L.  Behrend.  By  what  authority  did  he  do  this?  The  goods  were 
consigned  to  another  person,  and  the  defendant's  duty  was  to  deliver 
to  that  person.  Surely  that  duty  was  not  discharged  by  a  delivery 
to  one  who  was  not  the  consignee,  merely  because  the  plaintiffs' 
agent  had  sold  similar  goods  to  such  a  person.  The  fact  still  re- 
mained that  the  goods  were  not  delivered  to  the  one  to  whom  they 
were  consigned.  The  entire  risk  of  a  delivery  to  the  right  person 
was  assumed  by  the  defendant,  and  a  wrong  delivery  was  made  by 


DELIVERY    BY    CARRIER.  715 

the  mistake  of  the  defendant's  agent,  which,  of  course,  is  their  mis- 
fortune. We  are  clearly  of  opinion  that  the  plaintiffs  were  entitled 
to  judgment  on  the  case  stated. 


SINGER   v.    MERCHANTS   DESPATCH   TRANSP.    CO. 
191  Mass.  449 ;  77  N.  E.  R.  882  ;  114  Am.  St.  R.  635.     1906. 

Contract  or  tort  for  the  value  of  three  cases  of  boots  and  shoes  en- 
trusted to  the  defendant  for  transportation  to  Springfield,  Illinois. 
Writ  in  the  Municipal  Court  of  the  City  of  P>oston  dated  December  2, 
1901. 

On  appeal  to  the  Superior  Court  the  case  was  tried  before  Wait,  J., 
without  a  jury.  The  following  facts  were  agreed  for  presentation  to 
this  court. 

[Plaintiff,  Louis  Singer,  a  wholesale  shoe  dealer  in  Boston,  on 
November  21,  1900,  delivered  to  the  defendant  for  transportation  to 
Springfield,  Illinois,  three  cases  of  boots  and  shoes  directed  to  him- 
self and  marked  "  L.  Singer,  Springfield,  Illinois,"  accepting  a  bill  of 
lading  therefor  containing  the  condition  that  the  carrier  might,  at  its 
option,  deliver  the  goods  to  the  person  named  as  consignee  without 
requiring  the  production  or  surrender  of  the  bill  of  lading.  This 
bill  of  lading,  or  receipt  as  it  was  designated  by  its  terms,  was  in- 
dorsed by  plaintiff  in  blank  and  attached  to  a  draft  on  the  State  P>ank 
of  Chicago,  and  sent  with  the  draft  to  Springfield,  Illinois,  through 
the  Shoe  and  Leather  National  Bank  of  Boston,  with  directions  on 
the  draft  to  notify  one  Guralnik,  a  customer  of  plaintiff's  in  Spring- 
field, who  had  sent  to  plaintiff  an  order  for  the  boots  and  shoes 
accompanied  with  a  deposit  of  $10  on  the  purchase  price.  It  ap- 
peared that  about  six  or  seven  times  a  year  for  five  years  said 
Guralnik  had  ordered  goods  from  the  plaintiff  in  the  same  manner 
and  received  them  without  difficulty,  although  his  name  never  ap- 
peared as  consignee  on  the  direction  or  shipping  papers.  When  the 
goods  reached  Springfield,  Illinois,  and  before  any  request  for  them 
had  been  made  by  Guralnik,  they  had  been  delivered  by  the  de- 
fendant to  the  Samuel  Transfer  Company  in  the  ordinary  course  of 
business,  being  taken  by  that  company  under  a  general  authority 
from  Lena  Singer,  who  was  doing  business  in  Springfield,  Illinois, 
under  the  name  of  L.  Singer  and  for  whom  the  Transfer  Company 
had  frequently  received  goods  bearing  that  address  from  the  de- 
fendant. Plaintiff  had  no  knowledge  that  there  was  any  person  of 
the  name  of  Lena  Singer  or  any  person  doing  business  under  the 
name  of  L.  Singer  in  Springfield,  Illinois.  On  being  advised  by 
Guralnik  that  the  goods  had  been  delivered  to  some  one  else,  plaintiff 
gave  Guralnik  a  power  of  attorney  to  demand  and  receive  the  goods. 
.  On  demand  being  made  for  the  goods  under  this  power  of  attorney, 


716  CARRIERS   OF    GOODS. 

defendant  was  unable  to  deliver  them  and  this  action  for  their  value 
was  instituted.  There  was  a  finding  and  judgment  for  plaintiff  and 
defendant  alleged  exceptions.] 

Loring,  J.  The  contract  of  the  defendant  in  the  case  at  bar  was 
to  deliver  the  cases  in  question  to  L.  Singer,  Springfield,  Illinois,  with- 
out requiring  the  production  of  a  receipt  or  bill  of  lading. 

By  accepting  the  receipt,  which  states  the  conditions  upon  which 
the  property  is  received,  the  plaintiff  accepted  those  terms  as  part  of 
the  contract.  Grace  v.  Adams,  100  Mass.  505  [548].  Hoadley  v. 
Northern  Transportation  Co.,  115  Mass.  304.  Fonseca  v.  Cunard 
Steamship  Co.,  153  Mass.  553.  The  receipt  in  question  states  on  its 
face  that  these  conditions  are  to  be  found  on  the  back.  Such  a 
receipt  comes  within  that  rule.  See  in  this  connection  Pemberton 
Co.  v.  New  York  Central  Railroad,  104  Mass.  144 ;  Doyle  v.  Fitch- 
burgh  Railroad,  166  Mass.  492.  By  force  of  this  contract  between 
the  parties  the  case  at  bar  is  brought  within  the  rule  applied  on  proof 
of  custom  in  Forbes  v.  Boston  &  Lowell  Railroad,  133  Mass.  154. 

The  defendant  performed  this  contract  by  delivering  the  goods  to 
L.  Singer,  Springfield,  Illinois. 

Whether  the  consignor  in  the  case  at  bar  meant  L.  Singer  of  Boston, 
Massachusetts,  or  L.  Singer  of  Springfield,  Illinois,  is  not  material. 
What  a  consignor  in  fact  means  if  not  communicated  to  the  carrier  is 
not  material.  The  rights  of  the  parties  depend  upon  what  is  com- 
municated to  the  carrier.  Samuel  v.  Cheney,  135  Mass.  278  [706]. 
The  carrier  in  making  delivery  is  bound  to  follow  that  direction 
whatever  it  may  mean  under  all  the  circumstances  of  the  case. 

It  is  agreed  that  the  Lena  Singer  to  whom  the  goods  were  de- 
livered was  before  and  at  the  time  in  question  doing  business  in 
Springfield,  Illinois,  under  the  name  of  L.  Singer,  and  was  so  known 
to  the  defendant's  representatives  in  Springfield ;  also  that  she  had 
been  receiving  goods  over  the  defendant's  line  "  nearly  every  week, 
addressed  to  L.  Singer,"  and  that  "these  cases  were  marked  and 
billed  in  the  same  manner  as  other  goods  received  at  Springfield 
for  said  Lena  Singer."  It  does  not  appear  that  there  was  any  other 
L.  Singer  in  Springfield. 

Under  these  circumstances  we  see  no  ground  for  saying  that  the 
defendant  did  not  follow  the  instructions  given  to  him  in  delivering 
the  goods  to  Lena  Singer. 

We  cannot  accede  to  the  plaintiff's  argument  that  because  the  de- 
fendant's agent  in  Boston  had  notice  of  the  name  of  the  consignor 
and  consignee  being  the  same  he  had  notice  that  the  goods  were  to 
be  delivered  to  the  consignor  and  therefore  that  L.  Singer,  Spring- 
field, Illinois,  meant  L.  Singer  of  Boston.  If  any  inference  ought  to 
have  been  drawn  from  this  fact  we  think  it  was  that  L.  Singer  of 
Springfield  was  the  consignor  acting  through  an  agent  in  making  the 
consignment. 

Neither  is  it  material  that  "the  plaintiff  had  been  doing  business 


DELIVERY    BY    CARRIER.  7]  7 


in  Boston  for  eleven  years,  and  had  been  sending  goods  to  Springfield 
Illinois,  for  about  five  years  previous  to  November  21,  1900  about 
six  or  seven  times  a  year  to  the  same  Guralnik,  and  had  always  sent 
his  goods  addressed  in  the  same  way,  namely,  :  .  Singer,  Springfield, 
111.,  and  through  the  defendant  company,  and  he  never  had  any 
trouble  before  this  time."  The  defendant's  agent  in  Springfield 
was  not  bound  to  remember  and  was  not  chargeable  with  knowledge 
of  these  facts.  See  in  this  connection  Raphael  v.  Bank  of  Eng- 
land, 17  C.  B.  161;  Vermilye  v.  Adams  Express  Co.  21  Wall. 
138;  Seybel  v.  National  Currency  Bank,  54  N.  Y.  288,  where  it 
is  held  that  previous  notice  of  loss  to  a  subsequent  purchaser  of 
a  negotiable  security  does  not  charge  him  with  knowledge  of  the 
facts  stated  in  the  notice.  Whether  this  is  the  law  in  Massachusetts 
was  left  open  in  Hinckley  v.  Union  Pacific  Railroad,  129  Mass. 
52,  59. 

The-  issues  of  negligence  on  the  part  of  the  plaintiff  and  on  the 
part  of  the  defendant,  on  which  the  judge  below  tried  the  case,  were 
not  the  issues  on  which  the  rights  of  the  parties  in  the  case  at  bar 
depend.  Where  the  instructions  as  to  delivery  are  doubtful  under 
the  circumstances  known  to  the  carrier,  he  is  put  on  his  inquiry,  and 
the  question  of  negligence  arises.  But  the  instructions  here  were  not 
doubtful  under  the  circumstances  known  to  the  defendant.  The 
judge  in  the  court  below  apparently  acted  on  Samuel  v.  Cheney,  135 
Mass.  278  [706].  There  was  ground  for  arguing  that  the  instruc- 
tions there  were  doubtful  under  the  circumstances  known  to  the 
carrier.  It  is  to  be  observed  that  the  charge  to  the  jury  in  that  case 
was  held  to  have  been  "  sufficiently  favorable  to  the  plaintiff " ;  it 
was  not  held  to  have  been  correct. 

The  conclusion  to  which  we  have  come  is  supported  by  Dunbar  v. 
Boston  &  Providence  Railroad,  110  Mass.  26 ;  Samuel  v.  Cheney, 
135  Mass.  278  [706]  ;  M'Kean  v.  M'lvor,  L.  R.  6  Ex.  36;  Stimson  v. 
Jackson,  58  N.  H.  138 ;  Conley  v.  Canadian  Pacific  Railway,  32  Out. 
258 ;  The  Drew,  15  Fed.  Rep.  826 ;  Nebraska  Meal  Mills  v.  St.  Louis 
Southwestern  Railway,  64  Ark.  169. 

The  plaintiff  evidently  intended  to  make  the  goods  shipped  se- 
curity for  his  draft  for  the  unpaid  balance  of  the  purchase  money 
due  him.  To  do  that  he  should  have  had  the  goods  billed  to  his 
own  order  and  then  indorsed  the  bill  of  lading  to  the  bank  discount- 
ing his  draft.  By  mistake  he  billed  the  goods  "  straight  "  and  is  now 
seeking  to  make  the  defendant  liable  for  his  own  blunder. 

In  the  opinion  of  a  majority  of  the  court  the  entry  must  be 

Exceptions  sustained. 


718  CARRIERS    OF    GOODS. 

f .    Stopjmge  in  Transitu. 

NEWHALL   v.   CENTRAL   PACIFIC   RAILROAD   CO. 

51  Cal.  345  ;  21  Am.  R.  713.     1876. 

Crockett,  J.  This  case  comes  up  on  the  findings,  and  there  is, 
therefore,  no  controversy  as  to  the  facts;  the  only  question  being, 
whether  the  plaintiffs  are  entitled  to  judgment  on  the  facts  found. 
The  facts  necessary  to  a  correct  understanding  of  the  only  question 
of  law  in  the  case  are,  that  a  mercantile  firm  in  New  York  sold  certain 
merchandise  on  credit  to  a  similar  firm  in  San  Francisco,  and  shipped 
the  same  in  the  usual  course  of  business,  by  railway,  to  the  vendees 
as  consignees,  under  bills  of  lading  in  the  usual  form.  The  bills  of 
lading  were  received  at  San  Francisco  by  the  consignees  before  the 
goods  arrived ;  and  while  the  merchandise  was  in  transit,  in  the  cus- 
tody of  the  defendant  as  a  common  carrier,  the  consignees  failed,  and 
became  insolvent,  and  thereupon  the  vendors  notified  the  defendant 
in  writing  that  they  stopped  the  goods  in  transitu;  that  the  vendees 
had  become  insolvent,  and  the  goods  were  not  paid  for,  and  that  they 
must  not  be  delivered  to  the  consignees,  but  to  the  vendors.  The 
plaintiffs  then  were,  and  for  many  years  had  been,  auctioneers  and 
commission  merchants,  doing  business  in  San  Francisco,  and  had  been 
in  the  habit  of  receiving  from  the  consignees  bills  of  lading,  and  goods 
under  them,  for  sale  on  commission.  About  two  hours  after  the 
notice  of  stoppage  in  transitu  was  served  upon  the  defendant,  the  con- 
signees indorsed  and  delivered  the  bills  of  lading  to  the  plaintiffs, 
who,  on  the  faith  thereof  and  of  the  goods  named  therein,  "  advanced 
a  sum  of  money  to  the  consignees  in  the  usual  course  of  business ; " 
and  the  sum  so  advanced  was  to  be  reimbursed  out  of  the  proceeds  of 
the  goods,  which  were  to  be  sold  at  auction  by  the  plaintiffs.  At  the 
time  of  the  indorsement  and  transfer  of  the  bills  of  lading  to  the 
plaintiffs,  they  had  no  notice  that  the  consignees  were  in  failing  cir- 
cumstances, or  had  failed,  or  that  any  notice  of  stoppage  in  transitu 
had  been  served  upon  the  defendant.  While  the  goods  were  still  iu 
the  possession  of  the  defendant  as  a  common  carrier,  the  plaintiffs,  as 
holders,  exhibited  to  the  defendant  the  bills  of  lading,  tendered  the 
charges,  and  demanded  a  delivery  of  the  goods,  which  was  refused, 
and  the  action  is  to  recover  their  value. 

The  question  involved  being  one  of  great  practical  importance,  it 
has  been  discussed  by  counsel,  both  orally  and  in  printed  arguments, 
with  learning  and  ability.  But  after  the  most  careful  research,  they 
have  failed  to  call  to  our  attention  a  single  adjudicated  case  in  which 
the  precise  question  under  review  has  been  decided  or  discussed. 
There  are  numerous  decisions,  both  in  England  and  America,  to  the 


DELIVERY    BY    CARRIER. 

effect  that  where  goods  are  consigned  by  the  vendor  to  the  ven 
under  bills  of  lading  in  the  usual  form,  as  in  this  case,  an  attempt  by 
the  vendor  to  stop  the  goods  in  transitu  will  be  unavailing  as  against 
an  assignee  of  the  bill  of  lading,  who  took  it  in  good  faith,  for  a  valu- 
able consideration,  in  the  usual  course  of  business,  before  the 
attempted  stoppage.  The  leading  case  on  this  point  is  Lickbarrow  v. 
Mason  (2  Term  R.  63),  the  authority  of  which  has  been  almost  uni- 
versally acquiesced  in  by  the  courts  and  text-writers,  in  this  country 
and  in  England.  There  being  little  or  no  conflict  in  the  authorities 
on  the  point  adjudicated  in  that  case,  it  would  be  useless  to  recapitu- 
late them  here.  But  it  is  important  to  ascertain  the  principles  which 
underlie  these  decisions,  that  we  may  determine  to  what  extent,  if  at 
all,  they  are  applicable  to  the  case  at  bar.  The  first,  and,  as  I  think, 
the  controlling  point  determined  in  these  cases,  is,  that  by  the  bill  of 
lading  the  legal  title  to  the  goods  passes  to  the  vendee,  subject  only 
to  the  lien  of  the  vendor  for  the  unpaid  price ;  which  lien  continues 
only  so  long  as  the  goods  are  in  transit,  and  can  be  enforced  only  on 
condition  that  the  vendee  is  or  becomes  insolvent  while  the  goods  are 
in  transit. 

On  the  failure  of  each  of  these  conditions,  the  right  of  stoppage  is 
gone,  and  the  lien  ceases,  even  as  against  the  vendee.  But  it  is  fur- 
ther settled  by  these  adjudications,  that  if  the  bill  of  lading  is  assigned, 
and  the  legal  title  passes  to  a  bona  fide  purchaser  for  a  valuable  con- 
sideration before  the  right  of  stoppage  is  exercised,  the  lien  of  the 
vendor  ceases  as  against  the  assignee,  on  the  well-known  principle 
that  a  secret  trust  will  not  be  enforced  as  against  a  bona  fide  holder 
for  value  of  the  legal  title.  In  such  a  case,  if  the  equities  of  the 
vendor  and  assignee  be  considered  equal  (and  this  is  certainly  the 
light  most  favorable  to  the  vendor  in  which  the  transaction  can  be 
regarded),  the  rule  applies  that  where  the  equities  are  equal  the  legal 
title  will  prevail.  But  in  such  a  case  it  would  be  difficult  to  main- 
tain that  the  equities  are  equal.  The  vendor  has  voluntarily  placed 
in  the  hands  of  the  vendee  a  muniment  of  title,  clothing  him  with  the 
apparent  ownership  of  the  goods;  and  a  person  dealing  with  him  in 
the  usual  course  of  business,  who  takes  an  assignment  for  a  valuable 
consideration,  "without  notice  of  such  circumstances  as  render  tin- 
bill  of  lading  not  fairly  and  honestly  assignable,"  has  a  superior  equity 
to  that  of  the  vendor  asserting  a  recent  lien,  known,  perhaps,  onh 
himself  and  the  vendee.     (Brewster  v.  Sime,  42.Cal.  loO.) 

These  being  the  conditions  which  determine  and  control  the  rela- 
tive rights  of  the  vendor  and  assignee,  where  the  assignment  is  ma 
before  the  notice  of  stoppage  is  given,  precisely  the  same  principles,  in 
my  opinion,  are  applicable  when  the  assignment  is  made  after  the 
carrier  is  notified  by  the  vendor.     Notwithstanding  the  notice  to  I 
carrier,  the  vendor's  lien  continues  to  be  only  a  secret  trust  as  to  a 
person,  who,  in  the  language  of  Mr.  Benjamin,  in  his  work  on  Sali 
section  eight  hundred  and  sixty-six,  takes  an  assignment  of  a  bill  of 


720  CARRIERS    OF    GOODS. 

lading  "without  notice  of  such  circumstance  as  renders  the  bill  of 
lading  not  fairly  and  honestly  assignable."  The  law  provides  ho 
method  by  which  third  persons  are  to  be  affected  with  constructive 
notice  of  acts  transpiring  between  the  vendor  and  the  carrier ;  and  in 
dealing  with  the  vendee,  whom  the  vendor  has  invested  with  the  legal 
title  and  apparent  ownership  of  the  goods,  a  stranger,  advancing  his 
money  on  the  faith  of  this  apparently  good  title,  is  not  bound,  at  his 
peril,  to  ascertain  whether,  possibly,  the  vendor  may  not  have  notified 
a  carrier  —  it  may  be  on  some  remote  portion  of  the  route  —  that  the 
goods  are  stopped  in  transitu.  If  a  person,  taking  an  assignment  of  a 
bill  of  lading,  is  to  encounter  these  risks,  and  can  take  the  assignment 
with  safety  only  after  he  has  inquired  of  the  vendor,  and  of  every 
carrier  through  whose  hands  the  goods  are  to  come,  whether  a  notice 
of  stoppage  in  transition  has  been  given,  it  is  quite  certain  that  prudent 
persons  will  cease  to  advance  money  on  such  securities,  and  a  very  im- 
portant class  of  commercial  transactions  will  be  practically  abrogated. 
In  my  opinion  the  judgment  should  be  affirmed,  and  it  is  so  ordered. 
Mr.  Chief  Justice  Wallace  did  not  express  an  opinion. 


ALLEN   v.   MAINE   CENTRAL   RAILROAD   CO. 

79  Maine,  327 ;  1  Am.  St.  R.  310.     1887. 

[Action  on  the  case  for  the  value  of  four  bales  of  woolen  rags  shipped 
by  plaintiffs  from  Philadelphia  to  William  Beatty  at  Gray,  Maine. 
Soon  after  plaintiffs  parted  with  the  goods  they  learned  that  Beatty 
was  insolvent  and  notified  the  station  agent  of  the  defendant  company 
who  had  charge  of  receipts  and  delivery  of  freight  at  point  of  destina- 
tion, to  stop  the  transit.  Plaintiffs'  request  that  the  goods  be  stopped 
before  delivery  and  returned  to  them,  though  made  in  different  forms, 
did  not  state  any  ground  for  such  request.  The  defendant  delivered 
the  goods  to  Beatty  and  plaintiffs  institute  this  action  for  their  value.] 

Emery,  J.  The  only  mooted  question  in  this  case  is,  whether  the 
plaintiffs  effectually  exercised  against  the  carrier  their  clear  right  of 
stopping  the  goods  in  transitu. 

The  plaintiffs  seasonably  telegraphed  and  wrote  the  proper  officer 
of  the  defendant  company  (the  carrier)  to  stop,  and  return  the  goods. 
The  defendant  company  contend  the  notice  was  insufficient,  because 
there  was  no  statement  of  the  nature  or  basis  of  the  claim,  to  have  the 
goods  stopped.  While  such  a  statement  is  probably  usual,  it  does  net 
seem  necessary  in  this  case.  The  carrier  is  presumed  to  know  the  law, 
and  by  such  a  notice  as  was  given  here,  is  effectually  apprised  of  a 
claim  adverse  to  the  consignee,  as  well  as  of  a  claim  upon  himself.  In 
Benj.  on  Sales,  1276,  while  it  is  said  that  the  usual  mode  is  a  simple 
notice  to  the  carrier,  stating  the  vendor's  claim,  &c,  it  is  also  stated, 


DELIVERY    BY    CARRIER.  721 

that,  "  all  that  is  required  is  some  act,  or  declaration  of  the  vendor 
countermanding  the  delivery."  Brewer,  J.,  in  Rucker  v.  Donava 
Kan.  251  (19  Am.  R.  84),  said,  "a  notice  to  the  carrier  to  stop  the 
goods  is  sufficient.  No  particular  form  of  notice  is  required."  In 
Cleminston  v.  G.  T.  Ry.  Co.,  42  U.  C.  Q.  B.  42,  while  it  was  held  that 
the  notice  was  faulty  in  not  identifying  the  goods,  it  was  said  that  a 
specification  of  the  basis  of  the  claim  was  not  necessary. 

The  defendant  further  contends,  that  the  plaintiffs'  omission  to 
afterward  prove  to  the  carrier  their  right  to  stop  the  goods,  when  re- 
quested by  the  carrier  to  do  so,  has  vacated  their  claim,  and  released 
the  carrier  from  liability.  But  the  carrier  is  not  the  tribunal,  to  de- 
termine the  rights  of  the  consignor  and  consignee.  Neither  of  these 
parties  can  be  required  to  plead  or  make  proof  before  the  carrier.  No 
man  need  prove  his  case  to  his  adversary.  It  is  sufficient  if  he  prove 
it  to  the  court.  The  carrier  cannot  conclusively  adjudicate  upon  his 
own  obligations  to  either  party.  He  is  in  the  same  position  as  is  any 
man,  against  whom  conflicting  claims  are  made.  If,  as  is  alleged  here, 
the  circumstances  are  such,  that  he  cannot  compel  them  to  interplead, 
he  must  inquire  for  himself,  and  resist,  or  yield  at  his  peril. 

It  is  reasonable,  however,  that  the  person  assuming  the  right  to  stop 
goods  in  transit,  should  act  in  good  faith  toward  the  carrier.  He 
should,  if  requested,  furnish  him  in  due  time,  with  reasonable  evidence 
of  the  validity  of  his  claim,  though  it  may  not  amount  to  proof. 
Should 'the  consignor  refuse  such  reasonable  information  as  he  may 
possess,  such  refusal  might  be  construed  as  a  waiver  of  his  peculiar 
right,  and  might  justify  the  carrier  after  a  reasonable  time,  in  no  longer 
detaining  the  goods  from  the  consignee.  But  there  was  no  such  refusal 
here.  The  plaintiffs  sent  forward  the  invoice  and  their  affidavit  within 
a  reasonable  time. 

The  plaintiffs  have  now  proved  their  right  to  stop  the  goods,  and 
the  defendant  company  having  denied  that  right  without  good  reason, 
must  respond  in  damages. 

Judgment  for  plaintiffs  for  $176.41,  foith  interest  from  the  date  of  the 
writ. 


PENNSYLVANIA   R.   CO.   v.   AMERICAN   OIL   WORKS. 
126  Pa.  St.  485;  17  Atl.  R.  671 ;  12  Am.  St.  R.  885.     1889. 

[On  a  case  stated  for  judgment  of  the  lower  court  it  appeared  that 
the  American  Oil  Works,  prior  to  January  1, 1888,  had  shipped  Beveral 
consignments  of  oil  to  the  Philadelphia  Lubric  Company  under  bills 
of  lading  in  which  it  was  stipulated  that  the  owner  or  consignee  should 
pay  freight  at  time  of  delivery  and  that  the  carrier  might  retain  the 
goods  covered  by  such  bill  "for  all  arrearages  of  freight  and  charges 
due  thereon  and  also  on  any  other  goods  by  the  same  consignee  or 


722  CARRIERS   OF   GOODS. 

owner  ;  and  such  arrearages  and  the  freight  and  charges  on  said  goods 
and  merchandise  shall  be  a  lien  thereon  until  the  same  shall  have 
been  paid."  On  a  shipment  of  oil  made  on  January  4,  1888,  the 
plaintiff  exercised  his  right  of  stoppage  in  transitu  on  account  of  the 
insolvency  of  the  consignee,  offering  to  pay  the  freight  charges  on 
such  shipment ;  but  the  defendant  claimed  a  right  to  hold  the  consign- 
ment not  only  for  freight  due  thereon  but  also  for  unpaid  freight 
charges  on  prior  consignments  which  had  been  delivered  without  the 
freight  having  been  paid.  The  trial  judge  held  that  the  stipulation 
in  the  bill  of  lading  was  ineffectual  as  against  plaintiff  and  rendered 
judgment  in  its  favor  from  which  the  defendant  appeals.] 

Mr.  Justice  Williams  :  A  vendor  of  goods  has  a  right  to  retain 
them  in  his  own  possession  until  the  price  has  been  paid.  If  he  waives 
this  right,  and  sells  upon  credit,  it  is  an  implied  condition  of  such 
sale  that  the  buyer  shall  continue,  in  good  credit  until  the  goods  come 
into  his  actual  possession.  When  that  happens  the  lien  of  the  vendor 
is  gone,  and  he  must  depend  upon  the  ultimate  solvency  of  his  customer 
at  the  expiration  of  the  term  of  credit.  If,  while  the  goods  are  in  the 
hands  of  the  carrier,  in  transit,  or  in  store  at  the  end  of  the  journey, 
with  no  intervening  right  in  the  way,  the  buyer  becomes  insolvent,  the 
implied  condition  on  which  credit  was  given  is  broken,  and  the  vendor 
may  resume  the  possession  of  the  goods.  The  exercise  of  this  right 
of  stoppage  is  not  a  rescission  of  the  contract  of  sale,  as  the  court 
below  seemed  to  think,  but  a  resumption  of  possession  which  enables 
the  seller  to  insist  on  his  lien  as  a  vendor  which  he  had  waived  by 
the  delivery  to  the  carrier:  Patten's  Appeal,  45  Pa.  151;  2  Benj.  on 
Sales,  §  1295.  The  parties  are  then  in  the  same  position  as  before  the 
seller  parted  with  the  possession  by  delivery  to  the  carrier. 

So  far  the  law  is  well  settled.  The  seller  having  exercised  his 
right  of  stoppage  as  against  the  buyer,  has  then  to  consider  his  relation 
to  the  carrier.  The  goods  having  been  delivered  into  the  possession 
of  the  carrier,  he  may  retain  them  by  virtue  of  his  lien  for  carriage, 
until  his  charges  and  expenses  are  paid.  As  between  the  carrier  and 
the  consignee  who  is  owner,  we  see  no  reason  why  this  lien  may  not 
be  extended  by  a  contract  to  cover  a  general  balance  due  by  the  con- 
signee for  the  carriage  of  other  goods.  There  would  be  no  injustice  or 
oppression  in  asking  the  consignee  to  pay  what  he  honestly  owed, 
before  allowing  him  to  remove  the  goods  from  the  possession  of  his 
creditor,  whether  that  creditor  was  a  natural  or  an  artificial  person. 

But  that  question  is  not  raised  in  this  case,  for  the  goods  never 
came  to  the  end  of  the  journey  where  the  rights  of  the  consignee  and 
the  carrier  could  be  adjusted.  The  seller  intervened  and  exercised 
his  right  of  stoppage.  This  restored  the  possession  to  him,  subject 
to  the  charges  of  the  carrier  for  his  services  and  expenses  between 
the  consignment  and  the  stoppage.  For  these  charges,  the  carrier 
had  a  lien  which  was  not  divested  by  the  stoppage,  and  which  could 
be  asserted  against   the  seller  notwithstanding  his   exercise  of  that 


DELIVERY    BY    CARRIER. 

right:  Hays  v.  Monille,  14  Pa.  48.     But  as  between  the  can 
the  seller,  there  was  no  balance  of  accounts  for   carriage  oi  I 
consignments,  for  the  delivery  of  the  goods  to  the  consignee  withoul 
payment  of  the  freight  was  a  voluntary  surrender  of  the  lien  upon 
them,  and  the  security  which  the  lien  afforded.     The  carrier  by 
delivery  gave  credit  to  the  consignee,  and  undertook  to  Look  to  his 
solvency  and  integrity.     The  former  bills  were  therefore  paid  so  Ear 
as  the  consignor  was  concerned,  and  the  carrier  had  no  1  * -_r : l  1  or  m 
ground  for  calling  upon  him  to  pay  any  balances  due  upon  them. 
The   clause  in   the  bill  of  lading  which  has  been  brought   to 
attention,  and  on  which  the  plaintiff  in  error  relies,  is  not  according 
to  its  own  terms  applicable  to  a  case  like  the  present  one.     That  cl 
provides  that  the  consignee  or  owner  shall  pay  the  freight  on  the  goods 
consigned  to  him  at  the  time  of  their  delivery,  and  that  the  goods 
may  be  retained  by  the  carrier  for  the  charges  due  thereon,  and  also 
for   any  charges  due  from  him  for  other   goods.     As  there    was  no 
carriage  of  these  goods  to  the  consignee,  the  special  lien  provided  fin- 
could  not  attach  to  them.     When  the  consignor  exercised  his  right  of 
stoppage,  the  goods  were  deliverable  to  him,  and  the  carrier's  right  of 
detention  depended  on  the  relations  thus  created.     If  the  consignor 
was  not  debtor  for  previous  carriage,  and  had  not  contracted  that  these 
goods  might  be  retained  from  him  for  such  debt,  then  the  carrier's 
lien  did  not  extend  beyond  the  charges  applicable  to  the  goods  stopped, 
and  on  payment  or  tender  of  these  he  was  entitled  to  a  delivery  of 
the  goods.     If  the  right  of  the  carrier  to  extend  its  lien  by  contract 
with  the  owner  to  the  general  balance  due  from  such  owner  be  con- 
ceded, as  it  may  be,  still  the  lien  is  confined  to  the  goods  of  such 
owner.     The  goods  which  by  the  exercise  of  the  right  of  stoppage 
become  those  of  the  consignor,  cannot  be  made  subject  to  a  lien  for 
the  debt  of  the  consignee.     We  concur  in  the  conclusion  reached  by 
the  court  below,  although  we  reach  it  by  a  somewhat  different  route. 

The  judgment  is  affirmed. 


BRAN  AN   v.    ATLANTA   &    WEST   POINT   RAILROAD   CO. 
108  Ga.  70;  33  S.  E.  R.  836  :  75  Am.  St.  R.  20.     1899. 

Little,  J.  Branan  Brothers  instituted  an  action  in  trover  against 
the  Atlanta  and  West  Point  Railroad  Company  and  ('.  V.  Truitt.  to 
recover  ten  boxes  of  tobacco.  The  evidence  made  substantially  the 
following  case:  Spencer,  Traylor  &  Co.  sold  to  Cunningham,  a  mer- 
chant in  La  Grange,  ten  boxes  of  manufactured  tobacco  on  a  credit. 
and  delivered  the  same  to  the  Richmond  &  Danville  Railroad  Com- 
pany at  Danville,  Virginia,  to  be  forwarded  to  Cunningham,  taki 
from  the  railroad  company  an  ordinary  bill  of  lading,  which  the 
siguors  transmitted   to   the  consignee.     The  tobacco   arrived   in    I.. 


724  CARRIERS   OF    GOODS. 

Grange  over  the  Atlanta  &  West  Point  Railroad,  and  was  placed  in 
the  warehouse  of  the  company  for  delivery.  Cunningham  became 
insolvent,  and  was  indebted  to  the  firm  of  Branan  Brothers  in  the 
sum  of  one  hundred  and  seventy-six  dollars.  A  member  of  that  firm 
called  on  Cunningham  for  the  payment  of  the  debt;  the  latter  pro- 
posed to  pay  the  bill  with  the  tobacco,  which  was  then  in  the  ware- 
house of  the  railroad  compaiiy  and  had  not  been  delivered.  The 
proposition  was  accepted.  Cunningham  gave  an  order  on  the  agent  of 
the  Atlanta  &  West  Point  Railroad,  to  deliver  to  C.  I.  Branan  the 
tobacco  then  in  the  carrier's  possession,  consigned  to  him,  being  the 
tobacco  which  had  been  shipped  by  Spencer,  Traylor  &  Co.  At  the 
time  of  the  delivery  of  the  order,  Cunningham  also  delivered  to 
Branan  Brothers  the  bill  of  lading  for  the  tobacco,  which  was  an 
ordinary  contract  of  affreightment,  specifying  the  name  of  the  con- 
signor and  the  goods  shipped,  and  stipulating  that  they  were  to  be 
transported  to  La  Grange  and  delivered  to  Cunningham.  There  was 
no  indorsement  or  assignment  of  the  bill  of  lading,  nor  did  Branan 
Brothers  know  that  the  tobacco  had  not  been  paid  for.  After  receipt 
of  the  order  and  bill  of  lading,  the  representative  of  the  firm  presented 
the  order  and  bill  of  lading  to  the  agent  of  the  railroad  company,  paid 
the  freight  on  the  same,  went  to  the  place  in  the  depot  where  the 
tobacco  was  deposited,  put  his  hands  upon  it  and  told  the  agent  that 
he  desired  to  mark  it  to  his  firm  at  Atlanta.  The  agent  said  that  he 
would  take  charge  of  it  for  Branan  Brothers  and  ship  it  to  Atlanta, 
consigned  to  that  firm  as  directed,  and  in  pursuance,  of  such  under- 
standing gave  to  Branan  Brothers  a  receipt  in  the  following  words : 
"  Atlanta  &  West  Point  R.  R.,  La  Grange,  4/21/92.  Received  from 
Branan  Bros,  ten  boxes  tobacco,  550.  Consignor,  Branan  Bros.  Des- 
tination, Atlanta,  Ga.  A.  R.  Ravencroft,  Agent."  The  purchase  was 
in  payment  of  an  antecedent  debt,  and  the  price  was  reasonable. 
Cunningham  did  not  go  to  the  depot  with  the  representative  of  the 
firm.  Later  on  in  the  day,  and  while  the  tobacco  was  in  the  ware- 
house awaiting  shipment  to  Atlanta,  Spencer,  Traylor  &  Co.  notified 
the  railroad  company  not  to  deliver  the  tobacco  to  Cunningham,  but 
to  deliver  the  same  to  Truitt,  one  of  the  defendants  in  error.  This 
was  done,  and  the  action  was  brought  by  Branan  Brothers  to  recover 
the  tobacco.  On  the  trial  the  jury,  under  the  charge  of  the  court, 
rendered  a  verdict  in  favor  of  the  defendants.  A  motion  for  a  new 
trial  was  made  on  several  grounds,  and  overruled.  The  plaintiffs 
excepted.  A  number  of  grounds  are  set  out  in  the  motion  for  a  new 
trial ;  but  inasmuch  as  the  case  turns  upon  the  question  of  a  proper 
construction  of  the  law  regulation  a  vendor's  right  of  stoppage  in 
transitu,  we  find  it  more  satisfactory  to  discuss  and  apply  to  the  facts 
of  the  present  case  the  rules  of  law  which  govern  such  stoppage,  than 
to  formally  pass  upon  the  several  grounds  of  the  motion. 

There  are  several  definitions  of  this  right  given  by  text-writers,  as 
well  as  made  by  adjudicated  cases,  which  we  have  examined  with 


DELIVERY    BY    CARRIER.  725 

some  interest.     Chancellor  Kent,  in  tlie  second  volume  of  his  Com- 
mentaries, page  702,  defines  the  right  of  stoppage  in  transitu  to  be 
that  which  the  vendor  has,  when  he  sells  goods  on  credit  to  another, 
of  resuming  possession  of  the  goods  while  they  are  in  the  possession 
of  the  carrier  or  middleman  in  the  transit  to  the  consignee  or  vendee 
and  before  they  arrive  into  his  actual  possession  or  the  destination  he 
has  appointed  for  them,  on  his  becoming  bankrupt  and   insolvent. 
The  supreme  judicial  court  of  Massachusetts  (Stone  v.  Simonds,  131 
Mass.  457),  declares  that  the  right  of  stoppage  in  transit,,  is  an  equi- 
table extension,  recognized  by  the  courts  of  common  law,  of  the  seller's 
lien  for  the  price  of  goods  of  which  the  buyer  has  acquired  the  prop- 
erty but  not  the  possession.     Mr.  Hutchinson  in  his  Law  of  Carriers, 
section  409,  says  that  this  right  is  based  on  the  plain  reason  of  justice 
and  equity,  that  one  man's  goods  shall  not  be  applied  to  the  payment 
of  another  man's  debts,  and  that  if  after  the  vendor  has  delivered  the 
goods  out  of  his  own  possession,  and  has  put  them  into  the  hands  of 
the  carrier  for  delivery  to  the  buyer,  he  discovers  that  the  buyer  is 
insolvent,  he  may  retake  the  goods,  if  he  can,  before  they  reach  the 
buyer's  possession,  and  thus  avoid  having  his  property  applied  to  pay- 
ing debts  due  by  the  buyer  to  other  people.     An  interesting  discussion 
of   the  seller's  right  of  stoppage  in  transitu  is  found  in  Professor 
Burdick's  Treatise  on  the  Law  of  Sales  of  Personal  Property,  page 
217.     This  author  declares  that  this  right  is  not  founded  on  any  con- 
tract between  the  parties,  nor  on  any  ethical  principle,  but  upon  the 
custom  of  merchants ;  that  while  it  is  analogous  to  the  right  of  lien, 
the  two  differ  in  some  important  respects.     That  is,  the  right  of  lien 
is  not  available  unless  the  seller  is  in  possession  of  the  goods  in  the 
character  of  an  unpaid  former  owner,  and  this  right  is  determined  as 
soon  as  the  buyer  or  his  agent  lawfully  obtains  possession.     On  the 
other  hand,  the  right  of  stoppage  in  transitu  does  not  come  into  exist- 
ence until  the  goods  have  passed  out  of  the  vendor's  possession  into 
the  hands  of  a  carrier  for  transmission.      It  is  immaterial,  however, 
for  the  purposes  of  this  discussion,  to  ascertain  whether  the  right  is 
in  the  nature  of  a  lien,  or  whether  it  arises  from  the  custom  of  mer- 
chants.     Certainly,   it   exists   under   certain   well-defined   rules    and 
regulations,  and  it  is  a  right  which  is  favored  by  the  courts.     It  is 
essential,  however,  to  the  exercise  of  the  right,  that  the  goods  should 
be  in  ti*ansit  at  the  time.     Mr.  Parsons,  in  his  Law  of  Contracts, 
volume  1,   bottom  page  624,   says  that  it   is  sometimes  difficult  to 
determine  whether  the  goods  which  it  is  sought  to  stop  are  still  in 
transitu,  and  declares  that  it  is  well  settled  that  goods  are  in  transitu, 
not  only  while  in  motion,  and  not  only  while  in  the  actual  possession 
of  the  carrier,  but  also  while  they  are  deposited  in  any  place  distinctly 
connected  with  the  transmission  or  delivery  of  them,  or,  rather,  while 
in  any  place  not  actually  or  constructively  the  place  of  the  consign''", 
or  so  in  his  possession  or  under  his  control  that  the  putting  them 
there  implies  the  intention  of  delivery.     And  again,  on  page  626  of 


726  CARRIERS   OF    GOODS. 

the  same  volume,  this  author  declares  that  they  are  in  transit  until 
they  pass  into  the  possession  of  the  vendee. 

Our  Civil  Code,  section  2285,  declares  that  the  right  continues  until 
the  vendee  obtains  the  actual  possession  of  the  goods  ;  and  it  is  also 
declared  in  section  3552  of  the  same  code  that,  if  the  goods  are  de- 
livered before  the  price  is  paid,  the  seller  cannot  retake  because  of 
failure  to  pay,  but,  until  actual  receipt  by  the  purchaser,  the  seller 
may  at  any  time  arrest  them  on  the  way  and  retain  them  until  the 
price  is  paid.  Again,  it  is  provided  by  section  3553  of  the  same  code, 
that  a  bona  fide  assignee  of  a  bill  of  lading  of  goods  for  a  valuable 
consideration,  and  without  notice  that  the  same  were  unpaid  for,  and 
the  purchaser  insolvent,  will  be  protected  in  his  title  against  the 
seller's  right  of  stoppage  in  transitu.  These  three  sections  of  the 
code,  taken  together,  seem  to  declare  the  proposition  that  until  the 
goods  actually  come  into  the  possession  of  the  consignee  the  right 
of  stoppage  in  transitu  continues,  and  the  only  exception  made  is 
that  a  bona  fide  assignee  of  the  bill  of  lading  for  a  valuable  con- 
sideration, who  has  no  knowledge  that  the  same  have  not  been  paid 
for,  and  the  purchaser  insolvent,  will  be  protected  against  this  right. 
While  the  cases  passed  on  by  this  court  which  bear  on  this  subject 
are  few,  the  principles  on  which  they  were  ruled  are  plainly  and 
explicitly  stated.  In  the  case  of  Macon  etc.  R.  R.  v.  Meador,  65  Ga. 
705,  the  plaintiffs  undertook  to  stop  in  transit  certain  boxes  of  to- 
bacco which  they  had  shipped  from  Atlanta  to  Macon,  consigned  to 
Carlos.  After  the  goods  had  arrived  in  Macon,  the  treasurer  of  the 
railroad  company,  under  an  agreement  with  the  consignee,  set  the 
tobacco  aside  to  be  sold  by  the  company  to  pay  past  due  freights,  and, 
if  any  balance  remained,  to  pay  the  same  to  the  consignee.  The 
consignee  having  been  forced  into  bankruptcy,  the  question  arose 
whether  the  tobacco  had  been  so  delivered  into  the  possession  of 
Carlos  as  to  defeat  the  right  of  stoppage  in  transitu.  In  dealing  with 
this  question,  the  court  calls  attention  to  the  fact  that  the  consignee 
did  not  go  with  Brantley,  the  treasurer,  and  have  the  boxes  of  to- 
bacco set  apart,  but  gave  orders  in  relation  to  the  same,  and  they 
were  set  apart  under  such  orders  by  being  moved  from  one  part  of 
the  carrier's  warehouse  to  another,  and  that  actual  possession  was 
never  in  Carlos  at  all,  but  that  possession  in  him  was  only  con- 
structive. It  also  calls  attention  to  the  fact  that  the  bill  of  lading 
had  not  been  delivered  nor  transferred,  nor  the  freight  paid.  Under 
these  circumstances,  it  was  ruled  that  there  never  was  any  actual 
possession  in  Carlos,  the  consignee,  nor  any  actual  delivery  to  him  or 
to  anybody  for  him.  There  are  a  number  of  decisions  of  other  courts, 
which,  had  they  been  followed,  would  have  constrained  the  ruling 
that  such  a  constructive  delivery  of  the  tobacco  as  appears  in  Macon 
etc.  R.  R.  v.  Meador,  65  Ga.  705,  would  have  defeated  the  right  of 
stoppage;  but  this  court,  in  construing  the  principles  of  law  con- 
tained in  the  three  sections  of  the  code  which  we  have  quoted  above 


DELIVERY  BY  CARRIER.  727 

in  pari  materia,  held  the  rule  to  be,  that  the  right  would  not  be  de- 
feated until  actual  possession  of  the  goods  had  been  secured  by  the 
consignee,  except  only  in  the  case  of  an  assignee  of  the  bill  of  lading, 
without  notice  that  the  goods  had  not  been  paid  for,  and  the  fact  of 
the  insolvency  of  the  consignee. 

That  such  was  the  construction  of  our  code  is  made  manifest  by 
the  ruling  in  the  case  of  Ocean  S.  S.  Co.  v.  Ehrlich,  88  Ga.  502,  30 
Am.  St.  Rep.  164.  In  that  case,  goods  were  consigned  in  New  York 
to  be  delivered  to  Epstein  &  Wannbacher  at  Savannah,  and  shipped, 
by  the  Ocean  Steamship  Company.  On  arrival  they  were  placed  on 
the  wharf  of  the  steamship  company,  the  freight  and  wharfage  had 
been  paid,  and  nothing  remained  to  be  done  to  change  the  actual 
possession  from  the  carrier  to  the  consignee  except  to  remove  the 
goods.  It  was  shown  that  it  was  the  custom  of  the  carrier  to  deliver 
goods  so  placed,  when  the  freight  and  wharfage  were  paid,  without 
requiring  the  bills  of  lading.  The  consignees  sold  the  goods  to 
Ehrlich  and  exhibited  to  the  purchaser  the  bills  of  lading,  but  exe- 
cuted no  assignment  of  such  bills.  They  delivered  to  him  the  re- 
ceipted freight  and  wharfage  bills  and  also  an  order  on  the  carrier 
for  the  goods,  and  Ehrlich  paid  the  agreed  purchase  price.  On 
exhibition  of  the  order  to  the  carrier,  a  part  of  the  goods  were  de- 
livered and  carried  away.  On  returning  for  the  remainder,  it  was 
found  that  the  consignor  in  New  York  had  notified  the  carrier  not 
to  deliver  the  goods  to  the  consignee.  The  carrier,  acting  under  the 
notice,  refused  to  make  further  delivery  of  the  goods ;  and  the  ques- 
tion was,  Were  the  consignors  in  time  ?  After  citing  the  provisions 
of  the  code  above  referred  to,  Chief  Justice  Bleckley,  delivering  the 
opinion  of  the  court,  said :  "  Under  these  provisions  nothing  defeats 
the  right  of  stoppage  but  actual  possession  in  the  vendee,  or  bona 
fide  assignment  of  the  bill  of  lading.  .  .  .  The  actual  possession 
of  the  goods  not  removed  from  the  wharf  was  certainly  never  in  [the 
consignees],  and  what  they  did  not  have  they  could  not  confer  on 
their  vendees.  ...  As  the  consignors  were  not  too  late  relatively 
to  the  consignees,  they  were  not  too  late  as  to  purchasers  from  the 
consignees  who  had  not  obtained  actual  possession.  ...  If  these 
bills  had  been  assigned,  that  would  have  been  equivalent  to  an  actual 
delivery  of  the  goods.  The  law  recognizes  no  substitute  for  such 
assignment.  .  .  .  This  right  is  regulated  by  law,  and  is  terminated 
or  defeated  only  in  the  way  which  the  law  recognizes."  It  is  nol 
necessary,  for  a  proper  decision  of  the  question  which  arises  in  tin- 
present  case,  to  add  anything  to  this  adjudication,  but  an  examina- 
tion will  show  that  the  same  principles  are  ruled  and  adhered  to  in 
very  many  adjudicated  cases  emanating  from  other  jurisdictions. 
In  the  case  of  Calahan  v.  Babcock,  21  Ohio  St.  281,  8  Am.  Rep.  63, 
the  supreme  court  of  Ohio  ruled:  "The  right  of  stoppage  in  transit" 
is  regarded  with  favor,  and  the  engrafting  of  further  restrictions 
upon  the  rule  governing  it  is  not  warranted  by  public  policy.     The 


728  CARRIERS    OF    GOODS. 

right  of  stoppage  in  transitu  is  extinguished  only  by  the  actual  and 
complete  delivery  of  the  goods  consigned,  to  the  vendee  or  to  some 
agent  of  and  for  him."  Again,  in  the  case  of  McElwee  v.  Metropoli- 
tan Lumber  Co.,  37  U.  S.  App.  268,  69  Fed.  Eep.  302,  the  circuit 
court  of  appeals  ruled  :  "  No  subsale  during  transit  will  defeat  the 
right,  unless  the  bill  of  lading  be  transferred."  In  the  case  of  Loeb  v. 
Peters,  63  Ala.  243,  35  Am.  Rep.  17,  the  supreme  court  of  Alabama 
ruled :  "  The  right  of  stoppage  by  the  seller  is  lost,  when,  before  it  is 
exercised,  the  purchaser  has  sold  the  goods,  and  indorsed  the  bill  of 
lading,  to  a  subpurchaser  for  value  in  good  faith."  To  the  same 
effect  see  Becker  v.  Hallgarten,  86  N.  Y.  167,  and  a  large  number  of 
cases  cited  in  5  Lawson's  Rights,  Remedies,  and  Practice,  section  2495, 
note  4. 

The  claim  of  the  plaintiffs  in  error  in  this  case  is,  that  the  sale  made 
to  them  by  the  consignee,  and  the  subsequent  recognition  of  such  sale 
by  the  carrier,  and  the  agreement  on  its  part  to  reship  the  goods,  was 
such  a  delivery  as  vested  in  them  title  to  the  goods  free  from  the  right 
of  stoppage  in  transitu.  It  must  be  remembered,  however,  that  noth- 
ing will  defeat  this  right,  except  actual  possession  of  the  goods  by  the 
consignee,  or  an  assignment  of  the  bill  of  lading,  which  is  a  sym- 
bolic delivery  of  the  property.  Neither  of  these  things  was  done. 
Cunningham  never  did  have  possession  of  the  goods.  The  bill  of 
lading  was  never  assigned  by  him  to  plaintiffs  in  error.  It  cannot  be 
doubted,  under  the  facts  which  appear  in  the  record,  that  Bran  an 
Brothers  purchased  the  goods  in  good  faith  from  Cunningham,  the 
consignee,  but  it  cannot  be  insisted  that  by  such  purchase  they  ob- 
tained any  better  title  than  Cunningham,  the  consignee,  had  when  the 
goods  were  delivered  to  the  carrier  in  Danville,  Virginia.  The  legal 
effect  of  such  delivery  was  to  vest  the  title  in  Cunningham,  and  it  so 
remained,  but  the  title  which  he  held  was  subject  to  the  right  of  the 
vendor  to  stop  the  goods  before  actual  delivery.  He  could  convey  to 
the  purchaser  from  him  no  more  than  he  had ;  and  therefore  Branan 
Brothers,  taking  Cunningham's  title,  took  the  tobacco  subject  to  the 
right  of  the  vendor  to  stop  it  so  long  as  it  remained  in  the  hands  of 
the  carrier :  Holbrook  v.  Vose,  6  Bosw.  76.  If  it  be  said  that  the 
goods  were  not  in  the  hands  of  the  carrier  for  delivery  to  the  consignee, 
the  reply  is,  that  as  long  as  the  company,  in  any  capacity,  except  as 
agent  of  the  consignee,  has  control  of  the  goods,  whether  carrier  or 
warehouseman,  the  vendor's  right  is  not  terminated ;  for  as  long  as 
anything  remains  to  be  done  in  order  to  complete  a  delivery  to  the  con- 
signee, that  long  the  right  of  stoppage  in  transitu  endures :  4  Elliott, 
R.  2395,  and  note  3,  making  reference  to  a  large  number  of  adjudi- 
cated cases.  There  had  been  no  actual  delivery  of  the  goods  either  to 
the  consignee  or  Branan  Brothers.  Under  the  authority  of  Macon  etc. 
R.  R.  v.  Meador,  65  Ga.  705,  the  delivery  to  the  latter  was  construc- 
tive, not  actual.  Without  actual  delivery  or  the  legal  symbol  of  it,  the 
purchaser  could  not  defeat  the  right.     Subject  to  this  right,  the  pur- 


DELIVERY    BY    CARRIER.  729 

chaser  changed  the  destination,  to  which  change  the  carrier  assented, 
but  while  in  its  hands  as  carrier,  before  the  goods  had  been  started  to 
their  new  destination,  the  right  to  stop  was  exercised ;  and  so  long  as 
they  remained  in  the  possession  of  the  carrier  and  it  had  control  over 
them,' the  right  existed  in  the  original  vendor  as  against  the  consignee 
who  had  never  had  them,  and  a  purchaser  from  them  who  bought  sub- 
ject to  the  right.  In  our  judgment,  the  court  committed  no  error  in 
the  charge  of  which  complaint  was  made.  The  verdict  is  in  accord- 
ance with  the  law  and  evidence,  and  the  court  committed  no  error  in 
overruling  the  motion  for  a  new  trial. 

Judgment  affirmed. 


BBEWEB   LUMBEE   CO.   v.    BOSTON   &  ALBANY  E.    CO. 
179  Mass.  228 ;  60  N.  E.  R.  548 ;  54  L.  R.  A.  435.     1901. 

Eeplevin  for  a  car  load  of  lumber  sold  by  the  plaintiff  to  one  George 
A.  Paul  and  claimed  by  right  of  stoppage  in  transitu,  the  action  being 
defended  by  the  trustee  in  bankruptcy  of  Paul.  Writ  dated  August 
30,  1898. 

In  the  Superior  Court  the  case  was  tried  without  a  jury  before 
Eichardson,  J.,  who  found  for  the  plaintiff,  and,  with  the  assent  of 
both  parties,  reported  the  case  for  the  determination  of  this  court. 
The  terms  of  the  reservation,  as  well  as  all  the  material  facts  and 
rulings,  are  stated  in  the  opinion  of  the  court. 

Lathrop,  J.  This  case  comes  before  us  in  a  somewhat  unsatisfac- 
tory manner.  It  is  a  report  of  a  justice  of  the  Superior  Court,  before 
whom  the  case  was  tried  without  a  jury.  The  report  sets  forth  certain 
facts,  certain  evidence  and  requests  for  rulings  by  both  parties,  which 
were  passed  upon,  and  a  general  finding  for  the  plaintiff,  without  any 

findings  of  specific  facts As  this  is  an  action  at  law,  the  only 

question  can  be  whether  the  evidence  warranted  the  finding.  We  have 
no  right,  if  the  testimony  of  witnesses  is  conflicting,  to  decide  the  case 
upon  a  view  of  the  testimony  which  we  might  take,  if  the  evidence 
were  before  us  for  our  decision. 

The  action  is  replevin  of  a  carload  of  lumber  sold  by  the  plaintiff 
to  George  A.  Paul,  a  lumber  dealer  at  Boston,  and  forwarded  by  the 
plaintiff  over  the  defendant's  railroad  from  East  Saginaw,  Michigan, 
to  him.  The  plaintiff  claimed  the  lumber  by  reason  of  the  exercise  of 
the  right  of  stoppage  in  transitu;  and  the  action  was  defended  by  the 
trustee  in  bankruptcy  of  Paul. 

The  lumber  was  sold  on  January  26,  1898,  for  the  sum  of  $678.28, 
Paul  to  pay  the  freight,  and  to  deduct  it  from  the  amount  of  the  in- 
voice.    The  terms  of  the  payment  were  to  be  two  per  cent  off  for  cas 
if  paid  within  ten  days,  or  a  three  months'  note  from  date  of  invoice. 
On  January  31, 1898,  the  lumber  was  duly  shipped,  consigned  to  Paid, 


730  CARRIERS    OF    GOODS. 

and  the  invoice  forwarded  to  him.  On  February  19,  1898,  the  lumber 
arrived  at  the  Huntington  Avenue  yard  of  the  defendant  in  Boston, 
and  Paul  was  notified  of  the  fact  by  the  agent  of  the  defendant,  by  a 
postal  card,  which,  in  addition  to  the  notice  of  the  arrival  of  the  car, 
contained  the  following :  "  If  not  unloaded  within  ninety-six  hours 
from  February  19,  six  o'clock  p.m.  of  this  date,  Sundays  and  legal 
holidays  not  included,  the  freight  will  be  subject  to  storage  charges, 
as  per  rules  of  the  Massachusetts  and  the  New  Hampshire  Car  Service 
Association."  On  March  4,  1898,  the  defendant  stored  the  lumber 
in  one  of  its  sheds  at  its  Huntington  Avenue  yard,  and  notified  Paul 
of  the  fact.  On  March  10, 1898,  Paul  sent  a  promissory  note  for  $300, 
dated  the  same  day,  and  payable  to  the  plaintiff's  order  at  any  bank  in 
Boston.  This  note  was  indorsed  by  the  plaintiff  payable  to  order  of 
Second  National  Bank,  and  under  the  name  of  the  plaintiff  were  the 
letters  "B.  D."  This  note  was  protested  on  June  10,  1898.  On 
March  11,  1898,  the  plaintiff  sent  a  letter  to  Paul,  stating  that  it  had 
placed  the  $300  note  to  his  credit,  and  calling  his  attention  to  the  fact 
that  the  date  of  the  note,  March  10,  was  not  in  accordance  with  the 
contract,  which  called  for  a  three  months'  note  from  the  date  of  the 
invoice,  and  requested  a  settlement  for  the  balance.  On  March  26, 
1898,  Paul  sent  the  plaintiff  a  promissory  note  for  $313.68,  dated 
that  day,  and  payable  to  the  order  of  the  plaintiff  at  any  bank  in 
Boston.  This  note  was  indorsed  in  the  same  way  as  the  other,  and  it 
was  protested  on  June  28,  1898. 

These  notes,  the  report  states,  were  sent  to  the  plaintiff  in  payment 
for  the  full  value  of  the  lumber,  with  interest  added  from  the  date  of 
the  invoice  to  the  dates  of  the  notes,  less  freight,  which  was  to  be 
deducted  from  the  amount  of  the  invoice.  On  receipt  of  the  second 
of  the  notes,  the  plaintiff  sent  to  Paul  a  statement  of  account,  dated 
January  31,  1898,  stating  the  terms  of  sale,  the  items  of  the  lumber, 
and  the  amount  due  less  freight,  being  $607.61.  Across  the  face  of 
the  paper  was  written  "  Received  settlement  as  follows :  — 

"  3  mos.  note  from  March  10/98  $300.00 

"3mos.     "       "  "      28/98  313.68 

613.68  " 

This  paper  also  contained  a  request  for  the  freight  receipt,  which 
was  not  sent,  nor  was  the  freight  paid  by  Paul. 

On  April  9,  1898,  Paul  made  a  common  law  assignment  of  all  his 
property  for  the  benefit  of  his  creditors,  and  the  assignee  accepted  the 
trust.  The  plaintiff  was  notified  of  the  assignment,  and  a  representa- 
tive of  the  plaintiff  attended  the  first  meeting  of  Paul's  creditors. 
On  April  16,  1898,  the  plaintiff  gave  notice  to  the  defendant  not  to 
deliver  the  lumber  to  Paul,  and  requested  the  defendant  to  keep  it 
on  storage  for  it,  claiming  the  right  of  stoppage  in  transitu. 

On  July  27,  1898,  the  plaintiff's  attorney  tendered  the  notes  of 
March  10  and  March  28  to  Paul's  assignee,  who  refused  to  receive 


DELIVERY    BY    CARRIER.  7;i 

them;   and  at  the  trial  of  this  case  they  were  again  tendered  and 
refused. 

This  action  was  brought  on  August  30,  1898,  and  before  obtaining 
the  lumber  the  plaintiff  was  obliged  to  pay  the  defendant  its  claim 
for  freight  and  storage.  .  .  . 

There  being  no  contention  that  Paul  was  not  insolvent,  the  principal 
questions  of  law  in  the  case  are  whether  the  transit  had  ended,  and 
what  the  effect  was  of  giving  and  receiving  the  notes. 

1.  As  to  the  first  question,  we  are  of  the  opinion  that  the  transit 
was  not  ended  when  the  plaintiff  asserted  its  right  to  the  lumber. 
It  makes  no  difference  whether  the  goods  are  in  the  hands  of  the 
carrier  qua  carrier,  or  whether  he  puts  them  at  the  journey's  end  in  a 
warehouse.  In  other  words,  the  transit  does  not  terminate  until  the 
goods  arrive  in  the  possession  actual  or  constructive  of  the  purchaser. 
Seymour  v.  Newton,  105  Mass.  272,  275.  Mohr  v.  Boston  &  Albany 
Eailroad,  106  Mass.  67.  Durgy  Cement  &  Umber  Co.  v.  O'Brien, 
123  Mass.  12.  Inslee  v.  Lane,  57  N.  H.  454.  So  long  as  the  carrier 
or  a  warehouseman  acting  for  him  is  in  possession  of  the  goods,  he 
has  a  lien  for  the  freight  or  other  charges.  The  purchaser  is  not  in 
possession  or  entitled  to  possession  until  he  discharges  the  liens,  and 
the  right  of  stoppage  in  transitu  remains.  See  Benjamin  on  Sales, 
(7th  Am.  ed.)  915,  (2),  and  cases  cited. 

While  the  position  of  the  carrier  may  be  changed  to  that  of  bailee 
or  agent  for  the  purchaser  of  the  goods,  yet  that  is  a  question  of  an 
agreement  between  the  carrier  and  the  purchaser.  Jackson  v.  Nichol, 
5  Bing.  N.  C.  508.  James  v.  Griffin,  2  M.  &  W.  623.  Ex  parte  Bar- 
row, 6  Ch.  D.  783.  Ex  parte  Cooper,  11  Ch.  D.  68.  Kemp  v.  Falk. 
7  App.  Cas.  573,  584.  McLean  v.  Breithaupt,  12  Ont.  App.  383.  Cal- 
ahan  v.  Babcock,  21  Ohio  St.  281.  Jeffris  v.  Fitchburg  Railroad, 
93  Wis.  250.     Symns  v.  Schotten,  35  Kans.  310. 

In  the  case  before  us  an  attempt  was  made  by  the  trustee  in  bank- 
ruptcy to  show  that  such  an  agreement  was  made,  but  the  testimony 
of  Paul  falls  far  short  of  this.  He  testified  that  within  a  few  days 
after  receiving  the  postal  card  of  February  19,  he  telephoned  to  the 
defendant  to  store  the  lumber.  He  was  then  asked,  "  What  did  they 
say  to  you  ?  "  and  his  answer  was:  " '  All  right,'  or  something  to  that 
effect."  He  was  then  asked,  "  Will  you  say  that  they  said  anything  '.' ' 
and  answered:  "They  probably  said,  'All  right.'  They  might  say. 
'  Yes,  all  right,'  or  something  like  that."  He  was  again  asked,  "  Whal 
did  they  say?"  and  answered,  "I  don't  know."  On  re-direct  exam- 
ination he  testified  that  he  did  not  know  whether  he  received  any 
reply  to  his  telephone  message,  and,  in  answer  to  the  next  question 
but  one,  testified  that  he  did  receive  a  reply.  It  seems  to  us  that  the 
judge  might  well  disregard  this  testimony  as  too  uncertain  and  vague 
for  consideration.  But  if  it  was  to  be  taken  into  consideration,  the 
testimony  of  Turner,  the  freight  agent  of  the  defendant  in  charj 
the  Huntington  Avenue  yard,  was  contradictory  to  that  of  Paul.     He 


732  CARRIERS   OF   GOODS. 

testified  that  he  remembered  the  car  of  lumber,  and  stored  it  in  the 
ordinary  course  of  business ;  and  that  he  received  no  directions  from 
any  one  to  store  it.  If  the  testimony  of  Paul  can  be  said  to  contra- 
dict this,  it  was  for  the  judge  sitting  without  a  jury  to  decide  what 
the  fact  was. 

We  are  therefore  of  opinion  that  the  judge  rightly  refused  to  rule, 
as  requested  by  the  defendant,  that  the  plaintiff  had  lost  the  right  of 
stoppage  in  transitu,  or  had  not  seasonably  exercised  that  right. 

It  follows,  from  what  we  have  said,  that  the  third  ruling  given  at 
the  request  of  the  plaintiff  was  correct.  This  ruling  was  as  follows : 
"  The  storage  of  the  lumber  in  question  by  the  defendant,  whether 
according  to  the  custom  of  storing  after  the  expiration  of  the  limit 
of  time  set  forth  in  the  notice  given  by  the  defendant  to  the  con- 
signee, or  in  accordance  with  the  notice  to  store  given  by  the  consignee, 
does  not  terminate  the  transit,  without  evidence  of  the  attornment  by 
the  defendant  to  the  consignee,  or  an  agreement  to  hold  as  the  agent 
of  the  consignee." 

The  fourth  ruling  given  was  as  follows:  "The  existence  of  the 
defendant's  lien  for  the  unpaid  freight  raises  the  presumption  that 
the  defendant  continued  to  hold  the  merchandise  as  carrier,  and  in 
order  to  rebut  this  presumption  there  must  be  some  proof  of  some 
agreement  or  arrangement  between  the  defendant  and  Paul,  whereby 
the  defendant,  while  retaining  its  lien,  became  the  agent  of  Paul  to 
keep  the  goods  for  him." 

While  we  do  not  think  that  this  ruling  is  well  expressed,  we  are  of 
opinion  that  no  harm  was  done  in  giving  it.  We  have  already  stated 
the  law  bearing  on  this  subject,  and  need  not  repeat  it.  The  undis- 
puted facts  in  the  case  showed  that  the  defendant  was  holding  the 
lumber  for  the  freight  and  other  charges ;  and  it  made  no  difference 
whether  the  goods  remained  in  the  car  or  in  the  warehouse,  unless 
there  was  proof  of  some  agreement  or  arrangement,  whereby  the  de- 
fendant became  the  agent  of  Paul.  Taking  the  ruling  as  a  whole,  we 
are  of  opinion  that  it  means  no  more  than  this. 

2.  The  next  question  is  as  to  the  effect  of  the  giving  of  the  notes. 
The  instructions  requested  by  the  defendant  on  this  point  are  the 
first  and  second,  and  are  as  follows : 

"  1.  If  the  consignee,  intending  to  pay  for  the  lumber  according  to 
agreement,  gave  to  the  plaintiff  his  negotiable  promissory  notes,  dated 
at  Boston,  Mass.,  and  payable  on  time  at  said  Boston,  and  thereupon 
the  plaintiff  receipted  its  bill  for  the  lumber,  and  there  was  no  agree- 
ment that  said  notes  were  accepted  as  conditional  payment,,  then  the 
law  presumes  that  such  notes  were  given  and  accepted  as  absolute 
payment,  and  in  that  case  the  plaintiff  is  not  an  unpaid  vendor  and 
has  no  further  right  on  the  lumber,  and  must  seek  his  remedy  on  the 
notes. 

2.  "  The  notes  constituted  a  contract  to  be  construed  according  to 
the  law  of  Massachusetts.     It  is  the  law  of   Massachusetts  that   a 


DELIVERY   BY   CARRIER.  733 

negotiable  promissory  note,  given  in  payment  of  an  obligation,  is  to 
be  deemed  to  be  given  and  taken  as  absolute  payment  of  such  obliga- 
tion in  the  absence  of  evidence  that  the  parties  intended  it  to  operate 
only  as  a  conditional  payment." 

On  these  requests  the  judge  ruled  "that  while  the  rules  of  law  in 
the  1st  and  2d  requests  were  correct  as  general  statements,  they  did 
not,  on  the  evidence,  require  a  finding  for  the  defendant." 

The  rule  in  Massachusetts,  in  simple  contract  debts,  is  that  a 
promissory  note  given  by  a  debtor  to  his  creditor  is  presumed  to  be  a 
payment ;  that  the  presumption  is  one  of  fact  and  not  of  law,  which 
may  be  rebutted  and  controlled  by  evidence  that  such  was  not  the 
intention  of  the  parties. 

In  Curtis  v.  Hubbard,  9  Met.  322,  328,  it.  is  said  by  Chief  Justice 
Shaw :  "  The  rule  adopted  in  Massachusetts,  that  a  negotiable  promis- 
sory note,  given  for  a  simple  contract  debt,  shall  be  deemed  payment, 
is  to  be  taken  with  considerable  qualification.  It  is  founded  on  tin- 
consideration,  that  when  a  note  is  given  for  goods,  even  if  it  is  not 
negotiated,  it  is  equally  convenient  to  the  creditor  (and  generally  more 
so)  to  sue  on  the  note,  as  on  the  original  consideration,  and  so  there 
is  no  reason  for  considering  the  original  simple  contract  as  still  sub- 
sisting and  in  force  ;  and  therefore  a  presumption  arises,  that  it  was 
intended  by  the  parties  that  the  note  should  be  deemed  a  satisfaction. 
But  this  is  a  presumption  of  fact,  which  may  be  rebutted  by  evidence 
showing  that  it  was  not  so  intended ;  and  the  fact,  that  such  presump- 
tion would  deprive  the  party  who  takes  the  note  of  a  substantial 
benefit,  has  a  strong  tendency  to  show  that  it  was  not  so  intended." 

In  a  late  case  the  reason  of  the  rule  was  stated  to  be  for  the  pro- 
tection of  the  debtor,  who  might  otherwise  be  compelled  to  pay  both 
the  note  and  the  debt,  and  it  is  further  said :  "  But  full  protection  is 
given  to  him  if,  in  the  proceedings  to  enforce  the  original  debt,  it  is 
shown  that  he  has  not  paid  the  note,  and  that  it  is  then  owned  by  the 
creditor,  and  if  it  is  surrendered  in  court  for  the  benefit  of  the  maker." 
Davis  v.  Parsons,  157  Mass.  584,  588. 

It  is  obvious  that  the  rule  can  have  little  or  no  application,  where  a 
person  has  a  lien,  which  is  a  valuable  right,  and  that  the  court  would 
be  slow  to  deprive  a  lien  creditor  of  the  right  to  enforce  his  claim  on 
the  ground  that  he  had  taken  a  worthless  negotiable  promissory  note, 
where  the  note  was  produced  at  the  trial  and  tendered  to  the  maker 
or  to  his  representative,  whether  the  above-mentioned  reasons  for  the 
rule  are  the  final  ones  or  not. 

Thus  in  Arnold  v.  Delano,  4  Cush.  33,  a  vendor's  lien  at  common 
law  was  enforced,  notwithstanding  a  promissory  note  was  given,  and 
also  a  receipt  for  the  price ;  and  it  was  said  by  Chief  Justice  Shaw 
that  a  lien  for  the  price  is  incident  to  the  contract  of  sale ;  that  when 
a  credit  is  given,  the  vendee  has  a  right  to  take  possession  of  the  goods, 
and  if  he  does  so  the  lien  is  gone.  It  was  then  added :  "  But  the 
law,  in  holding  that  a  vendor,  who  has  thus  given  credit   for  goods, 


734  CARRIERS    OF    GOODS. 

waives  his  lien  for  the  price,  does  so  on  one  implied  condition,  which  is, 
that  the  vendee  shall  keep  his  credit  good.  If,  therefore,  before  pay- 
ment, the  vendee  become  bankrupt  or  insolvent,  and  the  vendor  still 
retains  the  custody  of  the  goods,  or  any  part  of  them  ;  or  if  the  goods 
are  in  the  hands  of  a  carrier,  or  middleman,  on  their  way  to  the  vendee, 
and  have  not  yet  got  into  his  actual  possession,  and  the  vendor,  before 
they  do  so,  can  regain  his  actual  possession,  by  a  stoppage  in  transitu; 
then  his  lien  is  restored,  and  he  may  hold  the  goods  as  security  for  the 
price."  In  respect  to  the  contention  that  the  note  was  payment,  it 
was  said  :  "  We  think  the  answer  is,  that  a  promissory  note,  even  if 
in  form  negotiable,  whilst  it  remains  in  the  hands  of  the  vendor  and 
not  negotiated,  but  ready  to  be  delivered  up  on  the  discharge  of  the 
lien,  is  regarded  as  the  evidence  in  writing  of  a  promise  to  pay  for 
the  goods  purchased,  and  does  not  vary  the  rights  of  the  parties." 

If  this  is  true  of  a  vendor's  lien,  it  is  equally  true  of  the  right  of 
stoppage  in  transitu,  which  is  merely  an  extension  of  the  vendor's  lien. 
Grout  v.  Hill,  4  Gray,  361,  366,  per  Shaw,  C.  J.  See  also  1  Pars. 
Mar.  Law,  340,  and  cases  cited  in  n.  2. 

In  Seymour  v.  Newton,  105  Mass.  272,  the  goods  were  to  be  paid  for 
by  a  draft  at  three  days'  sight.  The  draft  was  accepted  but  was  not 
paid,  and  it  was  held  that  neither  the  acceptance  of  the  draft,  nor  the 
sending  to  the  purchasers  of  an  account,  in  which  they  were  credited 
with  the  draft,  prevented  the  plaintiffs  from  stopping  the  goods  in 
transitu.  To  the  same  effect  is  Mohr  v.  Boston  &  Albany  Railroad, 
106  Mass.  67.     See  also  Re  Batchelder,  2  Lowell,  245,  248. 

There  is  some  contention  on  the  part  of  the  trustee  in  bankruptcy 
that  the  notes  were  negotiated.  There  was  no  evidence  in  the  case 
to  show  the  meaning  of  the  letters  "  B.  D.,"  and  the  fact  that  the 
notes  were  indorsed  by  the  plaintiff  to  the  order  of  the  Second 
National  Bank  is  not  important.  Whether  they  were  sent  to  the 
bank  for  collection  or  were  discounted  by  it  is  immaterial.  They 
were  not  paid  by  Paul,  and  were  tendered  by  the  plaintiff  to  the 
common  law  assignee,  and  to  the  trustee  in  bankruptcy.  The  facts 
that  the  plaintiff  was  then  in  possession  of  the  notes  and  tendered 
them  is  all  that  is  required.     Davis  v.  Parsons,  157  Mass.  584,  588. 

It  follows  that  the  second  ruling  requested  by  the  plaintiff,  as  modi- 
fied by  the  judge,  was  rightly  given.  This  ruling  so  modified  was  as 
follows :  "  That  the  giving  of  the  two  notes  in  payment  for  the 
lumber  according  to  the  agreement,  while  in  form  negotiable  does  not 
prevent  the  right  of  stoppage  in  transitu,  as  they  remained  in  the 
hands  of  the  vendor,  and  ready  to  be  delivered  up." 

Nor  do  we  regard  it  of  importance  that  on  receipt  of  the  last  note 
the  plaintiff  sent  to  Paul  a  statement  of  the  account  between  them. 
The  report  does  not  show  that  this  statement  was  signed  by  the 
plaintiff.  But,  if  it  were  so  signed,  the  case  would  stand  no  stronger 
for  the  defendant  than  if  the  statement  had  been  "  Received  payment 
by  two  notes."     Then  the  case  would  have  fallen  within  the  case  of 


DELIVERY    BY    CARRIER.  735 

Arnold  v.  Delano,  4  Cush.  33,  34.     See  also  Seymour  v.  Newton.  105 

Mass.  272,  273. 

Judgment  for  j  ill  i  in  tiff. 


g.    Seizure  under  Legal  Process. 

STILES   v.    DAVIS. 
1  Black  (U.  S.)  101.     1861. 

Mr.  Justice  Nelson.  The  case  was  this:  The  plaintiffs  below, 
Davis  and  Barton,  had  purchased  the  remnants  of  a  store  of  dry- 
goods  of  the  assignee  of  a  firm  at  Janesville,  Wisconsin,  who  had 
failed,  and  made  an  assignment  for  the  benefit  of  their  creditors. 
The  goods  were  packed  in  boxes,  and  delivered  to  the  agents  of  the 
Union  Despatch  Company  to  be  conveyed  by  railroad  to  I  lion, 
Herkimer  County,  New  York. 

On  the  arrival  of  the  goods  in  Chicago,  on  their  way  to  the  place 
of  destination,  they  were  seized  by  the  sheriff,  under  an  attachment 
issued  in  behalf  of  the  creditors  of  the  insolvent  hrm  at  Janesville, 
as  the  property  of  that  firm,  and  the  defendant,  one  of  the  propri- 
etors and  agent  of  the  Union  Despatch  Company  at  Chicago,  was 
summoned  as  garnishee.  The  goods  were  held  by  the  sheriff,  under 
the  attachment,  until  judgment  and  execution,  when  they  were  sold. 
They  were  attached,  and  the  defendant  summoned  on  the  third  of 
November,  1857;  and  some  days  afterwards,  and  before  the  com- 
mencement of  this  suit,  which  was  on  the  sixteenth  of  the  month, 
the  plaintiffs  made  a  demand  on  the  defendant  for  their  goods, 
which  was  refused,  on  the  ground  he  had  been  summoned  as  gar- 
nishee in  the  attachment  suit. 

The  court  below  charged  the  jury  that  any  proceedings  in  the  State 
court  to  which  the  plaintiffs  were  not  parties,  and  of  which  they 
had  no  notice,  did  not  bind  them  or  their  property;  and  further, 
that  the  fact  of  the  goods  being  garnished,  as  the  property  of  third 
persons,  of  itself,  under  the  circumstances  of  the  case,  constituted 
no  bar  to  the  action;  but  said  the  jury  might  weigh  that  fact  in 
determining  whether  or  not  there  was  a  conversion. 

We  think  the  court  below  erred.  After  the  seizure  of  the  goods 
by  the  sheriff,  under  the  attachment,  they  were  in  the  custody  of 
the  law,  and  the  defendant  could  not  comply  with  the  demand  of 
the  plaintiffs  without  a  breach  of  it,  even  admitting  the  goods  to 
have  been,  at  the  time,  in  his  actual  possession.  The  case,  how- 
ever, shows  that  they  were  in  the  possession  of  the  sheriff's  officer 
or  agent,  and  continued  there  until  disposed  of  under  the  judgment 


736  CARRIERS    OF    GOODS. 

upon  the  attachment.  It  is  true,  that  these  goods  had  been  delivered 
to  the  defendant,  as  carriers,  by  the  plaintiffs,  to  be  conveyed  for 
them  to  the  place  of  destination,  and  were  seized  under  an  attach- 
ment against  third  persons;  but  this  circumstance  did  not  impair 
the  legal  effect  of  the  seizure  or  custody  of  the  goods  under  it,  so  as 
to  justify  the  defendant  in  taking  them  out  of  the  hands  of  the 
sheriff.  The  right  of  the  sheriff  to  hold  them  was  a  question  of 
law,  to  be  determined  by  the  proper  legal  proceedings,  and  not  at 
the  will  of  the  defendant,  nor  that  of  the  plaintiffs.  The  law  on 
this  subject  is  well  settled,  as  may  be  seen  on  a  reference  to  the 
cases  collected  in  sections  453,  290,  350,  of  Drake  on  Attach 't,  2d 
edition. 

This  precise  question  was  determined  in  Verrall  v.  Robinson, 
Turwhitt's  Exch.  R.  1069;  4  Dowling,  242,  S.  C.  There  the  plain- 
tiff was  a  coach  proprietor,  and  the  defendant  the  owner  of  a  car- 
riage depository  in  the  city  of  Londou.  One  Banks  hired  a  chaise 
from  the  plaintiff,  and  afterwards  left  it  at  the  defendant's  deposi- 
tory. While  it  remained  there,  it  was  attached  in  an  action  against 
Banks;  and,  on  that  ground,  the  defendant  refused  to  deliver  it 
up  to  the  plaintiff  on  demand,  although  he  admitted  it  to  be  his 
property. 

Lord  Abinger,  C.  B.,  observed  that  the  defendant's  refusal  to 
deliver  the  chaise  to  the  plaintiff  was  grounded  on  its  being  on  his 
premises,  in  the  custody  of  the  law.  That  this  was  no  evidence 
of  a  wrongful  conversion  to  his  own  use.  After  it  was  attached  as 
Banks'  property,  it  was  not  in  the  custody  of  the  defendant,  in  such 
manner  as  to  permit  him  to  deliver  it  up  at  all.  And  Alderson,  B., 
observed:  Had  the  defendant  delivered  it,  as  requested,  he  would 
have  been  guilty  of  a  breach  of  law. 

The  plaintiffs  have  mistaken  their  remedy.  They  should  have 
brought  their  action  against  the  officer  who  seized  the  goods,  or 
against  the  plaintiffs  in  the  attachment  suit,  if  the  seizure  was  made 
under  their  direction.  As  to  these  parties,  the  process  being  against 
third  persons,  it  would  have  furnished  no  justification  if  the  plain- 
tiff could  have  maintained  a  title  and  .right  to  possession  in  them- 
selves. 

Judgment  of  the  court  below  reversed. 


BLIVEN   v.    HUDSON   RIVER   R.    CO. 

36  N.  Y.  403.     1867. 

Parker,  J.  On  the  second  day  of  September,  1859,  the  plaintiffs 
delivered  to  the  defendants,  at  their  depot,  in  the  village  of  Sing 
Sing,    Westchester   County,    twenty-nine   cases  of  saw  plates   and 


DELIVERY    BY   CARRIER. 

handles,  of  the  value  of  $4,338.82,  for  transportation  to  the  city  of 
New  York,  which  were  on  that  day  placed  by  the  defendant  in  their 
freight  cars  for  that  purpose. 

Before  the  regular  hour  for  the  departure  of  the  train  in  which 
they  were  to  go,  a  complaint 'was  made  on  oath  by  one  Cheeseman, 
to  a  justice  of  the  peace  at  Sing  Sing,  to  the  effect  that  the  said 
merchandise  had  been  stolen  or   embezzled   from   the    1  Saw 

Manufacturing  Company  at  Sing  Sing  (of  which  company  Cheese- 
man  claimed  to  be  the  secretary),  and  that  he  suspected  that  the 
said  property  was  concealed  in  a  railroad  car  at  the  Sing  Sing  depot. 
The  magistrate  thereupon  issued  a  warrant  to  search  for  the  prop- 
erty, and  delivered  it  to  a  constable  of  the  town,  who,  in  proceeding 
under  it,  on  the  morning  of  the  3d  of  September,  forcibly  opened 
the  car  in  which  the  merchandise  was  locked,  and  seized,  and  took 
the  same  before  the  justice,  who  thereupon  sent  the  same  to  the 
place  of  business  of  the  said  manufacturing  company,  and  there 
delivered  the  same  to  said  Cheeseman,  for  said  company.  The 
plaintiff,  Bliven,  was  at  such  place  of  business  on  the  morning  of 
the  day  on  which  the  merchandise  was  so  delivered,  and  was  then 
made  acquainted  with,  and  fully  knew,  all  the  circumstances  attend- 
ing the  taking  of  said  merchandise  out  of  the  possession  of  the 
defendants,  as  before  stated. 

It  further  appears,  by  the  findings  of  the  referee  before  whom  the 
cause  was  tried,  that  the  certificate,  by  the  filing  of  which  on  the 
28th  of  November,  1858,  the  company  became  incorporated,  provided 
for  the  management  of  its  affairs  by  five  trustees,  of  whom  plaintiff 
Bliven  was  one,  and  Cheeseman  one;  and  that  by  the  by-laws,  three 
trustees  constituted  a  quorum;  that  on  the  organization  of  the  com- 
pany, a  president,  treasurer,  and  secretary  were  chosen  from  the  five 
trustees,  Bliven  being  the  treasurer.  The  manufacturing  carried  on 
by  the  company  was  done  in  the  Sing  Sing  prison,  by  the  hired  labor 
of  convicts,  in  shops  provided  for  the  company  and  under  a  superin- 
tendent employed  by  the  company.  Immediately  upon  the  organiza- 
tion, a  contract  was  made  by  the  company  with  the  plaintiffs,  by 
which  plaintiffs  were  to  have  the  sale  of  all  articles  made  by  the 
company,  on  a  commission,  and  were  to  make  advances  to  the  com- 
pany, and  hold  all  the  articles  consigned  to  them  as  security  for 
such  advances.  And  subsequently,  on  the  30th  of  June,  1859,  the 
company  gave  the  plaintiffs  a  chattel  mortgage  on  all  their  fixtures 
and  stock,  manufactured  and  unmanufactured,  and  all  their  other 
goods  and  chattels  then  or  thereafter  to  be  at  the  works  in  Sing  Sing 
prison,  as  security  for  the  payment  to  plaintiffs  on  demand,  of  all 
advances  made,  or  to  be  made,  by  them  to  the  company. 

On  the  31st  of  August,  1859,  at  an  adjourned  meeting  of  the  trus- 
tees, the  said  Cheeseman  and  one  other  trustee,  in  the  absence  oi 
the  others,  assumed  to  remove  the  president,  and  declare  his  office 
as  trustee,  vacant,  and  to  elect  one  Francis  trustee  in  his  place;  and 


738  CARRIERS    OF   GOODS. 

at  a  subsequent  time  in  New  York,  to  which  they  adjourned,  assumed 
in  conjunction  with  said  Francis,  to  remove  the  secretary  from  his 
office,  as  such,  and  to  appoint  Cheeseman  in  his  place. 

Cheeseman  thereupon  proceeded  to  Sing  Sing,  to  the  works  of  the 
company  in  the  prison,  and  took  possession  as  secretary,  notifying 
Hawley,  the  secretary,  of  his  removal. 

On  the  2d  of  September,  in  the  absence  of  Cheeseman  and  the 
superintendent,  Hawley,  still  claiming  to  be  secretary,  went  with 
Bliven  to  the  premises,  and  caused  the  articles  of  merchandise  in 
question,  which  were  not  in  a  state  of  completeness  for  the  market, 
to  be  boxed  up  and  delivered  to  Bliven  for  the  plaintiffs,  and  he 
thereupon  delivered  them,  as  before  stated,  to  the  defendants,  for 
transportation  to  New  York,  where  was  the  plaintiffs'  place  of  busi- 
ness for  selling  the  merchandise  received  by  them  for  sale.  It  does 
not  appear  from  the  findings  of  the  referee  that  the  plaintiffs  had 
made  any  advances  to  the  company,  or  that  the  company  was  at  that 
time  indebted  to  the  plaintiffs. 

There  is  no  dispute  that  the  ownership  of  the  goods  was  in  the 
manufacturing  company,  and  the  facts  found  fall  short  of  showing 
that  the  plaintiffs  had  any  lien  upon  them.  The  taking  of  them  by 
Bliven,  on  the  2d  of  September,  was  not  warranted  by  the  original 
contract,  for  that  contemplated  only  the  consignment  to  the  plain- 
tiffs of  articles  fitted  for  the  market.  Neither  was  it  warranted  by 
the  subsequent  mortgage,  for  there  was  no  indebtedness,  so  far  as 
appears,  on  which  to  rest  a  lien,  by  virtue  of  it.  The  description 
of  the  mortgage  given  by  the  referee,  is  that  it  was  upon  "  all  the 
engines,  shafts,  tools,  anvils,  and  fixtures,  stock  manufactured  and 
unmanufactured,  or  in  course  of  manufacture,  and  all  other  goods 
and  chattels  of  the  company  now  or  hereafter  to  be  at  the  works  in 
Sing  Sing  prison,  as  security  for  the  payment  to  the  plaintiffs,  on 
demand,  of  all  advances  made,  or  to  be  made,  by  them  to  the  com- 
pany." The  fact  of  the  existence  of  such  a  mortgage  does  not  carry 
with  it  the  presumption  of  an  existing  indebtedness,  as  between  the 
plaintiffs  and  the  company;  therefore,  so  far  as  appears,  not  only 
the  ownership,  but  the  right  of  possession  belonged  to  the  company. 

The  goods,  then,  belonging,  in  fact,  to  the  company,  without  any 
right  of  possession  in  the  plaintiffs,  the  delivery  of  them  by  the  jus- 
tice at  the  company's  shop,  from  which  they  had  been  taken,  to  a 
person  having  the  actual  possession  of  it  for  the  company,  was  a 
delivery  to  the  company. 

The  defendants,  then,  are  entitled  to  take  the  ground  that  the 
goods  were  taken  from  them  by  valid  legal  process,  and  under  such 
process  delivered  to  the  true  owner. 

If  it  is  said  that  the  evidence  shows  an  indebtedness  from  the 
company  to  the  plaintiffs,  we  are  not  at  liberty  to  go  into  the  evi- 
dence for  the  facts,  but  must  take  them  from  the  findings  of  the 
referee.     If  we  were  at  liberty  to  examine  the  evidence,  and  form 


DELIVERY    BY    CARRIER.     ■  739 

our  own  conclusions  of  fact,  we  should  see  Bliven  present  at,  or 
immediately  after,  the  delivering  up  of  the  goods  at  the  company's 
rooms,  claiming  them  under  plaintiffs'  mortgage,  and  as  agent  of 
the  company,  and  directing  Rooney,  the  superintendent,  who  was  in 
charge  of  the  establishment  for  the  company,  to  keep  them,  and  let 
no  one  take  them  without  his  (Bliven's)  consent,  and  that  Rooney 
thereupon  put  them  back  where  they  belonged,  and  where  they  had 
been  the  day  before,  and  that  they  remained  there  about  a  month. 
This,  I  think,  We  should  have  to  consider,  either  as  a  taking  of 
them  into  his  own  possession,  or  as  consenting  to  the  possession  of 
the  company,  either  of  which  would  exonerate  the  defendants. 

But  as  the  case  stands  upon  the  findings  of  the  referee,  I  think  it 
may  well  be  considered  a  case  of  delivery  to  the  true  owners,  through 
the  regular  process  of  the  law ;  so  that,  even  if  the  mere  taking  of 
them  out  of  the  defendants'  possession  by  valid  legal  process  would 
not  alone  be  a  defence,  there  can  be  no  doubt  that,  on  this  ground, 
a  good  defence  was  made  to  the  action.  It  is  well  settled  that  the 
right  of  the  true  owner  may  be  set  up  by  the  carrier  as  a  defence 
against  the  shipper  or  bailor,  in  all  cases  where  the  property  has 
been  delivered  up  to  him  by  the  carrier,  whether  voluntarily  on 
demand,  as  in  Bates  v.  Stanton,  1  Duer,  79,  or  taken  by  process  in 
a  suit  instituted  for  that  purpose.  Van  Winkle  v.  U.  S.  Steamship 
Co.,  37  Barb.  122;  Barton  v.  Wilkinson,  18  Vern.  186. 

But  my  associates,  not  passing  upon  the  question  whether  the 
property  was  delivered  to  the  true  owners,  desire  to  put  this  case 
upon  the  doctrine  that  the  common  carrier  is  exonerated  from  his 
obligation  to  his  bailor,  where  the  property  of  the  latter  is  taken 
from  him  by  due  legal  process,  provided  the  bailor  is  promptly 
notified  of  such  taking. 

It  is  to  be  remembered  that  the  plaintiff  Bliven  had  notice  of  the 
taking  of  the  merchandise  from  the  defendants,  with  all  the  circum- 
stances attending  it,  on  the  morning  when  it  occurred;  so  that  the 
case  is  fully  within  the  doctrine  just  referred  to. 

The  judgment  of  the  Supreme  Court  should  therefore  be  affirmed. 

All  affirm,  on  the  ground  that  when  the  property  is  taken  from 
the  carrier  by  legal  process,  and  he  gives  notice  thereof,  he  is 
discharged. 


OHIO   &   MISSISSIPPI     R.    CO.    v.    YOHE. 
51  Ind.  181.     187;'). 

Downey,  J.     This  was  an  action  by  appellees  against  the  appel- 
lant as  a  common  carrier. 

It  is  alleged  in  the  complaint  that  the  plaintiffs'  consignors,  on 


740  CARKIEES    OF    GOODS. 

the  3d  of  November,  1873,  delivered  to  the  appellant,  at  Bridgeport, 
Illinois,  a  quantity  of  wheat,  to  be  carried  to  Vincennes,  Indiana, 
and  delivered  to  the  appellees.  The  appellant  signed  and  delivered 
a  bill  of  lading  evidencing  the  contract,  and  this  is  the  foundation 
of  the  action. 

It  is  alleged  that  the  company  failed  to  deliver  the  wheat  accord- 
ing to  the  contract,  etc.  A  demurrer  to  the  complaint  was  filed  and 
overruled. 

The  defendant  moved  the  court,  on  affidavit,  to  stay  the  action 
until  the  determination  of  an  action  of  replevin  in  Illinois,  involv- 
ing the  title  and  ownership  of  the  property,  brought  by  one  Johnson. 
This  motion  having  been  overruled,  the  defendant  asked  that  John- 
son be  made  a  party  to  the  action,  which  request  was  also  refused. 
Thereupon  the  defendant  pleaded,  in  substance,  that  while  the 
wheat  was  in  a  car  of  the  company,  at  Bridgeport,  awaiting  the 
coming  of  a  train  and  engine  to  transport  it  to  Vincennes,  in  accord- 
ance with  the  bill  of  lading,  without  any  act,  fault,  or  connivance 
of  the  defendant,  or  of  any  of  her  agents,  servants,  or  employees, 
Johnson  sued  out  of  the  office  of  the  clerk  of  the  Circuit  Court  of 
Lawrence  County,  Illinois,  a  writ  of  replevin,  the  said  Johnson  then 
and  there  claiming  to  be  the  owner  and  entitled  to  the  possession  of 
said  wheat,  and,  by  virtue  of  said  writ,  the  sheriff  of  said  county 
seized  and  took  the  same  out  of  the  possession  of  the  defendant,  and 
delivered  the  same  to  said  Johnson,  according  to  law  and  the  com- 
mand of  said  writ,  and  the  said  Johnson  took  possession  thereof; 
that  said  action  is  yet  pending,  by  reason  whereof  the  defendant 
was  prevented  from  transporting  said  wheat  to  said  city  of  Vin- 
cennes, and  delivering  the  same  to  the  plaintiffs.  It  is  averred  that 
said  Lawrence  Circuit  Court  had  jurisdiction,  and  certified  copies 
of  the  papers  and  process  in  the  action  of  replevin,  etc.,  are  filed 
with  the  answer. 

A  demurrer  to  this  answer,  on  the  ground  that  it  did  not  state 
facts  sufficient  to  constitute  a  defence  to  the  action,  was  filed  by  the 
plaintiffs  and  sustained  by  the  court.  The  defendant  declining  to 
answer  further,  there  was  judgment  for  the  plaintiffs. 

It  is  objected  to  the  complaint  that  it  does  not  show  that  the 
plaintiffs  own  the  wheat,  or  that  they  are  the  consignees  mentioned 
in  the  bill  of  lading.  There  is  no  foundation  for  these  objections. 
The  complaint  alleges  that  the  plaintiffs  purchased  the  wheat  of  the 
consignors;  that  the  consignors  delivered  the  same  to  the  defendant; 
and  that  the  defendant  executed  the  bill  of  lading  to  the  plaintiffs. 

It  is  further  assigned  as  error,  that  the  court  improperly  sustained 
the  demurrer  to  the  answer. 

The  question  presented  is  this,  Is  a  common  carrier  of  goods 
excused  from  liability  for  not  carrying  and  delivering  the  goods, 
when  they  are,  without  any  act,  fault,  or  connivance  on  his  part, 
seized,  by  virtue  of  legal  process,  and  taken  out  of  his  possession? 


DELIVERY    BY    CARRIER.  74| 

It  is  impossible  for  the  carrier  to  deliver  the  goods  to  the  con- 
signee when  they  have  been  seized  by  legal  process  and  taken  out  of 
his  possession.  The  carrier  cannot  stop,  when  goods  are  offered  to 
him  for  carriage,  to  investigate  the  question  as  to  their  ownership. 
Nor  do  we  think  he  is  bound,  when  the  goods  are  so  taken  out  of 
his  possession,  to  follow  them  up,  and  be  at  the  trouble  and  expense 
of  asserting  the  claim  thereto  of  the  party  to  or  for  whom  he  under- 
took to  carry  them.  We  do  not  think  it  material  what  the  form  of 
the  process  may  be.  In  every  case  the  carrier  must  yield  to  the 
authority  of  legal  process. 

After  the  seizure  of  the  goods  by  the  officer,  by  virtue  of  the 
process,  they  are  in  the  custody  of  the  law,  and  the  carrier  cannot 
comply  with  his  contract  without  a  resistance  of  the  process  and  a 
violation  of  law. 

The  right  of  the  sheriff  to  hold  the  goods  involved  questions  which 
could  only  be  determined  by  the  tribunal  which  issued  the  process 
or  some  other  competent  tribunal,  and  the  carrier  had  no  power  to 
decide  them.  If  the  goods  were  wrongfully  seized,  the  plaintiffs 
have  their  remedy  against  the  officer  who  seized  them,  or  against 
the  party  at  whose  instance  it  was  done.  As  between  these  parties, 
the  process  would  be  no  justification  if  the  plaintiffs  were  the  owners 
and  entitled  to  the  possession  of  the  goods. 

It  makes  no  difference,  we  think,  that  the  process  was  issued  by  a 
tribunal  of  a  State  different  from  that  in  which  the  plaintiffs  reside. 
The  rule  must  be  the  same  as  in  a  case  where  the  process  emanates 
from  a  court  in  the  State  of  the  plaintiff's  residence. 

It  cannot  be  denied  that  the  carrier  must  obey  the  laws  of  the 
several  States  in  which  it  follows  its  calling.  The  laws  of  Illinois 
which  give  force  and  effect  to  a  writ  of  replevin  must  be  obeyed.  It 
cannot  say  to  the  sheriff,  who  is  armed  with  a  writ  issued  in  due 
form  of  law,  commanding  him  to  take  the  property,  that  it  has  exe- 
cuted a  bill  of  lading,  and  thereby  agreed  to  transport  the  property 
to  another  State,  and  therefore  he  cannot  have  it.  The  sheriff  would 
have  the  right,  and  it  would  become  his  duty,  to  call  out  the  power 
of  the  county  to  aid  in  serving  his  lawful  process. 

The  carrier  is  deprived  of  the  possession  of  the  property  by  a 
superior  power,  the  power  of  the  State, —  the  vis  major  of  the  civil 
law,  —  and  in  all  things  as  potent  and  overpowering,  as  far  as  the 
carrier  is  concerned,  as  if  it  were  the  "act  of  God  or  the  public 
enemy."  In  fact,  it  amounts  to  the  same  thing;  the  carrier  is 
equally  powerless  in  the  grasp  of  either. 

.  In  Redf.  Railw.,  vol.  2,  p.  158,  the  learned  author  says  that  it  is 
settled  that  the  bailee  may  defend  against  the  claim  of  the  bailor, 
by  showing  that  the  goods  have  been  taken  from  him  by  legal  process. 
And  in  a  note  he  adds,  "If  this  defence  were  not  valid,  it  might 
compel  the  party  to  resist  the  acts  of  a  public  officer  in  the  discharge 
of  his  duty,  which  the  law  will  never  do." 


742  CAKEIERS    OF    GOODS. 

In  New  York,  where  property  was  forcibly  seized  by  a  constable, 
on  a  complaint  that  the  property  had  been  stolen,  the  court  said, 
"But  my  associates,  not  passing  upon  the  question  whether  the 
property  was  delivered  to  the  true  owners,  desire  to  put  this  case 
upon  the  doctrine  that  the  common  carrier  is  exonerated  from  his 
obligation  to  his  bailor,  where  the  property  of  the  latter  is  taken 
from  him  by  due  legal  process,  provided  the  bailor  is  promptly 
notified  of  such  taking.  .  .  .  The  judgment  of  the  Supreme  Court 
should  therefore  be  affirmed.  All  affirm,  on  the  ground  that  when 
the  property  is  taken  from  the  carrier  by  legal  process,  and  he  gives 
notice  thereof,  he  is  discharged."  Bliven  v.  Hudson  River  R.  R. 
Co.,  36  N.  Y.  403  [736]. 

In  this  same  case,  in  the  Supreme  Court,  it  was  held  that  "the 
bailee  must  assure  himself,  and  show  the  court  that  the  proceedings 
are  regular  and  valid,  but  he  is  not  bound  to  litigate  for  his  bailor, 
or  to  show  that  the  judgment  or  decision  of  the  tribunal  issuing  the 
process,  or  seizing  the  goods,  was  correct  in  law  or  in  fact.  This  is 
the  rule  as  to  bailees  in  general,  and  it  includes  the  case  of  common 
carriers."     Bliven  v.  Hudson  River  R.  R.  Co.,  35  Barb.  191. 

In  a  case  where  goods  were  seized  on  attachment,  the  court  held, 
"If  goods  are  taken  from  a  bailee  or  carrier  by  authority  of  law,  in 
any  case  coming  within  these  exceptions,  there  is  no  doubt  that  it 
is  a  good  defence  to  an  action  by  the  bailor  or  shipper,  for  a  non- 
delivery." Van  Winkle  v.  United  States  Mail  Steamship  Co.,  37 
Barb.  122. 

In  Vermont,  where  goods  in  the  hands  of  a  wharfinger  were  seized 
under  legal  process,  the  court  held  that  if  they  are  taken  from  the 
wharfinger  or  warehouseman  by  lawful  process,  the  wharfinger  or 
warehouseman  can  protect  himself  in  a  suit  brought  against  him  by 
the  owner.     Burton  v.  Wilkinson,  18  Vt.  186. 

In  the  Supreme  Court  of  the  United  States,  where  goods  in  the 
hands  of  a  carrier  had  been  attached  by  a  third  party,  in  a  suit 
brought  by  the  consignees  on  a  bill  of  lading,  Mr.  Justice  Nelson, 
in  delivering  the  opinion  of  the  court,  said:  — 

"After  the  seizure  of  the  goods  by  the  sheriff,  under  the  attach- 
ment, they  were  in  the  custody  of  the  law,  and  the  defendant  could 
not  comply  with  the  demand  of  the  plaintiffs  without  a  breach  of 
it,  even  admitting  the  goods  to  have  been,  at  the  time,  in  his  actual 
possession.  The  case,  however,  shows  that  they  were  in  the  pos- 
session of  the  sheriff's  officer  or  agent,  and  continued  there  until 
disposed  of  under  the  judgment  upon  the  attachment.  It  is  true 
that  these  goods  had  been  delivered  to  the  defendant,  as  carriers,  by 
the  plaintiffs,  to  be  conveyed  for  them  to  the  place  of  destination, 
and  were  seized  under  an  attachment  against  third  persons;  but  this 
circumstance  did  not  impair  the  legal  effect  of  the  seizure  or  custody 
of  the  goods  under  it,  so  as  to  justify  the  defendant  in  taking  them 
out  of  the  hands  of  the  sheriff.     The  right  of  the  sheriff  to  hold 


DELIVERY    BY    CARRIER.  743 

them  was  a  question  of  law,  to  be  determined  by  the  proper  legal 
proceedings,  and  not  at  the  will  of  the  defendant  nor  that  of  the 
plaintiffs.  The  law  on  this  subject  is  well  settled,  as  may  be  seen 
on  a  reference  to  the  cases  collected  in  sections  453,  290,  350,  of 
Drake  on  Attachment,  second  edition."  Stiles  v.  Davis,  1  Black, 
101  [735]. 

The  above  case  is  the  same  as  the  case  at  bar,  with  the  single 
exception  that  in  Stiles  v.  Davis  the  goods  were  seized  under  an 
attachment,  while  in  this  case  they  were  seized  under  a  writ  of 
replevin. 

There  is  a  defect,  however,  in  the  answer,  which  justified  the  Cir- 
cuit Court  in  holding  it  bad,  and  that  is  the  want  of  an  averment 
that  the  defendant  gave  immediate  notice  to  the  plaintiffs  that  the 
goods  had  been  seized  and  *  taken  out  of  its  possession.  That  the 
carrier  should  do  this  seems  to  be  a  necessary  and  reasonable  quali- 
fication of  the  rule.  The  rule  is  laid  down  with  this  qualification 
in  Bliven  v.  The  Hudson  River  R.  R.  Co.,  supra.  The  only  aver- 
ment as  to  notice  in  the  answer  is  this :  "  And  the  defendant  further 
avers  that  said  plaintiffs  had  notice  before  the  commencement  of 
this  suit,  that  said  action  of  replevin  was  pending,"  etc.  The 
bill  of  lading  bears  date  November  3d,  1873.  The  writ  of  replevin 
bears  date  November  5th,  1873.  The  wheat  was  taken  and  delivered 
to  Johnson  on  the  6th  day  of  November,  1873.  The  record  does  not 
show  when  this  action  was  commenced.  The  first  date  given  is  that 
of  the  filing  of  the  amended  complaint,  February  7th,  1874.  There 
is  nothing  from  which  we  can  find  that  proper  diligence  was  used  by 
the  carrier  in  giving  notice  of  the  seizure  of  the  goods. 

It  may  be  repeated  that  the  wheat  was  received  by  the  defendant 
on  the  3d  day  of  November,  1873,  and  was  not  seized  until  the  6th. 
It  is  probable  that  a  satisfactory  excuse  or  reason  should  be  alleged 
why  the  wheat  was  not  moved  before  the  seizure.  The  answer 
admits  the  receipt  of  the  wheat  and  the  execution  of  the  bill  of 
lading,  on  the  3d  of  November,  and  then  alleges,  "and  thereupon 
said  wheat  was  loaded  into  a  car  of  defendant  then  standing  upon 
her  side  track,  at  said  town  of  Bridgeport,  and  while  said  wheat  was 
in  said  car,  and  so  upon  said  track,  and  awaiting  the  arrival  of  a 
train  and  engine  to  transport  the  same  to  the  city  of  Vincennes  afore- 
said, in  accordance  with  the  terms  of  said  bill  of  lading,  and  with- 
out the  act,  fault,  or  connivance  of  the  defendants  or  of  any  of  her 
agents,  servants,  or  employees,  one  Benjamin  F.  Johnson  sued  out," 
etc.  It  is  very  questionable  whether  this  shows  proper  diligence  on 
the  part  of  the  carrier.  We  need  not,  however,  decide  this  ques- 
tion. Clearly,  we  think,  the  carrier  cannot  make  use  of  the  fact 
that  the  property  has  been  seized  by  legal  process  to  shield  himself 
from  liability  for  his  own  negligence,  or  to  justify  any  improper 
confederation  with  the  party  or  officer  seizing  the  goods. 

The  rulings  of  the  court  on  the  motions  to  stay  the  proceedings  in 


744  CARRIERS    OF    GOODS. 

the  action,  and  to  cause  Johnson  to  be  made  a  party  to  the  action, 
were  proper,  for  the  reasons  stated  in  determining  the  validity  of 
the  answer. 

A  question  is  made  concerning  the  publication  of  a  deposition 
taken  by  the  plaintiffs,  which,  it  is  contended,  was  not  properly 
directed  on  the  envelope.  But  as  the  deposition  .was  not  used  on 
the  trial,  the  defendant  could  not  have  been  injured  by  this  ruling. 

The  judgment  below  is  affirmed,  with  costs. 


EDWAKDS   v.    WHITE   LINE   TKANSIT   CO. 
101  Mass.  159.     1870. 

Contract  against  common  carriers  for  breach  of  their  agreement 
to  carry  safely  from  Cincinnati  to  Providence,  and  deliver  to  the 
plaintiffs  a  car-load  of  middlings.  Another  count  on  a  contract  to 
carry  coin  is  now  immaterial. 

Wells,  J.  The  only  exception  relied  on  here  is  that  which  relates 
to  the  car-load  of  "middlings"  taken  from  the  carriers  by  attach- 
ment, and  sold  on  execution,  in  a  suit  brought  in  New  York  against 
the  plaintiffs'  consignors,  David  Schwartz  &  Company,  by  parties 
from  whom  they  had  previously  obtained  the  property. 

The  court  held,  and  we  think  correctly,  that  there  was  a  sufficient 
transfer  and  delivery  from  David  Schwartz  &  Company  to  vest  the 
title  in  the  plaintiffs ;  that  the  suit  against  David  Schwartz  &  Com- 
pany, the  judgment  therein,  and  levy  upon  the  property,  were  suffi- 
cient to  show  a  waiver  of  the  condition  of  the  sale  by  which  David 
Schwartz  &  Company  obtained  possession  of  it  from  the  former 
owners.  Aside  from  that  consideration,  any  defect  in  the  title  of 
the  bailor  could  not  be  set  up  against  him  or  against  his  consignee, 
by  the  bailee,  unless  the  superior  title  had  been  asserted  against  the 
bailee.  In  this  case  the  property  was  not  taken  from  the  carrier 
by  virtue,  or  upon  the  assertion,  of  any  superior  title  in  the  former 
owners.  ■  It  was  taken  as  the  property  of  David  Schwartz  &  Com- 
pany, by  means  of  legal  process  against  them.  For  all  purposes  of 
this  decision,  therefore,  we  may  lay  out  of  view  the  claim  that 
Schwartz  &  Company  had  not  acquired  title  and  right  to  transfer 
the  property,  and  regard  the  plaintiffs  as  having  become  the  absolute 
owners  of  it  before  the  attachment. 

The  judge  who  tried  the  case  decided,  that,  "  as  under  the  attach- 
ments the  goods  were  taken  out  of  the  possession  of  the  defendants  " 
without  collusion,  negligence,  or  fraud  on  their  part,  "the  perform- 
ance of  their  contract  to  carry  and  deliver  the  goods  was  thus  ren- 
dered impossible  by  the  intervention  of  a  superior  power,   which 


DELIVERY    BY    CARRIER.  745 

necessarily  excused  them  from  such  performance;  that,  upon  the 
attachment  by  the  sheriff  of  the  goods,  the  same  came  into  the  cus- 
tody of  the  law;  whether  they  were  the  property  of  the  plaintiffs 
or  of  David  Schwartz  &  Company,  they  were  in  the  custody  of  the 
law  for  adjudication;"  and  that  the  defendants  could  not  be  held 
liable  for  not  transporting  and  delivering  goods  so  taken  from  them. 
This  ruling  is  in  accordance  with  what  might  seem,  at  first  sight, 
to  be  the  decision  of  the  Supreme  Court  of  the  United  States  in 
Stiles  v.  Davis,  1  Black,  101  [735].  The  defendants'  counsel  insists 
that  to  hold  otherwise  would  be  in  direct  conflict  with  that  decision. 
We  do  not  so  regard  the  matter.  In  Stiles  v.  Davis  the  action 
was  not  brought  upon  the  contract  of  carriage;  nor  for  a  violation, 
by  the  defendant,  of  his  obligations  as  carrier.  It  was  an  action  of 
trover  for  the  conversion  of  the  goods.  The  failure  to  deliver  the 
goods  at  another  place  than  that  of  their  destination,  upon  a  demand 
made  there,  with  no  denial  of  the  plaintiffs'  right,  but  merely  for 
the  reason  that  they  were  detained  under  attachment  by  legal  process, 
would  not  be  a  conversion  of  the  property.  The  case  decides  noth- 
ing more.  The  question,  whether  the  same  facts  would  constitute 
a  good  defence  to  a  suit  against  the  defendant  for  breach  of  his  con- 
tract or  obligation  as  common  carrier,  was  not  decided,  and  was  not 
raised  by  the  form  of  the  action.  The  opinion,  by  Mr.  Justice 
Nelson,  does,  indeed,  assign,  as  a  reason  for  the  decision,  that  the 
goods  "  were  in  the  custody  of  the  law,  and  the  defendant  could  not 
comply  with  the  demand  of  the  plaintiffs  without  a  breach  of  it;" 
that  "the  right  of  the  sheriff  to  hold  them  was  a  question  of  law,  to 
be  determined  by  the  proper  legal  proceedings,  and  not  at  the  will 
of  the  defendant,  nor  that  of  the  plaintiffs."  But  this  language 
must  be  interpreted  with  reference  to  the  precise  question  then 
under  consideration.  In  one  sense,  the  property  was  in  the  custody 
of  the  law ;  so  far,  at  least,  that  the  surrender  of  its  possession  to 
the  officer  claiming  to  attach  it  upon  legal  process  was  not  tortious 
on  the  part  of  the  carrier,  so  as  to  subject  him  to  the  charge  of  con- 
verting it  to  his  own  use.  But  that  custody  was  of  no  effect  against 
any  one  having  an  interest  in  the  property,  not  made  party  to  the 
suit  in  which  the  process  issued.  It  was  not  in  the  custody  of  the 
law  in  the  sense  in  which  property  that  is  the  subject  of  proceedings 
in  rem  is  in  the  custody  of  the  law,  or  property  actually  belonging 
to  the  party  against  whom  the  suit  is  brought.  In  personal  actions, 
the  attachment  of  property  of  another  than  a  defendant  in  the  suit 
is  a  trespass ;  and,  as  the  true  owner,  the  property  is  not  regarded 
as  in  the  custody  of  the  law.  It  may  be  reclaimed  by  replevin; 
except  where  the  replevin  would  bring  State  and  federal  authorities 
into  conflict,  as  in  Howe  v.  Freeman,  14  Gray,  56G;  s.  c.  24  How. 
450.  The  officer  may  always  be  held  liable  as  a  trespasser  for  its 
full  value,  notwithstanding  the  pendency,  and  without  reference  to 
the  suit  in  which  the  attachment  was  made.     The  liability  is  ex- 


746  CARRIERS   OF   GOODS. 

pressly  recognized  in  the  closing  paragraph  of  the  opinion  of  Mr. 
Justice  Kelson.  See  also  Buck  v.  Colbath,  3  Wallace,  334.  It 
does  not  appear,  from  the  report,  how  far,  if  at  all,  the  decision  in 
Stiles  v.  Davis  was  affected  by  the  fact  that  the  carrier  was  made  a 
party  to  the  proceedings,  as  garnishee. 

The  present  suit  is  brought  against  the  defendants  upon  their 
contract  as  carriers.  Assuming  that  the  title  to  the  property  had 
vested  in  the  plaintiffs,  according  to  the  finding  of  the  facts  at  the 
trial,  the  attachment  by  the  officer,  in  a  suit  against  David  Schwartz 
&  Company,  was  a  mere  trespass.  As  against  the  plaintiffs,  it  was 
of  no  more  validity  than  a  trespass  by  any  other  unauthorized  pro- 
ceeding, or  by  an  unofficial  person.  The  carrier  is  not  relieved  from 
the  fulfilment  of  his  contract,  or  his  liability  as  carrier,  by  the  inter- 
vention of  such  an  act  of  disposition,  any  more  than  he  is  by 
destruction  from  fire,  or  loss  by  theft,  robbery,  or  unavoidable  acci- 
dent. In  neither  case  is  he  liable  in  trover  for  conversion  of  the 
property;  but  he  is  liable  on  his  contract,  or  upon  his  obligations 
as  common  carrier.  The  owner  may,  it  is  true,  maintain  trover 
against  the  officer  who  took  the  property  from  the  carrier;  but  he 
is  not  obliged  to  resort  to  him  for  his  remedy.  He  may  proceed 
directly  against  the  carrier  upon  his  contract,  and  leave  the  carrier 
to  pursue  the  property  in  the  hands  of  those  who  have  wrongfully 
taken  it  from  him. 

It  will  not  be  understood,  of  course,  that  these  considerations 
apply  to  the  case  of  such  an  attachment  in  a  suit  against  the  owner 
of  the  property.  If  the  present  plaintiffs  had  been  defendants  in 
the  suit  in  which  the  attachment  was  made,  the  case  would  have 
stood  differently.  In  that  state  of  facts,  the  property  would  have 
been  strictly  in  the  custody  of  the  law,  so  far  as  these  parties  were 
concerned,  and  the  intervention  of  those  legal  proceedings  would 
have  deprived  the  plaintiffs  of  the  right  to  require  the  delivery  of 
the  property  to  themselves  until  released  from  that  custody. 

But  it  is  not  so  upon  the  state  of  facts  shown  by  this  report;  and 
the  ruling  of  the  court  against  the  plaintiffs  upon  this  branch  of  the 
case  was  wrong.  They  are  therefore  entitled  to  a  new  trial  upon  the 
counts  of  their  declaration  relating  to  the  car-load  of  "middlings;" 
and  for  that  purpose  the  Exceptions  are  sustained. 


KIFF  v.  OLD   COLONY   &  NEWPORT   R.  CO. 

117  Mass.  591.     1875. 

Tort,  with  a  count  in  contract,  against  the  defendant  as  a  com- 
mon carrier,  for  a  failure  to  deliver  certain  property  described  in 
the  declaration  as  spirituous  liquors,  and  alleged  to  be  of  the  value 
of  $713. 


DELIVERY    BY    CARRIER.  747 

At  the  trial  in  the  Superior  Court,  before  Bacon,  J.,  the  plaintiff 
offered  evidence  tending  to  show  that  the  property  was  his,  was 
shipped  by  him,  and  came  into  the  possession  of  the  defendant  as 
a  common  carrier,  and  was  so  in  its  possession  at  Boston  in  due 
course  of  transportation  to  Belfast,  Maine ;  that  the  defendant  failed 
to  deliver  it  to  him  at  Boston  on  demand. 

The  defendant  then  offered  evidence  tending  to  show  that  on  the 
day  the  goods  were  received  by  it  at  Boston,  they  were  taken  from 
its  possession  by  Robert  S.  Carroll,  a  duly  appointed  and  qualified 
constable  of  the  city  of  Boston,  without  fraud  or  collusion  on  its 
part,  against  its  will,  and  Avith  no  knowledge  that  they  were 
spirituous  liquors,  on  a  legal  and  valid  writ  of  attachment,  having 
an  ad  damnum  of  three  hundred  dollars,  against  the  plaintiff,  in  the 
case  at  bar  and  in  favor  of  William  F.  Nye. 

The  defendant  then  requested  the  judge  to  rule  that  if  the  goods 
were  taken  from  its  possession  on  a  legal  and  valid  writ  of  attach- 
ment against  the  plaintiff,  by  a  proper  officer,  without  fraud  or  col- 
lusion on  its  part,  against  its  will,  and  with  no  knowledge  that  they 
were  spirituous  liquors,  it  was  not  liable  for  a  failure  to  deliver  the 
goods  to  the  plaintiff.  The  judge  declined  so  to  rule,  and  ruled 
that  the  goods  were  not  liable  to  be  taken  on  a  writ  of  attachment 
against  the  owners;  that  the  facts  offered  to  be  shown  by  the  defend- 
ant constituted  no  defence  to  this  action,  and  that  the  only  question 
for  the  jury  was  the  value  of  the  property  at  the  time  the  defendant 
failed  to  deliver  it  to  the  plaintiff,  to  which  the  defendant  alleged 
exceptions. 

The  judge,  after  verdict,  reported  the  case  for  the  consideration 
of  this  court;  if  the  rulings  for  the  plaintiff  were  sustained,  judg- 
ment to  be  entered  on  the  verdict;  if  not,  the  verdict  to  be  set  aside. 

Gray,  C.  J.  In  Ingalls  v.  Baker,  13  Allen,  449,  it  was  adjudged 
by  this  court,  upon  full  consideration  of  the  provisions  of  the 
General  Statutes  and  of  the  previous  legislation  of  the  Common- 
wealth upon  the  subject  now  before  As,  that  the  Gen.  Sts.  c.  86, 
§28,  prohibiting  the  sale  of  intoxicating  liquors,  directly  or  in- 
directly, except  as  authorized  in  that  chapter,  and  containing  no 
exception  of  sales  by  officers  under  legal  process,  manifested  the 
intention  of  the  legislature  that  intoxicating  liquors  should  not  be 
sold  on  execution,  and  therefore  such  liquors  could  not  be  lawfully 
attached  on  mesne  process. 

In  1868,  the  legislature  passed  a  new  act  to  regulate  the  sale  of 
intoxicating  liquors,  which  provided  that  "nothing  herein  contained 
shall  apply  to  sales  made  by  sheriffs,  deputy  sheriffs,  coroners^con- 
stables,  collectors  of  taxes,  executors,  administrators,  guardians, 
assignees  in  insolvency  or  bankruptcy,  or  any  other  person  required 
by  law  to  sell  personal  property;"  and  that  "the  eighty-sixth  chap- 
ter of  the  General  Statutes,  and  all  acts  and  parts  of  acts  inconsis- 
tent herewith,  are  hereby  repealed."     St.  1868,  c.  141,  §§  1,  26. 


748  CARRIERS    OF    GOODS. 

But  in  1869,  the  legislature  again  revised  the  wholo  law  upon  the 
subject,  re-enacted  the  provision  of  the  G'en.  Sts.  c.  86,  §  28,  and 
expressly  repealed  the  previous  statutes,  including  the  St.  of  1868, 
c.  141.     St.  1869,  c.  415,  §§  30,  65. 

These  statutes  of  1868  and  1869  were  passed  after,  and  it  must 
be  presumed  with  full  knowledge  of,  the  decision  in  Ingalls  v.  Baker. 
The  conclusion  is  inevitable  that  the  legislature,  when  they  re- 
pealed the  St.  of  1868,  c.  141,  and  re-enacted  the  provision  of  the 
Gen.  Sts.  c.  86,  §  28,  intended  that  the  exception  introduced  by  the 
St.  of  1868,  and  which  had  been  held  by  this  court  not  to  exist  under 
the  General  Statutes,  should  not  exist  for  the  future,  and  that  the 
law  of  the  Commonwealth  should  be  as  declared  in  Ingalls  v.  Baker. 
Low  v.  Blanchard,  116  Mass.  272,  274. 

It  follows  that  the  plaintiff's  liquors  were  not  liable  to  attach- 
ment, the  attachment  of  them  was  illegal,  and  the  officer  who 
attached  them  a  trespasser.  Bean  v.  Hubbard,  4  Cush.  85;  Deyo 
v.  Jennison,  10  Allen,  410,  413. 

Every  common  carrier  of  goods  being  in  the  nature  of  an  insurer, 
liable  —  upon  grounds  of  public  policy ,  and  to  guard  against  the 
possibility  of  fraud  and  collusion  on  his  part — for  all  losses,  even 
by  accident,  trespass,  theft,  robbery,  or  any  kind  of  unlawful  tak- 
ing, and  excepting  only  those  arising  by  act  of  God  or  of  public 
enemies,  it  also  follows  that  it  was  rightly  ruled  at  the  trial  that 
the  facts  offered  to  be  shown  by  the  defendant  corporation  constituted 
no  defence  to  this  action  against  it  as  a  common  carrier.  2  Kent 
Com.  (12th  ed.)  597;  Coggs  v.  Bernard,  2  Ld.  Kaym.  909,  918  [4]; 
s.  c.  3  Salk.  11;  Edwards  v.  White  Line  Transit  Co.,  104  Mass. 
159  [744]  ;  Adams  v.  Scott,  id.  164,  166  [748]. 

Judgment  on  the  verdict  for  the  plaintiff . 


ADAMS   v.    SCOTT   &   Trustees. 
104  Mass.  164.     1870. 

Contract  on  a  promissory  note.  The  principal  defendant,  whose 
residence  was  at  Norwich  in  Connecticut,  appeared,  answered,  and 
filed  a  declaration  in  set-off.  The  parties  summoned  as  trustees 
were  an  express  company.  In  the  Superior  Court,  "upon  motion  to 
charge  them  as  trustees,  it  appeared  that  they  as  common  carriers 
had  taken  a  package  securely  sealed  up,  containing  money,  and 
directed  to  a  person  of  the  same  name  as  the  defendant  at  Norwich, 
Connecticut.  The  plaintiff  filed  allegations  that  the  person  to  whom 
the  package  was  addressed  was  in  fact  the  principal  defendant,  and 
that  the  package  was  his  property  when  intrusted  to  the  carriers 


DELIVERY   BY    CARRIER.  749 

and  also  when  process  was  served.  Issue  being  joined,  the  facts 
were  found  as  alleged  by  the  plaintiff.  While  the  package  was  thus 
in  transit  and  in  the  custody  of  the  trustees  in  Boston,  this  process 
was  served  upon  them."  Lord,  J.,  ordered  the  trustees  to  be  charged, 
and  they  alleged  exceptions. 

Morton,  J.  The  answers  of  the  trustees  disclose  that  they  have 
in  their  possession  a  package  supposed  to  contain  money,  sealed  up, 
and  directed  to  a  person  of  the  same  name  as  the  defendant  at 
Norwich,  Connecticut.  Upon  the  trial  of  an  issue  upon  additional 
allegations  tiled  by  the  plaintiff,  it  was  proved  that  the  person  to 
whom  the  package  was  addressed  was  in  fact  the  defendant;  that 
the  package  contained  money ;  and  that  it  was  the  property  of  the 
defendant  when  it  was  intrusted  to  the  trustees  and  when  the  process 
was  served  upon  them.  The  case  thus  differs  from  Bottom  v.  Clarke, 
7  Cush.  487,  in  which  the  trustees  were  discharged  because  it  did 
not  appear  that  the  locked  trunk  in  their  hands  contained  any  goods, 
effects,  or  credits  of  the  principal  defendant  which  were  attachable. 
In  the  case  at  bar,  the  sealed  package  is  proved  to  contain  money 
belonging  to  the  defendant,  and  thus  the  trustees  are  brought  within 
the  provisions  of  the  Gen.  Sts.  c.  142,  §  21,  "having  goods,  effects, 
or  credits  of  the  defendant  intrusted  or  deposited  in  their  hands  or 
possession."  They  are  therefore  chargeable  as  trustees,  unless  the 
fact  that  the  money  was  in  their  hands  as  common  carriers,  in 
transitu,  exonerates  them. 

There  is  no  reason  why  a  common  carrier  should  not  be  liable  to 
the  trustee  process,  in  the  same  manner  as  other  bailees  are,  unless 
the  nature  of  his  contract  is  such  that  a  judgment  charging  him  as 
trustee  would  not  protect  him  against  a  claim  of  the  defendant  for 
a  non-delivery  of  the  goods  at  their  place  of  destination.  But  we 
are  of  opinion  that  such  judgment  would  be  a  sufficient  excuse  to  the 
trustee  for  a  failure  to  deliver  according  to  his  contract.  The  doc- 
trine of  the  common  law,  that  a  carrier  is  responsible  for  all  losses, 
except  those  occurring  by  the  act  of  God  or  a  public  enemy,  has  no 
application  to  a  case  like  the  present.  There  has  been  no  loss,  but 
the  defendant's  property  has  been  sequestrated  by  the  law,  to  be 
applied  to  his  use  and  benefit.  Every  man  holds  his  property  sub- 
ject to  be  attached,  and  whenever  property  is  attached  in  a  suit 
against  the  owuer,  and  taken  into  the  custody  of  the  law,  it  excuses 
the  person  having  possession  of  it  from  performing  his  promise, 
express  or  implied,  to  deliver  it  to  the  owner.  The  law  substitutes 
the  delivery  to  its  officers  for  a  performance  of  his  contract. 

It  is  not  a  sound  argument,  therefore,  to  urge  that  these  trustees 
should  be  discharged  because  otherwise  they  cannot  perform  their 
contract  to  deliver  at  Norwich.  The  necessary  effect  of  every  trus- 
tee process  is,  by  diverting  the  property  to  the  payment  of  the  cred- 
itor, to  prevent  the  trustee  from  strictly  performing  his  contract  with 
the  defendant. 


750  CARRIERS    OF    GOODS. 

In  the  case  at  bar,  the  Superior  Court  has  jurisdiction  over  the 
subject-matter  and  the  parties,  the  defendant  having  appeared.  A 
judgment  against  him  and  against  the  trustees  will  be  valid  and 
binding,  and  by  the  provisions  of  our  statutes  will  acquit  and  dis- 
charge the  trustees  from  all  demands  by  the  defendant  for  all  goods, 
effects,  or  credits  paid  or  delivered  by  them  by  force  of  such  judg- 
ment. Gen.  Sts.  c.  142,  §  37.  We  may  reasonably  presume  that 
the  same  effect  would  be  given  to  it  in  every  other  jurisdiction. 
Whipple  v.  Bobbins,  97  Mass.  107. 

This  case  is  clearly  distinguishable  from  Edwards  v.  White  Line 
Transit  Co.,  ante,  159  [744].  In  that  case,  the  property  of  the  plain- 
tiff, while  iu  the  hands  of  a  common  carrier,  in  transitu,  was  attached 
upon  a  writ  against  a  third  person.  The  attachment  was  clearly 
illegal,  and  the  plaintiff  thereby  lost  his  property.  The  officer, 
though  acting  under  color  of  legal  process,  was  a  mere  trespasser; 
and  the  defendants  were  liable,  under  the  rule  of  the  common  law, 
in  the  same  manner  as  if  they  had  allowed  any  other  trespasser  to 
take  the  goods  out  of  their  custody. 

The  case  of  Clark  ?>.  Brewer,  6  Gray,  320,  cited  by  the  trustees, 
is  clearly  distinguishable  from  the  case  at  bar.  In  Clark  v.  Brewer 
the  alleged  trustee  had  no  goods  or  effects  of  the  defendant  in  his 
hands.  He  had  contracted  to  deliver  to  the  defendant  in  New  York 
goods  to  a  fixed  amount  at  the  market  price;  which  goods  would 
become  the  property  of  the  defendant  when  delivered,  and  not 
before.  The  plaintiff  sought  to  charge  him  as  trustee  by  reason  of 
this  contract.  But  the  court  held  that,  as  the  provisions  of  the 
statute  charging  as  trustee  one  who  is  bound  by  contract  to  deliver 
specific  goods  to  the  defendant  at  a  certain  time  and  place  were  not 
applicable  to  contracts  for  the  delivery  of  goods  at  any  place  out  of 
the  State,  the  alleged  trustee  could  not  be  charged.  There  was  no 
provision  of  the  statute  by  which  he  was  chargeable. 

The  case  at  bar  is  different.  The  trustees  have  in  their  hands 
goods  belonging  to  the  defendant ;  they  are  not  chargeable  by  reason 
of  any  contract  to  deliver  goods  to  the  defendant,  but  because  they 
have  in  their  possession  his  goods  and  effects  and  are  thus  brought 
directly  within  the  provisions  of  the  twenty-first  section  of  chapter 
142  of  the  General  Statutes.  The  fifty-fourth  section  of  the  same 
chapter  does  not  apply  to  this  case;  but  it  comes  within  the  pro- 
vision contained  in  the  fifty-second  section,  that,  when  a  person  is 
charged  as  trustee  by  reason  of  goods  of  the  defendant  which  he 
holds,  he  shall  deliver  the  same  to  the  officer  who  holds  the 
execution. 

For  the  reasons  we  have  stated,  we  are  of  opinion  that  the  trustees 
must  be  charged, 

^Exceptions  overruled. 


DELIVERY    BY    CARRIER.  7.-4 


MONTROSE  PICKLE  CO.  v.    DODSON  &  HILLS 

MANUF.    CO. 

76  Iowa,  172.     1388. 

This  is  an  action  upon  an  account  for  merchandise  sold  and 
delivered  by  the  plaintiff  to  the  Dodson  &  Hills  Manufacturing 
Company,  defendant.  An  attachment  was  issued  upon  the  ground 
that  the  defendant  was  a  non-resident  of  the  State ;  and  the  Diamond 
Jo  Line  of  steamers,  a  corporation,  was  garnished  in  the  action, 
upon  the  claim  or  supposition  that  it  had  property  in  its  possession 
belonging  to  the  defendant,  which  was  liable  to  attachment.  The 
garnishee  answered,  denying  that  it  had  any  property  in  its  custody 
subject  to  the  writ.  Issue  was  taken  upon  the  answer  of  the  gar- 
nishee, and  a  trial  was  had  by  the  court,  and  a  judgment  was  ren- 
dered discharging  the  garnishee.     Plaintiff  appeals. 

Rothrock,  J.  At  the  time  the  action  was  commenced  the  plain- 
tiff was  a  resident  of  this  State.  The  defendant  was  a  non-resident 
of  the  State,  and  a  resident  of  the  State  of  Missouri.  Service  of 
the  original  notice  and  of  the  notice  of  garnishment  was  made  per- 
sonally on  the  defendant  in  St.  Louis,  in  that  State.  The  defendant 
made  no  appearance  in  the  action,  and  a  default  was  entered  against 
it,  and  what  appears  to  have  been  a  personal  judgment  was  rendered 
upon  the  default.  It  is  not  important  to  determine  the  effect  of  the 
judgment  rendered  upon  service  of  the  original  notice  out  of  the 
State.  It  is  not  a  material  question  in  the  case.  The  Diamond  do 
Line  of  steamers  is  an  Iowa  corporation,  with  its  principal  place  of 
business  at  the  city  of  Dubuque.  It  is  a  common  carrier  of  freight 
and  passengers  upon  steamers  to  and  from  all  points  on  the  Mis- 
sissippi River  between  St.  Paul,  Minn.,  and  St.  Louis,  Mo.  On  the 
thirtieth  day  of  September,  1887,  said  steamer  company  received  on 
board  of  one  of  its  boats,  at  Alexandria,  Mo.,  some  five  hundred  or 
six  hundred  barrels  of  pickles,  for  transportation  to  St.  Louis.  The 
property  was  shipped  by  the  Dodson  &  Hills  Manufacturing  Com- 
pany, at  Alexandria,  to  the  Dodson  &  Hills  Manufacturing  Company 
at  St.  Louis.  The  pickles  were  loaded  on  the  steamer  on  the  fore- 
noon of  that  day.  On  the  same  day,  and  while  the  steamer,  with 
the  property  in  dispute  on  board,  was  on  its  way  down  the  river  to 
its  destination,  the  garnishment  notice  was  served  on  the  steamer 
company  at  Dubuque,  and  on  one  of  its  agents  at  Keokuk. 

The  question  to  be  determined  is  whether  the  property  was  liable 
to  attachment  by  garnishment.  The  Superior  Court  held  that  the 
garnishee  was  not  liable,  because  the  property  was  not  within  the 
jurisdiction  of  that  court;  that  the  defendant's  title  thereto  was  not 
doubtful;  that  it  was  capable  of  manual  delivery,  and,  if  within  the 


752  CARRIERS    OF   GOODS. 

jurisdiction  of  the  court,  it  should  have  been  levied  upon  and  taken 
into  custody  by  the  officer  executing  the  writ  of  attachment;  and 
that  it  was  not  the  subject  of  garnishment.     This  is  the  sole  ques- 
tion presented  to  this  court  for  determination.     The  ground  of  the 
attachment  was  that  the  defendant  was  a  non-resident  of  this  State. 
An  attachment  issued  upon  this  ground  avails  nothing,  unless  the 
defendant  has  property  or  debts  owing  to  him  within  this   State. 
Without  such  property  or  debts,  there  could  be  no  service  of  the 
attachment,  either  by  actual  levy,  or  by  the  process  of  garnishment. 
It  is  not  claimed  by  appellant  that  any  jurisdiction  of  the  property 
could  be  obtained  by  seizing  it  outside  the  State.     The  contention 
is  that,  as  the  garnishee  is  a  resident  of  the  State,  the  situs  or  loca- 
tion of  the  property  in  question  must  be  held  to  be  in  this  State. 
This  rule  has  been  held  to  apply  to  debts  owing  by  the  garnishee 
to  the  defendant.     Mooney  v.  Union  Pac.  By.   Co.,  60  Iowa,  346. 
That  was  a  case  of  garnishment  of  the  wages  of  a  railroad  employee. 
The  garnishee  was  held  to  be  a  resident  of  this  State,  and  there  was 
no  contract  that  the  wages  due   were  to  be  paid   in  the  State  of 
Nebraska,   where  the  employee  resided  and  the  garnishee  had  its 
principal  place   of   business.     It  appears   to  us  that   the   right   to 
garnish  the  steamer  company,  and  hold  it  for  the  value  of  the  prop- 
erty  in   question  in   this   case,  presents  a  very  different  question. 
The   law  of   attachment  in  this   State  does   not   contemplate   that 
property  not  actually  within  the  State,  but  located  in  another  State, 
shall  be  the  subject  of  garnishment.     We  need  not  cite  the  various 
sections  of  the  statute  upon  the  subject  of  attachment  and  garnish- 
ment.    Its  whole  scope  and  tenor  lead  to  the  conclusion  that  the 
claim  made   by  counsel  for  appellant   cannot   be    sustained.     The 
argument  of  the  appellant  is  grounded  upon  the  thought  that  when 
the  garnishment  notice  is  served,  the  relation  of  debtor  and  creditor 
at  once  arises  between  the  garnishee  and  the  defendant.     It  is  true 
the   statute  provides  that  a  judgment  may  be  rendered  against  the 
garnishee  if  he  does  not  deliver  the  property  to  the  sheriff.     This  is 
a  right  given  to  the  garnishee.     He  may  at  any  time,  after  answer, 
exonerate  himself  by  placing  the   property  at  the  disposal  of  the 
sheriff.     Code,  sec.  2986.     If   property  in  a  distant  State  may  be 
reached  by  process  of  garnishment,  in  order  to  avail  himself  of  this 
right  the  garnishee  must  transport  the  property  to  the  sheriff  hold- 
ing  the  writ,   and   deliver   it  to   him.     The    garnishee   cannot  be 
deprived  of  this  right,  and  as  he  is  an  innocent  party,  he  cannot  be 
compelled  to  bring  the  property  within  the  jurisdiction  of  the  court. 
The  facts  in  this  case  are  as  good  an  illustration  of  the  fallacy  of 
this  claim  as  can  be  given.     The  steamer  company  had  taken  this 
property  upon  one  of  its  boats,  and  was  under  way,  bound  under  its 
contract  of  affreightment  to  deliver  the  same  at  St.  Louis.     To  avail 
itself  of  its  right  under  the  above  statute,  it  would  be  required  to 
ship  the  goods  back  to  Keokuk,  make  its  answer,  and  deliver  the 


REMEDIES   AS   AGAINST   CARRIER.  753 

property  to  the  sheriff.     The  law  imposes  no  such  an  obligation 
upon  a  garnishee;  and  yet,  under  the  claim  made  by  appellant,  the 
garnishee  must  either  do  this'or  become  the  debtor  of  the  defendant 
for  the  value  of  the  property.     The  law  puts  no  such  a  hardship 
upon  a  garnishee.     It  is  very  different  where  a  debt  is  garnished. 
It  is  a  debt  first  and  last.     In  such  case  the  process  of  the  law  does 
not  practically  compel  the  garnishee  to  become  a  debtor  against  his 
consent.     This  identical  question  was  determined  by  the  Supreme 
Court  of  Wisconsin  in  the  case  of  Bates  v.  Railway  Co.,  60  Wis. 
296;  19  jST.  W.  Rep.  72.     In  an  elaborate  opinion,  in  which   many 
of  the  authorities  cited  by  counsel  in  this  case  are  reviewed,  it  was 
held  that  personal  property  under  the  control  of  a  garnishee,  but 
situated  out  of  the  State  where  suit  is  brought,  cannot  be  reached 
by  the  process  of  garnishment.     In  that  case,  as  in  this,  the  prop- 
erty was  in  actual  transit,  and  out  of  the  State,  when  the  garnish- 
ment notice  was  served.     We  do  not  think  it  necessary  to  do  more 
than  refer  to  that  case,  and  the  authorities   therein  cited.     It  ap- 
pears to  us  in  its  reasoning  to  be  eminently  sound,  and  that  no  other 
conclusion  could  have  been  fairly  reached;  and  the  rule  adopted  has 
peculiar  force  when  applied  to  an  attempt  to   garnish   a  common 
carrier  while  transporting  goods  outside  of  the  State  where  suit  is 
commenced.     As  was  said  by  Chief  Justice  Breese  in  Railroad  Co. 
v.  Cobb,  48  111.  402:  "When  the  property  has  left  the  county,  and 
is  in  transit  to  a  distant  point,  though  on  the  same  line  of  railway, 
it  would  be  unreasonable  to  subject  the  company  to  the  costs,  vexa- 
tion,   and  trouble  of  such  process,  merely  because  it  had  received 
that  to  be  carried  which  the  law  compelled  it  to  receive  and  carry." 
It  will  be  understood  that  we  do  not  determine  the  question  as  to 
the  right  to  garnish  a  carrier  of  property,  where  the  same  is  within 
this  State.  Affirmed. 


8.     REMEDIES   AS   AGAINST   CARRIER. 

a.     Who  may  sue. 

DAVIS   v.    JAMES. 
King's  Bench.     5  Burr.  2680.     1770. 

This  was  an  action  against  a  common  carrier,  for  not  delivering 
goods  sent  by  him ;  and  the  only  question  was,  "  In  whose  name  the 
action  ought  to  have  been  brought." 

The  fact  was  that  Davis  and  Jordan,  the  present  plaintiffs,  were 
manufacturers  of  cloth,  at  Shipton-Mallet.  And  their  declaration 
charged,  that  they  being  possessed  of  cloth,  as  of  their  own  proper 


754  CARRIERS    OF   GOODS. 

goods,  delivered  the  same  to  the  defendant,  being  the  common  car- 
rier, etc.,  and  requested  him  to  deliver  it  safely  and  securely,  for 
them,  to  one  Elizabeth  Bowman  at  the  Three  Nuns,  at  White  Chapel ; 
which  they  undertook  to  do,  for  a  reasonable  price  payable  and  paid 
by  the  said  plaintiffs  to  the  defendant :  but  the  goods  were  lost,  and 
never  delivered.  The  defendant  pleaded  "Xot  guilty ;"  and  the 
plaintiffs  obtained  a  verdict. 

The  defendant's  counsel  (Mr.  Sergeant  Davy,  Mr.  Sergeant  Bur- 
land,  and  Mr.  Hotckins)  moved  for  a  new  trial;  objecting  that  the 
action  ought  to  have  been  brought  in  the  name  of  the  consignee  of  the 
goods,  and  not  in  the  name  of  the  consignors :  for  that  the  consignors 
parted  with  their  property,  upon  their  delivering  the  goods  to  the 
carrier;  and  that  no  property  remained  in  them  after  such  delivery. 
And  they  cited  as  to  the  point  of  property,  the  case  of  Knight  v. 
Hopper,  Tr.  8,  W.  3,  cases  tempjore,  Holt,  Ch.  J.,  pa.  8,  and  the 
case  of  Godfrey  v.  Furzo,  3  Peere  Williams,  185,  and  Lee  and 
others  v.  Prescott  and  some  other  cases. 

Mr.  Sergeant  Glynn  and  Mr.  Jfansfield,  of  counsel  for  the  plain- 
tiffs, answered  that  the  present  question  does  not  turn  upon  the 
strict  property.  The  carrier  has  nothing  to  do  with  the  vesting  of 
the  property :  it  does  not  lie  in  his  mouth  to  say  that  the  consignor 
is  not  the  owner.  He  is  the  owner,  with  respect  to  the  carrier;  who 
has  undertaken  to  him,  and  was  p>a^  by  him.  He  was  therefore 
servant  to  the  consignor,  but  had  no  connection  at  all  with  the 
consignee.  And  many  such  actions  have  been  brought  by  the 
consignor. 

Lord  Mansfield  said,  there  was  neither  law  nor  conscience  in 
the  objection.  The  vesting  of  the  property  may  differ  according  to 
the  circumstances  of  cases;  but  it  does  not  enter  into  the  present 
question.  This  is  an  action  upon  the  agreement  between  the  plain- 
tiffs and  the  carrier.  The  plaintiffs  were  to  pay  him.  Therefore 
the  action  is  properly  brought  by  the  j>ersons  who  agreed  with  him 
and  were  to  pay  him. 

Rule  discharged  unanimously. 


DAWES   v.  PECK. 

King's  Bench.     8  Terra  R.  330.     1799. 

This  was  an  action  on  the  case  by  the  consignor  of  goods  against 
the  defendant,  a  common  carrier,  for  not  safely  carrying,  according 
to  his  undertaking  in  consideration  of  a  certain  hire  and  reward  to 
be  therefore  paid,  two  casks  of  gin  from  London  to  one  Thomas 
Odey  at  Hillmorton  in  Warwickshire  within  the  time  limited  by 
two  excise  permits,  in  consequence  of  which  the  casks  of  gin  became 


REMEDIES   AS   AGAINST   CARRIER.  755 

forfeited  to  the  Crown  and  were  seized.  This  case  came  on  to  be 
tried  at  the  sittings  in  London  after  last  Easter  Term,  when  the 
plaintiff  proved  his  case  by  showing  the  delivery  of  the  casks  to  a 
person  employed  by  the  defendant  at  the  usual  place,  where  they 
were  booked  to  be  sent  by  the  defendant's  wagon  and  the  usual 
price  paid  for  booking  by  the  plaintiff's  servant.  The  casks  were 
directed  to  "Mr.  Odey  Hillmorton,  near  Rugby,  Warwickshire,  by 
Peck's  wagon."  It  appeared  that  they  were  afterwards  sent  by  the 
wagon,  and  were  left  at  the  Crown  Inn  at  West  Haddon,  which 
was  the  nearest  place  to  Hillmorton  in  the  road  which  the  wa 
travelled;  and  where,  after  laying  some  time,  they  were  seized  in 
consequence  of  the  time  mentioned  in  the  permit  for  their  removal 
being  expired.  The  merits  of  the  case  as  between  the  plaintiff  and 
Odey  the  consignee,  or  in  respect  of  the  legality  of  the  seizure,  were 
not  entered  into;  but  the  defendant's  counsel  in  opening  his  case  to 
the  jury  read  a  letter  from  the  plaintiff  to  Odey,  after  the  seizure 
was  known,  in  which  he  said  that  the  liquors  sent  "were  in  quan- 
tity and  prices  exactly  conformable  to  your  (Odey's)  order;  but  by 
what  authority  they  were  ever  left  at  the  Crown  Inn  at  West 
Haddon  remains  for  the  innkeeper  or  the  carrier  to  explain  or 
account  for.  All  I  have  to  observe  is  this,  that  the  goods  having 
been  sent  conformably  to  your  orders  and  by  the  carrier  yon  directed, 
I  shall  certainly  look  to  you  for  their  amount,"  etc.  Upon  reading 
this  letter,  which  was  admitted  to  be  genuine,  Lord  Kenyon  was  of 
opinion  that  the  action  by  the  present  plaintiff  could  not  be  sup- 
ported; for  that  the  legal  right  to  the  goods  after  such  delivery  was 
vested  in  the  consignee,  to  whom  alone  the  carrier  was  answerable, 
if  at  all ;  and  therefore  the  plaintiff  was  nonsuited. 

A  new  trial  was  moved  for  in  Trinity  Term  last,  and  a  rule  nisi 
for  setting  aside  the  nonsuit  was  obtained  which  stood  over  till  this 
term.     And  now 

Ersklne  and.  Raine  showed  cause  against  the  rule.  A  delivery  of 
goods  to  a  carrier  named  by  the  consignee,  as  in  this  case,  is  tanta- 
mount to  a  delivery  to  the  consignee  himself,  and  divests  the  con- 
signor of  the  legal  property  in  them,  though  he  still  retains  an 
equitable  right  of  stopping  them  while  in  transitu  in  case  of  the 
failure  of  the  consignee.  After  such  a  delivery  the  property  in  these 
goods  was  altered  and  the  goods  were  at  the  risk  of  the  consignee; 
and  so  it  was  considered  by  the  plaintiff  himself,  as  appears  by  his 
letter  to  Odey;  consequently  the  plaintiff  can  maintain  no  action  for 
any  loss  or  injury  which  happened  to  them  after  they  became  the 
property  of  another.  In  the  cases  of  Davis  v.  James  [5  Burr.  2680] 
[753]  and  Moore  v.  Wilson  [1  Term  R.  659]  the  ground  of  the 
decisions,  that  the  consignors  might  maintain  the  action,  was  that 
they  had  made  themselves  responsible  to  the  carriers  for  the  price 
of  the  carriage.  In  the  former  of  those  Lord  Mansfield  said  that 
there  was  no  question  in  the  case  as  to  the  vesting  of  the  property; 


756  CAERIERS   OF   GOODS. 

for  the  action  was  founded  on  the  agreement  between  the  carrier 
and  the  plaintiffs  who  were  to  pay  him.  But  there  is  nothing  in 
this  case  from  which  any  property  in  the  plaintiff  can  be  inferred 
whereon  to  found  his  action;  because  his  own  letter  shows  that  he 
had  renounced  all  property  in  the  goods. 

Garrow  and  Yates,  contra.  It  does  not  follow  that  because  the 
consignee  may  maintain  an  action  against  a  carrier  for  the  loss  of 
goods,  the  consignor  may  not  also  have  his  remedy.  The  cases  show 
that  the  action  may  be  maintained  by  either.  The  reason  of  the 
thing  is  more  in  favor  of  the  action  by  the  consignor,  for  there  is 
a  privity  of  contract  between  him  and  the  carrier;  but  there  is  no 
such  privity  between  the  latter  and  the  consignee.  Here,  too,  the 
booking  was  paid  for  by  the  consignor,  which  is  evidence  of  a  con- 
tract between  him  and  the  carrier.  The  carrier  is  ignorant  of  the 
particular  agreement  between  the  consignor  and  the  consignee;  and 
at  all  events  the  consignor  is  liable  to  the  carrier  for  the  price  of 
the  carriage,  if  the  consignee  do  not  accept  the  goods.  Davis  v. 
James,  5  Burr.  2680  [753].  The  liability  of  the  consignor  to  the  car- 
rier is  a  sufficient  ground  to  maintain  this  action.  Both  the  case  in  5 
Burr,  and  that  of  Moore  v.  Wilson  proceeded  on  the  admission  that 
the  legal  property  passed  to  the  vendee  by  the  delivery  to  the  car- 
rier. All  the  cases  of  stopping  in  transitu  show  that  until  a 
delivery  in  fact  to  the  consignee  a  latent  right  to  the  goods  remains 
in  the  vendor  even  as  against  the  vendee;  but  whatever  the  question 
may  be  as  between  those,  it  ought  not  to  be  permitted  to  the  carrier 
to  dispute  the  property  of  the  person  from  whom  he  received  the 
goods. 

Lord  Kenyon,  C.  J.  I  cannot  subscribe  to  one  part  of  the  argu- 
ment urged  on  behalf  of  the  plaintiff;  namely,  that  the  right  of  prop- 
erty on  which  this  action  is  founded  is  to  fluctuate  according  to  the 
choice  of  the  consignor  or  consignee,  and  that  consequently  either 
of  them  may,  at  his  pleasure,  maintain  an  action  against  the  carrier 
for  the  non-delivery  of  the  goods.  In  my  opinion  the  legal  rights 
of  the  parties  must  be  certain,  and  depend  upon  the  contract  between 
them,  and  cannot  fluctuate  according  to  the  inclination  of  either. 
This  question  must  be  governed  by  the  consideration,  in  whom  the 
legal  right  was  vested;  for  he  is  the  person  who  has  sustained  the 
loss,  if  any,  by  the  negligence  of  the  carrier;  and  whoever  has  sus- 
tained the  loss  is  the  proper  party  to  call  for  compensation  from  the 
person  by  whom  he  has  been  injured.  The  facts  are  these :  a  man 
in  Warwickshire  gave  an  order  for  goods  from  London,  which  he 
directed  to  be  sent  by  a  certain  carrier,  and  the  dealer  in  London 
delivered  them,  accordingly,  to  that  carrier  to  be  conveyed  to  the 
vendee.  Upon  this  short  statement  there  can  be  no  doubt  but  that 
after  such  a  delivery  the  vendee  must  stand  to  the  risk.  Then  here 
the  damnum  et  injuria  are  to  him  and  not  to  the  vendor,  the 
plaintiff.     1  do  not  find  that  anything  which  I  have  advanced  is 


REMEDIES   AS    AGAINST    CARRIER.  757 

broken  in  upon  by  the  two  cases  which  have  been  relied  upon  in  the 
argument:  the  distinction  which  is  there  taken  I  fully  adopt.  In 
the  one  case  the  action  brought  by  the  consignor  against  the  carrier 
was  sustained,  because  the  consignor  was  to  be  answerable  for  the 
price  of  the  carriage;  he  stood,  therefore,  in  the  character  of  an 
insurer  to  the  consignee  for  the  safe  arrival  of  the  goods.  And  the 
subsequent  case  of  Moore  v.  Wilson  proceeded  on  the  same  ground. 
It  is  not  disputed  but  that  the  consignee  might  have  maintained  the 
action  in  this  case:  then  if  the  consignee  had  recovered  a  verdict 
against  the  carrier  how  could  such  recovery  by  a  stranger  have  been 
pleaded  in  bar  to  this  action?  And  if  it  could  not,  and  yet  this 
action  could  be  maintained,  the  consequence  would  be  that  the  car- 
rier would  be  liable  to  answer  in  damages  to  both  for  the  same  loss. 
Therefore  common  sense  and  justice  as  well  as  strict  law  are  in 
favor  of  the  objection  made  against  the  plaintiff's  recovering  in  this 
action. 

Grose,  J.  The  plaintiff,  who  was  at  one  time  the  owner  of  these 
goods,  delivered  them  by  the  order  of  Odey  to  the  defendant,  a  com- 
mon carrier,  for  the  purpose  of  having  them  conveyed  to  Odey.  By 
such  delivery  they  became  the  property  of  Odey;  he  was  liable  to 
be  sued  for  the  value  of  them;  and  it  is  admitted  that  he  might 
have  maintained  an  action  for  any  loss  or  injury  happening  to  them 
by  the  default  of  the  defendant.  It  is  true  that,  while  the  goods 
remained  in  the  hands  of  the  carrier,  there  was  a  latent  right  in  the 
plaintiff  to  stop  them  in  transitu:  but  that  is  in  its  nature  an  equit- 
able right,  though  now  grown  into  law;  but  the  legal  right  was  by 
the  delivery  to  the  carrier  vested  in  the  consignee,  by  whose  order 
they  were  so  delivered.  But  cases  have  been  cited,  wherein  it  was 
holden  that  the  consignor  might  maintain  the  action:  on  looking 
into  them,  however,  it  appears  that  they  proceeded  on  the  ground  of 
special  agreements  between  the  respective  consignors  and  carriers. 
Now  here  there  was  no  evidence  of  any  such  agreement;  and  the 
letter  from  the  plaintiff  to  Odey  excludes  the  idea  of  any  such  agree- 
ment, for  the  former  therein  insists  that  the  property  was  vested  in 
the  consignee,  whom  he  considered  at  all  events  answerable  to  him 
for  the  value.  Then,  after  it  appears  that  the  plaintiff  had  renounced 
all  right  and  property  in  the  goods  at  the  time,  upon  what  ground 
can  he  claim  an  indemnity  for  the  loss  of  what  belonged  to  another? 
I  am  therefore  of  opinion  that  the  action  against  the  carrier  ought 
to  have  been  brought  by  the  consignee  of  the  goods,  in  whom  the 
property  was  vested  by  the  delivery  to  the  carrier  according  to  his 
own  order. 

Lawrence,  J.  Some  stress  has  been  laid  on  the  circumstance  of 
the  consignor  having  paid  the  carrier  for  booking  the  goods,  as  evi- 
dence of  a  special  contract  between  them,  in  order  to  bring  this  case 
within  those  which  were  cited  at  the  bar;  but  that  circumstance 
would  not  give  a  right  of  action  against   the  carrier   to   recover 


7,-)S  CARRIERS   OF   GOODS. 

damage  for  the  loss  of  the  goods,  if  it  appeared  that  they  were  the 
property  of  another  person.  And  here  it  is  admitted  that  the  action 
might  have  been  brought  by  the  consignee  in  right  of  his  property 
in  them.  It  is  true  that  in  some  special  cases  a  man  may  make 
himself  liable  to  either  of  two  persons  on  account  of  the  same 
interest:  but  that  is  not  usual;  and  it  is  more  consonant  to  the 
general  principle  of  law  to  refer  all  transactions  of  agents  to  the 
principal  on  whose  account  they  were  entered  into.  Now  here  I 
consider  that  what  was  done  by  the  consignor  in  respect  of  the 
booking  was  as  the  agent  of  the  consignee,  at  whose  risk  the  goods 
were  sent.  And,  generally  speaking,  the  carrier  knows  nothing  of 
the  consignor,  but  only  of  the  person  for  whom  the  goods  are 
directed,  and  to  whom  he  looks  for  the  price  of  the  carriage  upon 
delivery. 

Le  Blanc,  J.  It  is  admitted  that  the  legal  property  of  the  goods 
was  by  the  delivery  to  the  carrier  vested  in  the  consignee,  and  that 
he  might  maintain  the  action:  and  upon  examination  of  the  cases 
referred  to  in  support  of  the  consignor's  right  of  action,  it  appears 
that  they  proceeded  upon  the  ground  of  a  special  agreement  between 
the  parties  that  the  consignor  was  to  pay  for  the  carriage  of  the 
goods.     But  as  there  was  no  evidence  of  any  such  agreement  in  this 

case,  I  think  that  the  nonsuit  was  proper. 

Rule  discharged. 


FINN  v.    WESTERN   R.    CORP. 
112  Mass.  524.     1S73. 

Contract  against  the  defendant  corporation,  as  a  common  carrier, 
for  its  failure  to  forward  and  deliver  shingles  to  Joseph  S.  Clark, 
at  Westfield.  Writ  dated  June  28,  1867.  The  declaration  alleged 
the  delivery  to  the  defendant,  its  neglect  to  forward,  and  the  destruc- 
tion of  the  shingles  while  in  its  possession. 

At  the  second  trial  in  the  Superior  Court,  before  Putnam,  J., 
after  the  decision  reported  in  102  Mass.  283,  the  plaintiff  testified 
that  May  9,  1861,  he  received  at  Olean,  in  the  State  of  New  York, 
a  written  order  for  a  quantity  of  shingles,  from  J.  S.  Clark  of 
Southampton,  Massachusetts,  to  be  forwarded  to  him  at  Southamp- 
ton; that  he  filled  the  order  by  shipping  the  shingles  ordered  on 
board  the  canal-boat  "M.  White,"  at  Olean;  that  when  he  shipped 
the  shingles,  he  filled  in  triplicate  the  following  shipping  bill: 
"Olean,  May  13,  1861.  Shipped  for  account  of  M.  W.  Finn,  on 
board  canal-boat  '  M.  White'  of  Niagara,  N.  Y.,  whereof  James 
Smith  is  Master  for  the  present  trip,  as  follows:  100  bunches,  r><> 
M.  of  18  in.,  Sorted  Shaved  Shingles,  marked  J.  S.  C.  —  Extra. 
150  bunches,  To  M.  of  18  in.,  No.  1  Shaved  Shingles,  marked  J.  S.  C. 


REMEDIES    AS    A.GA]  IS!    CAERIEE-  759 

360  bunches,  90  M.  of  18  in.,  Extra  Sawed  Shingles,  marked  J.  S.  C. 
—  Extra.     In    good    order,    to    be    delivered    in    like    good   order, 
without  delay,   to  the  Great  Western    Railroad  Company  or  thi 
Assignees,  at  Greenbush,  N.  Y.     Consignee  to   pay   freighl    on  tl 
delivery  at  the  rate  of  seventy-five  cents  per  M.  Eor  Shaved  Shingh 
and  sixty-two  and  one-half  cents  per  M.  for   the   Sawed  Shingl 
$2.50  for  towing  less  amount  advanced   Master,  one  hundred  and 
fifty-two  and  fifty-one  hundredths  dollars,  M.  W.  Finn,  Consignor. 
James  Smith,  Master.      .$  152. 50;"  that  one  of  the  hills  was  sent  by 
mail  to  Clark,  one  was  given  to  the  master  of  the  canal-boat,  and 
one  was  retained  by  him;  that  the  shingles  were  put  up  in  bunches 
and   were  branded  upon  the  flat  surface  of  each  bunch;    that  the 
brand  upon  some  of  the  bunches  was  ".).  S.  C."  and  upon  the  rest 
was  "J.  S.  C,  Extra;"  that  upon  about  one  bunch  in  six,  he  wrote 
with  a  lumberman's  pencil,  in  letters  plainly  legible  at  a  distance 
of  twenty  feet,  the  words  "J.  S.  Clark,  Southampton,  Mass.;"  that 
the  shingles  were  forwarded  by  canal  from  Olean  to  Greenbush,  to 
be  forwarded  from  thence  by  the  Western  Railroad  to  Clark;  that 
this  was  the  usual  mode  of  conveyance ;  that  between  the  years  1 858 
and  1861  he  had  sent  upon  similar  orders  6  or  8  lots  of  shingles  to 
Clark,  to  Westfield  or  Southampton,  by  the  same  routes,  marked  in 
the  same  manner  as  the  lot  in  question ;  that  on  June  6,  1861,  he 
received  from  the  agent  of   the  Western  Railroad  a  letter  stating 
that  the  boat  "M.  White"  had  arrived  at  Greenbush  with  shingles, 
and  asking  for  the  name  of  the  consignee ;  that  upon  the  same  day 
he  wrote  a  letter  in  reply,  in  the  post-office  at  Olean,  in  the  presence 
of  the  postmaster,  stating  that  the  shingles  were  for  J.  S.  Clark,  of 
Southampton,  Mass.,  and  requesting  them  to  be  forwarded  to  him 
at  once;  that  the  letter  was  addressed  to  "The  Agent  of  the  West- 
ern Railroad  Company,   Greenbush,  N.  Y. ; "  that  he  delivered  the 
letter  to  the  postmaster  personally,  in  the  post-office  at  Olean ;  that 
by  the  ordinary  course  of  mail  the  letter  would  arrive  at  Greenbush 
on  the  next  day;  that  at  the  time  of  shipping  the  shingles,  he  drew 
upon  Clark  for  the  price  of  them;  that  the  draft  was  duly  accepted, 
and  paid  at  its  maturity,  but  whether  it  was  paid  before  the  fire  or 
not,  he  did  not  know. 

On  his  cross-examination,  the  plaintiff  stated  that  with  each  of 
the  prior  lots  of  shingles,  a  shipping  bill  was  given  to  the  master 
of  the  boat,  by  which  they  were  shipped,  in  which  J.  S.  Clark. 
Southampton  or  Westfield,  was  named  as  the  person  to  whom  the 
goods  were  sent,  and  a  like  bill  was  sent  to  Clark. 

Benjamin  Barker,  a  witness  called  by  the  plaintiff,  testified  that 
he  helped  the  plaintiff  mark  the  shingles  as  they  were  loaded  on  the 
canal-boat,  at  Olean,  and  that  he  marked,  with  a  lumberman's  pen- 
cil, on  one  bunch  in  every  six  or  eight,  the  name  and  address,  "J.  S. 
Clark,  Southampton,  Mass.,"  in  letters  that  could  be  plainly  read 
at  a  distance  of  twenty  or  thirty  feet. 


760  CARRIERS   OF   GOODS. 

The  deposition  of  the  postmaster  at  Olean  was  read  in  evidence, 
who  testified  to  the  mailing  of  a  letter  by  Finn,  June  6,  1861, 
addressed  to  the  agent  of  the  Western  Railroad,  but  that  it  was 
directed  to  East  Albany,  1ST.  Y.,  and  that  his  register  of  that  day 
showed  one  letter  sent  to  East  Albany,  N.  Y.,  and  that  letter  was 
mailed  by  the  postmaster  personally,  and  by  him  sent  out  of  the 
office  by  the  eastern  mail. 

It  appeared  that  the  proper  address  for  the  defendant's  agent  was 
either  Greenbush  or  Albany ;  that  East  Albany  was  a  village  in  the 
town  of  Greenbush,  and  the  western  terminus  of  the  defendant's 
road,  and  that  Greenbush  was  sometimes  known  as  East  Albany, 
and  that  letters  addressed  to  East  Albany  had  at  different  times 
been  received  at  and  delivered  from  the  post-office  at  Greenbush, 
and  that  letters  addressed  to  Green,  the  defendant's  agent  at  East 
Albany,  had  been  frequently  received  by  him  from  the  post-office  at 
Greenbush. 

The  facts  as  to  the  shipment  of  the  prior  lots  of  shingles  were 
also  testified  to  by  Clark,  substantially  as  by  the  plaintiff,  though 
he  did  not  testify  that  he  received  shipping  bills  with  them. 

Asa  C.  Parker,  the  defendant's  station  agent  at  Westfield,  tes- 
tified that  he  knew  of  the  receipt  of  the  prior  lots  over  the  road, 
but  that  no  bills  of  lading  or  any  shipping  bills  accompanied  any 
of  these  that  he  ever  saw. 

Thomas  L.  Green  testified  that  he  was  agent  for  the  defendant  at 
Greenbush  in  1861,  and  had  been  for  some  time  prior  to  1858,  and 
was  still  its  agent  there;  that  no  one  but  himself  and  George  H. 
Penfield  opened  letters  addressed  to  him  or  to  the  agent  of  the 
defendant  at  Greenbush  or  Albany,  and  that  he  never  received  or 
saw  the  letter  of  June  6,  testified  to  having  been  sent  by  the  plain- 
tiff, and  that  up  to  the  time  of  the  fire  he  did  not  know  the  name 
of  the  consignee;  that  when  the  shingles  in  controversy  arrived  at 
Greenbush,  the  master  of  the  canal-boat  exhibited  to  him  the  ship- 
ping bill  before  mentioned,  and  there  being  no  person  named  therein 
to  whom  the  shingles  were  to  be  delivered,  he  declined  to  receive 
them  until,  at  the  solicitation  of  the  master,  he  agreed  to  take  them 
upon  storage,  and  that  he  wrote  the  letter  mentioned  by  the  plaintiff 
as  having  been  received  by  him,  before  he  agreed  to  take  them  on 
storage,  and  as  soon  as  he  saw  the  way-bill ;  that  a  day  or  two  after- 
wards he  examined  the  shingles  and  turned  over  one-third  of  the 
bundles,  so  that  he  could  see  all  sides  of  them,  in  order  to  see  if 
there  was  a  name  of  any  consignee,  or  any  direction  upon  them, 
and  found  no  mark  or  direction  upon  them  except  "J.  S.  C,"  and 
"J.  S.  C.  Extra;  "  that  he  had  no  recollection  of  having  seen  either 
of  the  prior  lots  testified  of  by  Einn  and  by  Clark,  that  he  had  no 
recollection  of  any  of  the  prior  consignments,  and  only  knew  from 
the  books  that  they  were  forwarded;  that  it  at  that  time  was,  and 
still  is,  a  custom  of  the  defendant  corporation  that  all  freight  com- 


REMEDIES    AS   AGAINST    CARRIER.  701 

ing  to  their  road  by  way  of  the  Erie  Canal,  as  these  shingles  did, 
should  be  governed  by  the  directions  contained  in  the  shipping  bill 
accompanying  them,  and  not  by  the  marks  upon  the  goods. 

On  cross-examination,  he  admitted  that  he  received  before  the  fire 
two  letters  from  Clark,  and  one  from  Parker,  the  station  agent  at 
Westfield,  in  relation  to  the  shingles  in  controversy. 

The  plaintiff  and  William  G.  Bates  both  testified  that  at  two 
former  trials  of  the  case  of  Finn  v.  Clark,  in  which  the  same  facts 
were  in  issue,  Green  did  not  testify  as  to  his  receiving  the  shingles 
on  storage,  and  did  testify  that  he  had  seen  the  name  of  J.  S. 
Clark,  Southampton,  in  full,  on  some  of  the  bunches  of  the  former 
consignments. 

The  foregoing  is  all  the  material  evidence  in  the  case. 

The  defendant  requested  the  court  to  rule  that  upon  the  whole 
evidence  in  the  case  the  plaintiff  was  not  entitled  to  recover. 

That  if  the  shingles  were  sent  in  pursuance  of  an  order  from  Clark 
in  Southampton,  to  Finn  in  Olean,  to  be  forwarded  by  the  usual 
conveyances  to  him  in  Southampton,  and  the  shingles  were  so  for- 
warded with  proper  directions,  so  that  it  was  the  duty  of  the  defend- 
ant upon  the  receipt  thereof  to  forward  them,  then  the  shingles 
belonged  to  Clark,  and  the  plaintiff  could  not  recover. 

That  if  the  shingles  were  ordered  of  Finn  at  Olean,  by  Clark,  to 
be  forwarded  to  him  at  Southampton,  and  were  forwarded  by  the 
usual  means  of  conveyance,  properly  directed  to  Clark,  then  the 
shingles  belonged  to  Clark,  and  the  plaintiff  could  not  recover. 

These  rulings  the  court  refused  to  make  in  the  form  requested, 
but  instructed  the  jury  at  length  as  to  the  duties  and  liabilities  of 
common  carriers,  and  their  obligations  in  forwarding  freight,  as 
applicable  to  the  shingles  in  question,  which  instructions  were  not 
objected  to  by  either  party,  and  further  instructed  them  that  if  the 
defendant's  agent  knew,  by  reason  of  the  receipt  of  the  letter  alleged 
to  have  been  sent  to  him,  or  by  reason  of  his  having  seen  the  name 
and  address  of  Clark  upon  the  bundles,  that  the  shingles  belonged  to 
and  were  intended  for  Clark,  it  was  the  duty  of  the  defendant  to 
forward  them  within  a  reasonable  time  thereafter,  and  that  the 
plaintiff  could  not  recover  unless  he  satisfied  the  jury  that  the 
defendant's  agent  received  the  letter  of  June  6,  or  saw  the  full 
name  and  address  of  Clark  upon  the  bunches  of  shingles,  and  that 
the  jury  might  consider  the  fact  of  the  former  shipment  from  Finn 
to  Clark  as  evidence  upon  the  question  whether  or  not  the  agent 
knew  for  whom  the  shingles  were  intended,  provided  they  were 
satisfied  that  in  such  previous  instances  the  freight  was  not  accom- 
panied with  proper  way-bills,  disclosing  its  destination. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  found,  especially, 
upon  the  question  submitted  to  them  by  the  court,  that  Green  did 
see  the  full  name  and  address  of  Clark  upon  the  bunches  of  shingles. 
The  defendant  excepted. 


762  CARRIERS    OF    GOODS. 

Wells,  J.  The  only  question  argued  by  the  defendant,  upon 
these  exceptions,  is  whether  the  action  for  loss  of  the  property  can 
be  maintained  by  and  in  behalf  of  Finn.  It  is  contended  that  if 
there  was  a  delivery,  with  proper  directions  for  the  transportation, 
so  as  to  charge  the  defendant  with  responsibility  as  carrier,  then  the 
title  in  the  property  had  passed  to  Clark,  the  consignee;  and  the 
right  of  action  for  injury  to  it  was  in  him  alone.  On  the  other 
hand,  if  proper  directions  for  its  transportation  had  not  been  given, 
then  the  defendant  is  not  liable  at  all  as  carrier,  according  to  the 
former  decision  in  102  Mass.  283.  It  is  not  contended  that  the 
defendant  is  liable  as  warehouseman.  In  either  aspect  of  the  case, 
upon  this  view  of  the  law,  no  recovery  could  be  had  by  Finn. 

The  jury  having  found  that  the  defendant  became  responsible  as 
carrier,  the  case  is  now  presented  only  in  that  aspect.  We  think 
also  that  the  facts,  as  disclosed  by  the  present  bill  of  exceptions, 
show  that  the  title  to  the  property  had  passed  to  Clark  before  the 
loss  occurred;  leaving  in  Finn  at  most  only  a  right  of  stoppage  in 
transitu. 

The  liabilities  of  a  common  carrier  of  goods  are  various;  and 
when  not  controlled  by  express  contract,  they  spring  from  his  legal 
obligations,  according  to  the  relations  he  may  sustain  to  the  par- 
ties, either  as  employers,  or  as  owners  of  the  property.  Prima  facie, 
his  contract  of  service  is  with  the  party  from  whom,  directly  or 
indirectly,  he  receives  the  goods  for  carriage;  that  is,  with  the 
consignor.  His  obligation  to  carry  safely,  and  deliver  to  the  con- 
signees, subjects  him  to  liabilities  for  any  failure  therein,  which 
may  be  enforced  by  the  consignees  or  by  the  real  owners  of  the 
property,  by  appropriate  actions  in  their  own  names,  independently 
of  the  original  contract  by  which  the  service  was  undertaken.  Such 
remedies  are  not  exclusive  of  the  right  of  the  party  sending  the 
goods,  to  have  his  action  upon  the  contract  implied  from  the  delivery 
and  receipt  of  them  for  carriage.  This,  in  effect,  we  understand  to 
be  the  result  of  the  elaborate  discussion  of  the  principles  applicable 
to  the  case  in  Blanchard  v.  Page,  8  Gray,  281.  That  decision  may 
not  be  precisely  in  point,  as  an  adjudication,  to  govern  the  case  now 
before  us ;  for  the  reason  that  there  was  a  written  receipt  or  bill  of 
lading  for  carriage  by  water,  and  the  plaintiffs  were  acting  in  the 
transaction  as  agents  for  the  owners  of  the  goods;  yet  the  general 
principles  evolved  do  apply,  and  are  satisfactory  to  us  for  the  deter- 
mination of  the  present  case. 

When  carrying  goods  from  seller  to  purchaser,  if  there  is  nothing 
in  the  relations  of  the  several  parties  except  what  arises  from  the 
fact  that  the  seller  commits  the  goods  to  the  carrier  as  the  ordinary 
and  convenient  mode  of  transmission  and  delivery  in  execution  of 
the  order  or  agreement  of  sale,  the  employment  is  by  the  seller,  the 
contract  of  service  is  with  him,  and  actions  based  upon  that  contract 
may,  if  they  must  not  necessarily,  be  in  the  name  of  the  consignor. 


REMEDIES    AS    AGAINST    CARRIER.  7G3 

If,  however,  the  purchaser  designates  the  carrier,  making  him  his 
agent  to  receive  and  transmit  the  goods;  or  if  the  sale  is  compl< ite 
before  delivery  to  the  carrier,  and  the  seller  is  made  the  agent  of 
the  purchaser  in  respect  to  the  forwarding  of  them, — a  different 
implication  would  arise,  and  the  contract  of  service  might  be  held 
to  be  with  the  purchaser.  This  distinction,  we  think,  must  deter- 
mine whether  the  right  of  action  upon  the  contract  of  service, 
implied  from  the  delivery  and  receipt  of  goods  for  carriage,  is  in 
the  consignor  or  in  the  consignee.  In  the  case  of  Blanchard  v. 
Page  the  action  was  maintained  in  the  name  of  the  consignors, 
who  were  merely  the  agents  of  the  owners  in  forwarding  the  goods. 
But  that  was  explicitly  on  the  ground  of  the  express  contract  with 
them,  embodied  in  the  receipt  or  bill  of  lading. 

As  already  suggested,  the  consignee,  by  virtue  of  his  right  of  pos- 
session, or  the  purchaser,  by  virtue  of  his  right  of  property,  may 
have  an  action  against  the  carrier  for  the  loss,  injury,  or  detention 
of  the  goods,  though  not  party  to  the  original  contract.  Such  action 
is  in  tort  for  the  injury  resulting  from  a  breach  of  duty  imposed  by 
law  upon  the  carrier;  or,  in  the  language  of  the  early  cases,  upon 
"  the  custom  of  the  realm." 

There  are  many  cases,  both  in  England  and  in  the  United  States, 
in  which  the  doctrine  appears  to  be  maintained  that,  except  when 
there  is  a  special  contract,  a  remedy  for  injury  resulting  from  breach 
of  duty  by  a  carrier  can  be  had  only  in  the  name  and  behalf  of  some 
one  having  an  interest  in  the  property  at  the  time  of  the  breach, 
which  is  injuriously  affected  thereby. 

The  rule  might  well  be  conceded,  if  the  exceptions  were  not  too 
restricted.  It  will  hold  good  in  actions  of  tort,  because  they  are 
founded  upon  injury  to  some  interest  or  right  of  the  plaintiff.  And 
the  cases  which  support  this  view  are  mostly,  if  not  altogether, 
actions  of  tort.  This  is  true  of  the  leading  early  cases  from  which 
the  doctrine  is  mainly  derived :  Dawes  v.  Peck,  8  T.  P.  330  [754]  ; 
also  of  Griffith  v.  Ingledew,  6  S.  &  R.  429;  Green  v.  Clark,  5  Denio, 
497,  13  Barb.  57,  and  2  Kernan,  343 ;  and  does  not  appear  from  the 
report  to  be  otherwise  in  Krulder  v.  Ellison,  47  N.  Y.  36  [766].  In 
discussing  the  grounds  of  decision  it  seems  fco  have  been  assumed  by 
various  judges,  as  we  think,  erroneously,  that  the  right  of  recovery 
necessarily  involved  the  question  with  whom  the  original  contracl 
of  service  was  made.  And  the  effort  to  make  the  inference  of  law 
as  to  that  contract  conform  to  what  was  deemed  the  proper  decision 
as  to  the  right  to  recover  for  the  injury,  has  led  to  some  statements 
of  legal  inference  which  appear  to  us  to  be  somewhat  overstrained. 
Thus  in  Dawes  v.  Peck  it  is  said  by  Lawrence,  J.,  that,  in  the  pay- 
ment of  freight  by  the  consignor,  he  is  to  be  regarded  as  the  agent 
of  the  consignee;  that  the  carrier  generally  knows  nothing  of  the 
consignor,  but  looks  to  the  person  to  whom  the  goods  are  directed. 
In  Freeman  v.  Birch,  1  Nev.  &  Man.  420,  it  is  said  by  Parke,  J., 


764  CAKKIERS    OF    GOODS. 

"  In  ordinary  cases  the  vendor  employs  the  carrier  as  the  agent  of 
the  vendee."  In  Green  v.  Clark,  13  Barb.  57,  it  is  said  by  Allen,  J., 
that  when  the  consignee  is  the  legal  owner,  or  the  property  vests  in 
hirn  by  the  delivery  to  the  carrier  "  it  is  an  inference  of  law,  and 
not  a  presumption  of  fact,  that  the  contract  for  the  safe  carriage  is 
between  the  carrier  and  consignee,  and  consequently  the  latter  has 
the  legal  right  of  action."  But  in  the  same  case  in  the  Court  of 
Appeals,  2  Kernan,  343,  it  was  regarded  as  immaterial  by  whom  the 
contract  was  made,  and  whether  the  plaintiff  was  consignor  or  con- 
signee, for  the  purpose  of  an  action  of  case  for  negligence  by  which 
his  property  was  injured. 

In  Griffith  v.  Ingledew,  the  dissenting  opinion  of  Gibson,  J., 
assuming  that  the  contract  of  carriage  formed  the  basis  of  the 
action,  combats  with  great  force  of  reasoning  the  proposition  that  a 
contract  with  the  consignee  is  the  legal  result  of  the  receipt  of  goods 
by  a  carrier,  when  no  privity  with  or  authority  from  the  consignee 
is  shown,  and  none  professed  by  the  consignor  at  the  time,  unless 
the  direction  of  the  goods  to  the  address  of  the  consignee  can  be 
taken  to  be  such  profession. 

The  whole  force  and  effect  of  the  reasoning  in  Blanchard  v.  Page 
is  in  the  same  direction.  The  ordinary  bill  of  lading  or  receipt, 
given  to  the  consignor  by  the  carrier,  simply  expresses  what  is  the 
real  significance  of  the  transaction  independently  of  the  writing. 
There  is  no  reason  for  giving  a  different  interpretation  to,  or  draw- 
ing a  different  inference  from,  the  acts  of  parties,  because  of  a 
writing  which  is  nothing  but  a  voucher  taken  to  preserve  the 
evidence  of  those  acts. 

Whatever  remedy  is  sought  in  contract  must  necessarily  be  sought 
in  the  name  of  the  party  with  whom  the  contract  is  entered  into, 
whether  it  be  special,  that  is,  express,  or  implied.  The  question 
then  is  simply  this:  In  the  absence  of  an  express  agreement,  with 
whom  is  the  carrier's  contract  of  employment  and  service  in  respect 
of  goods  delivered  to  him  by  the  seller  to  convey  to  the  purchaser, 
when  there  is  no  privity  or  relation  of  agency  between  the  carrier 
and  the  purchaser  save  that  which  springs  from  possession  of  the 
goods ,  and  the  seller  has  no  authority  to  make  a  contract  for  the 
purchaser  except  what  is  to  be  implied  from  the  agreement  of 
purchase  or  the  order  for  the  goods? 

The  law  imposes  upon  the  carrier  the  duty  to  transport  the  goods, 
allows  him  a  reasonable  compensation,  and  gives  him  a  lien  upon 
the  goods  for  security  of  its  payment.  It  also  implies  a  promise 
on  the  one  part  to  carry  and  deliver  the  goods  safely,  and,  on  the 
other,  to  pay  the  reasonable  compensation.  These  two  promises 
form  the  contract.  Each  is  the  counterpart  and  the  consideration 
of  the  other.  If  the  contract  of  carriage  is  with  the  consignee,  the 
reciprocal  promise  to  pay  the  freight  must  be  his  also.  Against  this 
inference  are  the  considerations  that  the  seller  is  acting  in  his  own 


REMEDIES    AS    AGAINST    CABEIBE.  765 

behalf  in  making  the  delivery,  and  the  goods  remain  his  property 
until  the  contract  with  the  carrier  takes  effect.     The  title  of  the 
purchaser  does  not  exist  until  that  contract  is  made.     It  follows  as 
a  result.     The  carrier   is   not  agent  for  either  party,  but  an  inter- 
mediate, independent  principal.     If  made  an  agent  of  the  consignee, 
his  receipt  of  the  goods  cuts  off  the  right  of  stoppage  in  transitu  on 
the  one  hand,  and  satisfies  the  Statute  of  Frauds  on  the  other.     He 
has  a  right  to  look  for  his  compensation  to  the  party  who  employs 
him.  unless  satisfied  from  his  lien.     The  fact  that,  as  between  seller 
and  purchaser,  the  purchaser  must  ordinarily  pay  the   expenses  of 
transportation  as  a  part  of  the  cost  of  the  goods,  does  not  affect  the 
relations  of  contract  between  the  carrier  and  either  party.     We  dis- 
cover nothing  in  the  nature  of  the  transaction,  and  we  doubt  if  there 
is    anything   in  the   practice    or    understanding  of   the  community 
which  will  justify  the   inference   that  one  to  whom  goods  are  sent 
by  carrier,  without  direction  or   authority  from   him,  other  than  an 
agreement  of  purchase  or  consignment,  is  the  party  who  employed 
the  carrier  and  is  bound  to  pay  him ;  unless  he  assumes  such  liability 
by  receiving  the  goods  subject  to  the  charge. 

The  contract  is  made  when  the  goods  are  received  by  the  carrier. 
If  it  is  then  the  contract  of  the  consignee,  it  will  not  cease  to  be  so, 
and  become  the  contract  of  the  consignor,  by  reason  of  subsequent 
events.  Suppose,  then,  the  seller  exercises  his  right  of  stoppage 
in  transitu.  Is  the  purchaser  still  liable  to  the  carrier  for  the 
unpaid  freight  ?  Suppose  the  contract  of  sale  to  be  without  writing 
and  within  the  Statute  of  Frauds.  The  contract  of  the  carrier  is 
not  within  the  statute,  and  the  authority  to  the  seller  to  make 
such  contract  in  behalf  of  the  purchaser  need  not  be  in  writing. 
Is  the  carrier  to  look  to  the  purchaser  or  to  the  seller  for  the 
freight?  Or  does  it  depend  upon  the  contingency  whether  the  con- 
tract of  sale  is  affirmed  or  avoided?  And  if  affirmed,  and  the  carrier 
should  deliver  the  goods  without  insisting  on  his  lien,  of  whom 
must  he  collect  it?  The  authorities  hold,  when  the  agreement  of 
sale  is  within  the  Statute  of  Frauds,  that  the  contract  of  the  carrier 
is  with  the  consignor.  Coombs  y.  Bristol  &  Exeter  Kailway  Co.,  3 
H.  &  X.  510;  Coats  v.  Chaplin,  3  Q.  B.  483. 

We  do  not  think  the  carrier's  contract  and  right  to  recover  his 
freight  can  be  made  to  depend  upon  what  may  prove  to  be  the  legal 
effect  of  the  negotiations  between  consignor  and  consignee  upon  the 
title  to  the  property  which  is  the  subject  of  transportation.  His 
contract  must  arise  from  the  circumstances  of  his  employment.  He 
has  a  right  to  look  for  his  compensation  to  the  party  who  required 
him  to  perform  the  service  by  causing  the  goods  to  be  delivered  to 
him  for  transportation.  And  that  party,  unless  he  is  the  mere 
agent  of  some  other,  may  enforce  the  contract,  and  sue  for  its  breach 
by  the  carrier. 

One  who  forwards  goods  in  execution  of  an  order  or  agreement 


766  CARRIERS    OF   GOODS. 

lor  sale  is  not  a  mere  agent  of  the  purchaser  in  so  doing.  He  ia 
acting  in  his  own  interest  and  behalf,  and  his  dealings  with  the 
carrier  are  in  his  own  right  and  upon  his  own  responsibility,  unless 
he  has  some  special  authority  or  directions  from  the  purchaser,  upon 
which  he  acts. 

The  plaintiff  in  this  case  is  therefore  entitled  to  maintain  his 
action  upon  the  contract;  and  we  think  there  is  no  sufficient  reason 
shown  to  prevent  his  recovering  the  full  value  of  the  property 
destroyed.  If  Clark  was  the  owner  at  the  time,  and  his  interest  has 
been  in  no  way  satisfied  or  discharged,  the  plaintiff  will  hold  the 
proceeds  recovered  in  trust  for  his  indemnity.  Clark  might  have 
prosecuted  an  action  of  tort  in  his  own  name,  and  recovered  the 
value  of  his  property  lost ;  in  which  event  the  damages  in  Finn's  suit 
would  have  been  nominal,  or  reduced  to  whatever  amount  of  actual 
loss  he  suffered.  But  it  is  not  pretended  that  Clark  has  ever  brought 
any  suit  or  made  &ny  claim  upon  the  defendant,  although  knowing 
of  the  pendency  of  this  suit,  and  having  testified  as  a  witness  in  the 
same ;  and  all  claim  by  him  is  long  since  barred.  It  is  to  be  pre- 
sumed that  he  acquiesces  in  the  recovery  by  Finn.  If  there  were 
any  doubt  upon  this  point,  we  might  order  a  new  trial  upon  the 
question  of  damages  only.  As  there  is  none,  the  judgment  must 
be  upon  the  verdict. 

Exceptions  overruled. 


KRULDER  v.    ELLISON. 
47  N.  Y.  36.     1871. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  second  judicial  department,  affirming  a  judgment  in 
favor  of  plaintiff  entered  upon  a  verdict. 

This  action  is  brought  to  recover  the  value  of  a  barrel  of  spirits 
shellac  delivered  to  defendants,  who  were  common  carriers  upon  the 
canal,  consigned  to  Newell  &  Turpin  of  Rochester,  and  alleged  to 
have  been  lost  by  the  defendants.  The  shellac  was  sent  by  a  boat 
of  defendants  pursuant  to  the  following  order:  — 

"  Send  us,    via   canal,  one    barrel   imitation  shellac,  such  as   you  sent  us 

last. 

■  .Newell  &  Turpin,  Rochester." 

Upon  the  shipment,  plaintiff  sent  a  bill  of  sale  to  the  consignees. 
When  the  barrel  arrived  at  Rochester  it  was  empty,  and  was  re- 
shipped  to  the  plaintiff  and  received  by  him.  Defendants'  counsel 
asked  the  court  to  charge,  that  if  plaintiff  sold  the  barrel  of  varnish 
to  Newell  &  Turpin  to  be  delivered  to  them  upon  defendants'  boat, 


REMEDIES   AS   AGAINST   CARRIER.  707 

upon  such  delivery  the  title  passed  to  Newell  &  Turpin,  and  the 
plaintiff  could  not  recover.  The  court  declined  so  to  charge,  and 
defendants  excepted. 

Peckham,  J.  Had  the  plaintiff,  the  vendor  of  the  goods,  the 
right  to  maintain  an  action  for  their  loss?  Here  the  evidence  shows 
that  Newell  &  Turpin,  of  Rochester,  had  ordered  the  goods  from 
plaintiff,  of  New  York  City,  to  be  sent  to  them  "via  canal,  such  as 
you  sent  last."  Plaintiff  sent  them  a  bill  by  mail  of  the  purchase, 
and  shipped  the  goods  -via  canal,"  by  defendant's  boat.  Plaintiff 
also  remitted  to  the  purchasers  a  bill  of  sale  of  the  goods. 

The  presumption  of  law  is,  that  the  consignee  is  the  owner  of  the 
goods  in  the  absence  of  any  evidence  on  the  subject,  and  is  the  proper 
party  to  sue,  for  their  injury  or  loss.  Sweet  v.  Barney,  23  N.  Y. 
335  [668];  Price  v.  Powell,  3  Comst.  322;  Everett  v.  Saltus,  15 
Wend.  474;  Ang.  on  Carriers,  §  497,  and  cases  cited. 

There  have  been  decisions  qualifying  this  rule  as  to  the  proper 
party  to  sue,  some  holding  that  an  action  might  be  maintained  by 
the  consignor  where  he  had  made  a  special  contract  for  the  trans- 
portation. 

In  Moore  v.  Wilson,  1  Tr.  R.  659,  an  action  was  sustained  by  the 
consignor  against  a  carrier,  where  it  appeared  that  the  consignee  had 
agreed  with  the  plaintiff  to  pay  for  the  transportation,  Puller,  J., 
holding  that  the  agreement  was  between  the  "  consignor  and  the 
carrier,  the  former  of  whom  was,  by  law,  liable."  One  case  only  is 
referred  to;  this  was  in  1787,  in  a  note,  1  Atk.  248,  where  the  Lord 
Chancellor  declares  the  rule  to  be  the  other  way;  and  that  such  an 
action  would  not  lie. 

In  Joseph  v.  Knox,  3  Camp.  320,  where  goods  had  been  shipped 
by  plaintiff,  an  agent  of  the  owner,  who  resided  abroad,  to  be  for- 
warded to  a  given  place,  and  the  freight  paid  by  the  agent  and  con- 
signor, a  recovery  was  allowed  by  Lord  Ellenborough,  at  nisi  prius, 
on  the  ground  of  the  special  contract.  This  in  1812.  So  in  Davis 
v.  James,  5  Burr.  2680  [753],  a  like  rule  was  held  where  the  con- 
signor agreed  to  pay,  and  paid  the  carrier  in  1770.  In  Dawes  v. 
Peck,  8  Dura.  &  E.  330  [754],  it  was  unanimously  held,  after  full 
citation  of  authorities  and  consideration,  that  an  action  by  the  con- 
signor would  not  lie  for  the  loss  of  the  goods,  when  they  had  been 
delivered  to  a  particular  carrier  by  order  of  the  consignee,  though 
lie  paid  for  booking  the  goods.  Lord  Kenyon,  Ch.  J.,  in  deliver- 
ing the  opinion  of  the  court,  observed  (K.  B.):  "This  question  must 
be  governed  by  the  consideration  in  whom  the  legal  right  was  vested, 
for  he  is  the  person  who  has  sustained  the  loss."  The  court  held, 
that  this  booking  was  done  as  the  agent  of  the  consignee.  This  in 
1799.  In  Brower  v.  Hodgson,  2  Camp.  36,  a  like  decision  at  nisi 
prius,  by  Lord  Ellenborough,  where  the  goods  were  shipped  by 
order,  and  on  account  of  the  consignee,  as  appeared  by  the  bill  of 
lading.     So  held,  on  the  ground  that  the  property  was  in  the  con- 


768  CAKEIEKS    OF   GOODS. 

signee,  from  the  time  of  delivery,  on  board  the  vessel.     This  in 
1809. 

In  Dutton  v.  Solomonson,  3  Bos.  &  Pul.  582,  same  doctrine. 
Lord  Alvanley,  Ch.  J.,  expressed  his  surprise  that  the  point  should 
be  questioned,  as  he  said  it  appeared  to  him  to  be  a  proposition  as 
well  settled  as  any  in  the  law,  that  if  a  tradesman  order  goods  to  be 
sent  by  a  carrier,  though  he  names  no  particular  carrier,  the  moment 
the  goods  are  delivered  to  the  carrier  it  operates  as  a  delivery  to  the 
purchaser.  The  whole  property  immediately  vests  in  him;  and  he 
alone  can  bring  an  action  for  any  injury  done  to  them. 

In  1803,  in  Freeman  v.  Birch,  1  Nev.  &  Man.  420  [769],  a  laundress 
sent  linen  she  had  washed  to  the  owner  in  London,  and  paid  the 
carriage.  Lost  hy  the  carrier,  the  action  by  laundress  sustained  on 
the  ground  that  she  had  a  special  property  in  the  linen;  but 
admitted  by  both  justices,  Littledale  and  Parke,  that  if  there  be 
a  complete  sale  the  property  is  out  of  the  vendor  altogether.  There 
the  vendor  transmits  as  agent  for  the  vendee. 

Excepting  cases  of  special  contract,  where  it  has  formerly  been 
held  that  the  consignor  may  bring  the  action,  I  think  the  cases 
agree  substantially  that  the  action  must  be  brought  in  the  name  of 
the  consignee  only,  as  the  owner;  and  that  the  owner  alone  can 
bring  the  action.  Angell  on  Carriers,  §  497.  In  such  case,  he  and 
not  the  consignor  must  bring  the  action,  for  the  consignor  has  his 
remedy  against  the  purchaser.  Id.  Where  the  contract  of  pur- 
chase and  sale  is  not  valid  or  complete  by  reason  of  the  Statute  of 
Frauds,  the  goods  being  over  the  value  of  £10,  and  the  title,  there- 
fore, still  rests  in  the  consignor,  though  the  goods  have  been 
delivered  to  the  carrier,  no  acceptance,  and  all  still  vesting  in  parol, 
the  action  must  be  brought  by  the  consignor.  Coombs  v.  The  Br. 
and  Ex.  K.  Co.,  3  Hurl.  &  Nor.  510.  But  all  the  judges,  in  de- 
livering opinions,  admitted  the  rule  to  be,  that  the  consignee  must 
have  brought  the  action  had  the  order  been  in  writing,  and  the  sale 
valid.  The  question  was  whether  the  property  passed  to  the  vendee. 
If  it  did,  he  must  sue. 

In  1858,  see  Potter  v.  Lansing,  1  J.  B.  215.  That  the  property 
passed  to  the  consignee,  in  the  case  at  bar  on  its  delivery  to  the 
carrier  "via  the  canal,"  is  entirely  clear.  People  v.  Haynes,  14 
Wend.  546;  Ang.  on  Car.  §497;  Smith's  Merc.  Law,  290,  5th  ed., 
2  Kent's  Com.  8th  ed.,  p.  in  mar.,  499,  and  cases  cited.  There  is 
nothing  disclosed  in  the  case  to  qualify  or  modify  that  title.  In 
the  language  of  the  books,  it  is  a  complete  sale.  No  special  con- 
tract by  the  vendor  with  the  carrier,  and  no  payment  of  the  price  of 
transportation  if  either  could  affect  the  title  of  the  vendee.  I  think 
it  clearly  could  not.  The  order  being  positive  and  in  writing,  and 
stating  the  mode  of  conveyance,  where  the  goods  were  delivered 
to  the  carrier  pursuant  to  that  order,  the  title  passed  absolutely  to 
the  vendee,  subject  to  the  right  of  stoppage  in  transitu,  and  it  gave 


KEMEDIES    AS   AGAINST    CARRIER.  709 

no  right  of  action  to  the  vendor  to  sue  for  the  loss  of  the  vend 
goods,  though  the  vendor,  as  agent  for  vendee,  paid  the  carriage,  01 
in  like  character,  specially  contracted  with  the  carrier  to  transport. 
Had  the  consignor  agreed  with  the  consignees  to  deliver  the  goods 
to  them  at  Kochester,  the  rule  would  be  different.  Then  the  con- 
signees would  not  be  the  owners  till  delivery  at  Rochester.  But 
upon  what  principle  a  vendor  can  sue  for  the  loss  of  another's  goods, 
it  is  difficult  to  see. 

In  this  case  the  right  of  action  being  in  the  vendee  under  the  facta 
disclosed,  the  return  of  the  empty  barrel  to  the  vendor,  and  his 
sending  on  another  in  no  manner  affected  that  right,  either  by 
extinguishing  or  by  assigning  it  to  the  consignor. 

Judgment  should  be  reversed,  and  new  trial  ordered,  costs  to 
abide  event. 


FREEMAN  v.   BIRCH. 
King's  BeDch.     1  Nev.  &  Man.  420.     1833. 

Case  against  a  carrier  for  negligence.  At  the  trial  before 
Patterson,  J.,  at  the  sittings  for  Middlesex  in  this  term,  the 
following  facts  appeared:  — 

The  plaintiff,  a  laundress  residing  at  Hammersmith,  was  in  the 
habit  of  sending  linen  to  and  from  London  by  the  defendant's  cart, 
which  travelled  from  Chiswick  to  London.  A  basket  of  linen  belong- 
ing to  Spinks  was  sent  by  the  defendant's  cart,  and  on  its  way  to 
London  part  of  its  contents  were  either  lost  or  stolen.  Spinks  did 
not  pay  the  carriage  of  the  linen.  It  was  objected  on  the  part  of 
the  defendant  that  the  present  action  was  misconceived,  and  that 
the  action  should  have  been  brought  by  the  owner  of  the  linen. 
The  learned  judge  overruled  the  objection,  and  a  verdict  was  found 
for  the  plaintiff. 

Heaton  now  moved  for  a  new  trial  on  the  ground  of  misdirection. 
The  action  should  have  been  brought  by  the  owner  of  the  linen,  and 
not  by  the  laundress.  It  is  laid  down  in  Selwyn's  Nisi  Prius,  p. 
405,  that  the  action  against  a  carrier  for  the  non-delivery  or  loss  of 
goods  must  be  brought  by  the  person  in  whom  the  right  of  property 
in  goods  is  vested.  [Parke,  J.  The  person  who  employs  the  car- 
rier must  bring  the  action.]  The  action  against  the  carrier  must  be 
brought  by  the  person  in  whom  the  legal  right  was  vested,  Dawes  v. 
Peck,  8  T.  R.  330  [754].  [Parke,  J.  The  circumstance  of  the  legal 
right  being  in  one  person,  may  be  evidence  of  employment  by  that 
person.]  In  Dawes  v.  Peck,  the  action  was  brought  by  the  vendor 
of  the  goods  against  the  carrier;  the  vendee  had  named  the  carrier. 
and  it  was  holden,  that  because   the  legal  right  to  the  goods  had 


770  CARKIERS    OF   GOODS. 

vested  in  the  vendee,  he  should  have  brought  the  action.  Again, 
in  Dutton  v.  Solomonson,  3  Bos.  &  Pull.  584,  xfc  was  held,  that  where 
goods  were  ordered  by  a  tradesman  to  be  sent  by  a  carrier,  the 
delivery  to  the  carrier  vested  the  property  in  the  purchaser,  and  he 
alone  could  maintain  an  action  against  the  carrier  for  the  loss  of  the 
goods:  King  v.  Meredith,  2  Camp.  639.  This  action  therefore  is 
improperly  brought. 

Littledale,  J.  In  the  cases  cited,  the  property  in  the  goods 
was  entirely  gone  out  of  the  vendor.  In  this  case  the  laundress 
retained  a  special  property  in  the  goods. 

Parke,  J.  I  am  of  the  same  opinion.  In  the  case  of  the  vendor 
and  vendee,  if  the  goods  are,  whilst  the  carrier  has  the  care  of  them, 
to  be  at  the  risk  of  the  vendor,  he  must  bring  the  action  against  the 
carrier.  In  ordinary  cases  the  vendor  employs  the  carrier  as  the 
agent  of  the  vendee.  See  Davis  v.  James,  5  Burr.  2680  [753] ; 
Moore  v.  Wilson,  1  T.  R.  659. 

Rule  refused. 


ELKINS   v.   BOSTON   &  MAINE  R. 
19  N.  H.  337.     1849. 

Assumpsit.  The  declaration  alleged  that  on  the  twenty-first  of 
April,  1847,  the  defendants  were  common  carriers  of  goods  for  hire 
from  Andover,  Mass.,  to  Exeter;  that  the  plaintiff  delivered  to  them 
an  overcoat  to  be  carried  from  Andover  to  Exeter,  and  delivered  to 
the  plaintiff  for  a  reasonable  reward  to  be  paid  therefor,  in  consider- 
ation of  which  the  defendants  received  the  coat  and  undertook  to 
transport  and  deliver  it  accordingly,  which  they  have  neglected  and 
refused  to  do. 

At  the  trial  upon  the  general  issue  it  appeared  in  evidence  that 
the  overcoat  belonging  to  the  plaintiff,  wl^ose  name  is  Charles  D. 
Elkins,  was  rolled  up  in  a  bundle  with  another  overcoat,  belonging 
to  Jonathan  Elkins,  and  a  label  put  upon  the  bundle  with  this 
address  upon  it:  "Jonathan  Elkins,  Exeter,  N.  H."  The  bundle 
was  left  by  Jonathan  Elkins  in  the  common  room  of  the  depot  at 
Andover,  and  the  depot-master  was  requested  by  him  to  send  the  bun  • 
die  by  the  next  passenger  train  to  Exeter,  which  he  said  he  would  do. 

The  defendants  objected  that  the  evidence  did  not  support  the 
declaration,  but  varied  materially  therefrom;  but  the  court  ruled  it 
to  be  sufficient. 

The  jury  returned  a  verdict  for  the  plaintiff,  which  the  defendants 
moved  to  set  aside. 

Gilchrist,  C.  J.  The  only  question  in  the  case  is  whether  the 
evidence  supports  the  declaration.     It  is  alleged  that  the  plaintiff 


REMEDIES-  AS   AGAINST   CARRIER.  771 

delivered  to  the  defendants  an  overcoat,  to  be  carried  from  Andover 
to  Exeter,  and  delivered  to  the  plaintiff.  It  appeared  that  two  over- 
coats were  rolled  up  in  a  bundle,  one  of  which  belonged  to  the  plain- 
tiff and  the  other  belonged  to  Jonathan  Elkins;  that  the  bundle  was 
directed  to  Jonathan  Elkins,  and  left  by  him  at  the  depot.  The 
only  question  properly  raised  by  the  case  is  whether  upon  these  facts 
the  plaintiff  may  maintain  an  action  against  the  defendants. 

In  the  case  of  Weed  v.  The  Saratoga  and  Schenectady  Railroad, 
19  Wend.  534,  cited  by  the  counsel  for  the  defendants,  the  declara- 
tion alleged  that  the  railroad  company  promised  the  plaintiffs  to 
carry  for  the  plaintiffs  a  trunk  containing  certain  goods,  etc.,  and 
bank  bills,  but  that  they  carelessly  lost  the  trunk  and  its  contents. 
The  second  count  alleged  an  undertaking  to  carry  the  trunk  and  its 
contents.  The  evidence  showed  that  the  plaintiffs'  clerk,  who  was 
travelling,  directed  his  baggage  to  be  put  into  the  proper  car,  but 
on  his  arrival  at  the  place  of  his  destination,  he  found  that  one  of 
his  trunks  was  lost,  containing  $285  belonging  to  the  plaintiffs, 
which  he  had  retained  for  his  travelling  expenses.  The  trunk 
belonged  to  one  Martin.  It  was  said  by  Cowen,  J.,  that  the  vari- 
ance was  material.  "  The  contract,  as  set  forth,  was  to  carry  the 
trunk  and  money  of  the  plaintiffs.  The  proof  is  that  the  trunk 
belonged  to  Martin,  a  stranger,  nor  was  it  shown  that  the  plaintiffs 
had  any  connection  with  it.  If  the  trunk  were  Barnes'  (the  clerk), 
the  variance  would  be  the  same,  and  so  I  think  if  he  had  hired  or 
borrowed  it  of  Martin  for  his  own  use. "  .  .  .  "  The  proof  is  at  most 
of  a  contract  with  the  plaintiffs  to  carry  the  money  only.  The 
declaration,  then,  fails  in  describing  correctly  a  special  executory 
contract,  wherein  great  exactness  is  always  demanded.  Where  the 
declaration  is  on  a  promise  to  do  several  things,  and  only  one  is 
proved,  this  is  a  variance.  .  .  .  The  whole  contract  in  the  case  at 
bar  was  made  ostensibly  with  Barnes.  If  in  legal  construction  it 
can  be  turned  in  favor  of  the  plaintiffs,  it  must  be  in  respect  to  their 
ownership  of  the  articles  undertaken  to  be  conveyed,  and  there  can 
be  no  pretence  that  the  trunk  of  a  stranger,  Martin ,  or  the  trunk  of 
Barnes,  in  which  the  plaintiffs  had  leave  to  deposit  their  money, 
would  be  comprehended  within  the  principle." 

Thus  far  the  decision  is  not  an  authority  for  the  defendants.  The 
question  of  variance  was  distinctly  raised  and  decided,  although  it 
finally  turned  out  not  to  be  very  material,  inasmuch  as  the  plaintiffs 
were  permitted  to  amend,  by  striking  out  the  trunk  from  the  declara- 
tion. But  the  learned  judge  goes  farther,  and  after  raising  the  ques- 
tion whether  Barnes  was  not  more  than  a  mere  agent,  and  was  not 
a  bailee,  having  himself  an  interest  in  the  money  for  his  travelling 
expenses,  says,  "It  is  doubtful,  at  least,  whether  a  promise  to  carry 
for  a  bailee  can  enure  to  the  benefit  of  the  bailor,"  although  that 
question  did  not  arise  in  the  case.  Upon  this  question  there  are 
several  decisions  worthy  of  consideration. 


772  CARRIERS    OF   GOODS. 

In  the  present  case  the  coat,  which  is  the  subject  of  this  action, 
being  in  the  possession  of  Jonathan  Elkins,  the  latter  must  be 
regarded  as  the  bailee,  and  the  plaintiff  as  the  bailor.  It  is  imma- 
terial for  what  particular  purpose  the  plaintiff's  coat  was  in  the  pos- 
session of  Jonathan  Elkins.  The  purpose  probably  was  that  the 
latter  might  cause  it  to  be  forwarded  to  the  plaintiff.  In  such  a 
case  it  is  clear  that  the  bailee  has  such  a  continuing  interest  in  the 
goods,  until  their  arrival  at  the  place  of  destination,  as  to  entitle 
him  to  sue  the  carrier  in  case  they  are  lost  or  damaged  on  their 
passage.  Thus,  in  the  case  of  Freeman  v.  Birch,  1  Nev.  &  Man. 
420  [769],  which  was  an  action  against  a  carrier  for  negligence,  it 
appeared  that  the  plaintiff,  a  laundress,  residing  at  Hammersmith, 
was  in  the  habit  of  sending  linen  to  and  from  London  by  the 
defendant's  cart,  which  travelled  from  Chiswick  to  London.  A 
basket  of  linen  belonging  to  one  Spinks  was  sent  by  the  defendant's 
cart,  and  on  its  way  to  London  part  of  its  contents  were  either  lost 
or  stolen.  Spinks  did  not  pay  the  "carriage  of  the  linen.  It  was 
objected  on  the  part  of  the  defendant  that  the  present  action  was 
misconceived,  and  that  the  action  should  have  been  brought  by  the 
owner  of  the  linen.  But  the  objection  was  overruled  and  a  verdict 
Was  found  for  the  plaintiff.  A  motion  was  made  for  a  new  trial, 
but  refused  by  the  Court  of  the  Queen's  Bench  on  the  ground  that 
Under  the  circumstances  the  bailee  retained  a  special  property  in  the 
goods  sufficient  to  support  the  action. 

The  property  in  articles  bailed  is  for  some  purposes  in  the  bailee 
and  for  some  in  the  bailor.  The  right  of  action  must  partake  of  the 
same  properties,  and  must  so  continue  until  it  is  finally  fixed  and 
determined  by  one  or  the  other  party  appropriating  it  to  himself. 
The  decision  in  Freeman  v.  Birch,  although  it  clearly  establishes 
the  right  of  a  bailee  to  sue,  does  not  necessarily  exclude  the  bailor 
from  bringing  an  action,-  if  he  chooses  to  anticipate  the  bailee  in  so 
doing.  The  rule  in  such  cases  is  stated  by  Parke,  B.,  to  be,  that 
either  the  bailor  or  the  bailee  may  sue.  and  whichever  first  obtains 
damages,  it  is  a  full  satisfaction.  Nichols  v.  Bastard,  2  Cro.  Mees. 
&  Bos.  660. 

The  principle  appears  to  be  well  settled,  that  if  it  is  not  expressed 
that  an  agent  contracts  in  behalf  of  another,  and  the  name  of  the 
principal  is  not  disclosed  by  him,  a  suit  may  be  maintained  in  the 
name  of  the  principal.  In  the  present  case,  Jonathan  Elkins  was 
clearly  the  agent  of  the  plaintiff,  and  the  name  of  the  plaintiff  was 
not  disclosed  by  him.  This  principle  is  recognized  in  the  case  of 
Sims  v.  Bond,  5  B.  &  Ad.  389,  where  Lord  Denman  says,  "It  is  a 
well-established  rule  of  law,  that  where  a  contract,  not  under  seal, 
is  made  with  an  agent  in  his  own  name,  for  an  undisclosed  principal, 
either  the  agent  or  the  principal  may  sue  upon  it;  the  defendant,  in 
the  latter  case,  being  entitled  to  be  placed  in  the  same  situation  at 
the  time  of  the  disclosure  of  the  real  principal,  as  if  the  agent  had 


REMEDIES   AS   AGAINST   CARRIER.  77;] 

been  the  contracting  party."  In  the  case  of  Higgins  v.  Senior,  8 
Mees.  &  Wels.  834,  it  was  held  that  the  suit  might  be  maintained 
on  the  contract,  either  in  the  name  of  the  principal  or  of  the  agent, 
and  that,  too,  although  required  to  be  in  writing  by  the  Statute 
of  Frauds.  Beebe  v.  Robert,  12  Wend.  413;  Taintor  v.  Prendergast, 
3  Hill,  92.  The  same  principle  was  adopted  by  the  Supreme  Court 
of  the  United  States,  in  the  memorable  case  of  the  loss  of  the 
steamer  " Lexington,"  in  Long  Island  Sound.  In  the  case  of  the  New 
Jersey  Steam  Navigation  Co.  v.  The  Merchants'  Bank,  6  Howard, 
344,  the  bank  had  delivered  to  Harnden,  an  express  agent,  a  large 
amount  of  specie  for  transportation,  by  whom  it  was  delivered  to 
the  Steam  Navigation  Co.,  who  were  then  running  the  "  Lexington  " 
between  New  York  and  Stonington.  It  was  held  that,  notwith- 
standing the  contract  of  affreightment  was  made  by  Harnden  with 
the  company  personally  for  the  transportation  of  the  specie,  it  was, 
in  contemplation  of  law,  a  contract  between  the  bank  and  the  com- 
pany, and  although  Harnden  made  the  contract  in  his  own  name, 
and  without  disclosing  the  name  of  his  employers  at  the  time,  the 
bank  might  maintain  a  suit  upon  the  contract  directly  against  the 
company.  So  where  the  plaintiff  agreed  with  B,  a  common  carrier, 
for  the  carriage  of  goods,  and  B,  without  the  plaintiff's  directions, 
agreed  for  the  carriage  with  C,  who,  without  the  plaintiff's  know- 
ledge, agreed  with  D,  a  third  carrier,  it  was  held  that  the  plaintiff 
might  maintain  an  action  against  D,  for  not  delivering  the  goods, 
and  that  by  bringing  the  action  the  plaintiff  affirmed  the  contract 
made  with  D,  by  C,  and  could  not  afterwards  recover  from  B. 
Sanderson  v.  Lamberton,  6  Binn.  129. 

Upon  the  principles  above  stated,  our  opinion  is  that  the  plaintiff 

may  maintain  this  action. 

Judgment  on  the  verdict. 


b.    Form  of  Action. 

DALE   v.   HALL. 
King's  Bench.     1  Wils.  281.     1750. 

Action-  upon  the  case  against  a  shipmaster  or  keelman  who  car- 
ries goods  for  hire  from  port  to  port;  the  plaintiff  does  not  declare 
against  him  as  a  common  carrier  upon  the  custom  of  the  realm,  but 
the  declaration  is,  that  the  defendant  at  the  special  instance  of  the 
plaintiff  undertook  to  carry  certain  goods  consisting  of  knives  and 
other  hardware  safe  from  such  a  port  to  such  a  port,  and  that  in 
consideration  thereof  the  plaintiff  undertook  and  promised  to  pay 
him  so  much  money,  that  the  goods  were  delivered  to  the  defendant 


774  CAERIEKS   OF   GOODS. 

on  board  his  keel,  that  the  goods  were  kept  so  negligently  by  him 
that  they  were  spoiled,  to  the  plaintiffs  damage ;  upon  the  general 
issue  noti  assumpsit;  this  cause  came  on  to  be  tried  before  Justice 
Burnett,  and  the  plaintiff  proved  the  goods  were  all  in  good  order 
and  clean  when  they  were  delivered  on  board,  and  that  they  were 
damaged  by  water  and  rusted  to  the  value  of  2U.  this  was  all  the 
plaintiff's  evidence. 

For  the  defendant  it  was  insisted  at  the  trial  that  as  the  plaintiff 
had  proved  no  particular  negligence  in  the  defendant,  that  he  might 
be  permitted  to  give  in  evidence  that  he  had  taken  all  possible  care 
of  the  goods,  that  the  rats  made  a  leak  in  the  keel  or  hoy,  whereby 
the  goods  were  spoiled  by  the  water  coming  in,  that  they  pumped 
and  did  all  they  could  to  prevent  the  goods  being  damaged,  which 
evidence  the  judge  permitted  to  be  given,  and  thereupon  left  it  to 
the  jury,  who  found  a  verdict  for  the  defendant. 

It  was  now  moved  for  a  new  trial  by  Mr.  Clayton  and  Mr.  Ford 
for  tho  plaintiff,  who  insisted  that  the  evidence  given  for  the 
defendant  ought  not  to  have  been  received. 

Foster  (Justice)  reported  that  Burnett  (Justice)  was  doubtful 
whether  the  evidence  given  by  the  defendant  was  admissible  or  not, 
and  submits  that  to  the  court;  but  if  it  was  admissible,  he  is  very 
well  satisfied  with  the  verdict. 

Sir  Thomas  Bootle  and  Sergeant  Booth,  for  the  defendant,  insisted 
that,  this  declaration  nob  being  upon  the  custom  of  the  realm,  but 
upon  a  particular  contract,  and  that  the  breach  assigned  being,  that 
by  the  negligence  of  the  defendant  the  goods  were  spoiled,  that 
therefore  negligence  is  the  very  gist  of  this  action,  and  the  defendant 
has  proved  there  was  no  negligence;  indeed,  if  the  declaration  had 
been  that  the  defendant  promised  to  keep  safely  the  goods  as  well 
as  to  carry  them  safely,  he  must  have  kept  them  safely  at  all 
events. 

Lee,  Chief  Justice.  This  is  a  nice  distinction  indeed;  I  am  of 
opinion  that  the  evidence  given  for  the  defendant  was  not  admis- 
sible; the  declaration  is,  that  the  defendant  undertook  for  hire  te 
carry  and  deliver  the  goods  safe,  and  the  breach  assigned  is  that 
they  were  damaged  by  negligence;  this  is  no  more  than  what  the 
law  says,  everything  is  a  negligence  in  a  carrier  or  a  hoyman,  that 
the  law  does  not  excuse,  and  he  is  answerable  for  goods  the  instant 
he  receives  them  into  his  custody,  and  in  all  events,  except  they 
happen  to  be  damaged  by  the  act  of  God  or  the  King's  enemies;  and 
a  promise  to  carry  safely  is  a  promise  to  keep  safely. 

Wright,  Justice,  of  the  same  opinion. 

Denison,  Justice.  The  law  is  very  clear  in  this  case  for  the 
plaintiff;  the  declaration  upon  the  custom  of  the  realm  is  the  same 
in  effect  with  the  present  declaration;  in  the  old  forms  it  is,  that 
the  defendant  suscepit,  etc.,  which  shows  that  it  is  ex  contractu  ;  in 
the  present  case  the  promise  to  carry  safely  need  not  be  proved,  the 


REMEDIES    AS    AGAINST   CARRIER.  77.-, 

law  raises  it,  the  breach  is  very  right  that  he  did  not  deliver  them 
safely,  but  so  negligently  kept  them  that  they  were  spoiled. 
Foster  of  the  same  opinion;  and  a  new  trial  was  granted. 


BAYLIS   v.    LINTOTT. 
Common  Pleas.     L.  R.  8  C.  P.  345.     1873. 

This  was  an  application  for  a  rule  to  tax  the  costs  of  the  action 
under  the  following  circumstances. 

The  declaration  in  substance  stated  that  the  defendant  was  the 
proprietor  of  a  certain  hackney  carriage,  which  said  hackney  car- 
riage was  at  the  time,  etc.,  under  the  care,  management,  and  direc- 
tion of  defendant's  servant,  and  plying  for  hire  within  the  limits  of 
the  Metropolitan  Police  District,  and  thereupon,  and  after  the  pass- 
ing of  the  Act  of  Parliament  made  and  passed  in  the  seventh  year 
of  her  present  Majesty,  "An  Act  for  regulating  Hackney  and  Stage 
Carriages  in  and  near  London,"  the  plaintiff,  at  the  request  of  the 
defendant,  hired  the  said  hackney  carriage  of  the  defendant  to  con- 
vey and  carry  the  plaintiff  and  her  luggage  from  and  to  certain 
specified  places,  and  thereupon,  in  consideration  of  the  premises, 
and  that  the  plaintiff,  together  with  her  said  luggage,  would,  at  the 
request  of  the  defendant,  become  and  be  a  passenger  to  be  carried 
and  conveyed  in  the  said  hackney  carriage  as  aforesaid,  and  of  cer- 
tain reward  to  the  defendant  in  that  behalf,  he,  the  defendant,  as 
and  being  such  proprietor  of  the  said  hackney  carriage  as  aforesaid, 
then  promised  the  plaintiff  to  convey  her  and  her  said  luggage  safely 
and  securely  from  and  to  the  places  specified,  and  accepted  her  and 
her  said  luggage  to  be  so  carried;  but  the  defendant,  not  regarding 
his  duty  as  such  proprietor  of  the  said  hackney  carriage  as  afore- 
said, or  his  said  promise,  did  not  nor  would  carry  or  convey  the 
plaintiff  and  her  said  luggage  safely  and  securely,  but  so  carelessly 
and  negligently  behaved  and  conducted  himself  by  his  said  servant 
in  that  behalf  in  and  about  the  premises,  that  by  and  through  the 
mere  carelessness,  negligence,  and  improper  conduct  of  the  defend- 
ant by  his  said  servant,  and  not  otherwise,  part  of  the  plaintiff's 
said  luggage  became  and  was  wholly  lost  to  the  plaintiff.  Plea: 
payment  into  court  of  £15.  Replication  that  £15  was  not  suffi- 
cient.  The  plaintiff  at  the  trial  obtained  a  verdict  for  £5  above  t  he 
amount  paid  into  court,  and  the  question  therefore  arose  whether 
the  plaintiff  having  recovered  a  sum  not  exceeding  £20  was  de- 
prived of  costs  by  virtue  of  the  Countv  Courts  Act,  1867,  30  &  31 
Vict.  c.  142,  s.  5. 

Kydd,  in  moving  for  a  rule  nisi,  contended  that  the  action  must 


776  CARRIERS    OF    GOODS. 

be  considered  as  founded  on  tort.  The  case  of  Tattan  v.  Great 
Western  Ry.  Co.1  decided,  with  reference  to  the  question  of  costs, 
that  an  action  against  a  common  carrier  for  not  safely  delivering 
soods  is  an  action  of  tort  founded  on  the  custom  of  the  realm,  and 
not  one  of  contract.  It  is  submitted  that  the  position  of  a  hackney- 
carriage  proprietor  with  respect  to  the  luggage  of  persons  hiring  his 
carriage  is  that  of  a  common  carrier.  The  declaration  must  be 
treated  as  one  in  tort;  the  statement  in  the  declaration  of  the  con- 
tract is  mere  inducement,  showing  the  facts  from  which  the  duty 
arose ;  the  cause  of  action  is  the  breach  of  duty. 

Bovill,  C.  J.     I  think  there  should  be  no  rule.     The  provisions 
of  the  County  Courts  Act,  30  &  31  Vict.  c.  142,  s.  5,  deprive  the 
plaintiff  of  costs  if  he  does  not  recover  a  sum  exceeding  £20  in 
actions  founded  on  contract,  or  £10  in  actions  founded   on   tort. 
The    defendant   paid   into   court   the    sum    of    £15,    and   the   jury 
awarded   the  further  sum  of  £5,    so  that  in  the   whole   the    sum 
recovered  did  not  exceed  £20.     The  question  thus  arises  whether 
the  present  action  is  founded  on  contract  within  the  meaning  of  the 
section.     On  looking  to  the  form  of  the  declaration,  it  appears  to  me 
clear  that  the  cause  of  action  therein  alleged  is  one  founded  on  con- 
tract.    In  many  cases  previous  to  the  introduction  of  the  present 
rules  of  pleading  it  became  material  to  consider,  with  a  view  to  pre- 
venting misjoinder  of  counts,  whether  a  count  could  be  framed  in 
case  instead  of  assumpsit.     And  it  was  a  common  practice  to  treat 
causes  of  action  founded  on  contract  as  actions  of  tort,  and  to  frame 
declarations  alleging  a  contract  and  a  duty  arising  therefrom,  and 
complaining  of  a  breach  of  such  duty  by   neglect  to  perform  the 
contract.     Here  the  contract  alleged  in  the  declaration  would  be 
implied  by  law  on  the  hire  of  the  carriage,  and  the  cause  of  action 
is  therefore  rightly  put  as  founded  on  the  contract.     In  the  case  of 
Tattan  v.   Great  Western   Ry.  Co.,1  which  was  cited,  the  Queen's 
Bench  treated  the  cause  of  action  as  one  founded  on  tort;  but  the 
Lord  Chief  Justice  expressed  his  regret  at  the  anomalous  state  of 
the  law,  by  which  an  option  being  given  to  the  plaintiff  to  sue  in 
either  form,  the  right  to  costs  depended  merely  on  the  form  of  the 
declaration.     It  is  sufficient  to  say  with  regard  to  that  case,  that  the 
court  considered  the  form  of  declaration  to  amount  to  case  and  not 
contract.     There  was  no  statement   there   of   any  promise  or  con- 
sideration as   in   this  case;    but  the  cause  of  action  was  founded 
wholly  on  the  breach  of  duty.     The  case  is  therefore  clearly  distin- 
guishable from  the  present,  inasmuch  as  it  proceeds  on  the  precise 
character  of  the  cause  of  action  as  alleged  in  the  declaration,  which 
was  wholly  different  from  that  in  the  present  case.     In  the  case  of 
Legge  v.  Tucker,2  where  the  action  was  against  a  livery -stable  keeper 
for  negligence  in  the  care  of  a  horse,  the  court  thought  that  the 

i  2  E.  &  E.  844  ;  29  L.  J.  (Q.  B.)  184. 
2  1  H.  &  N.  500  ;  26  L.  J.  (Ex.)  71. 


REMEDIES.  AS   AGAINST    CARRIER.  777 

cause  of  action  was  founded  on  contract.  This  decision  preceded 
that  of  Tattan  v.  Great  Western  Ry.  Co.,1  and  though  it  appears  to 
have  been  cited,  the  court  in  delivering  their  judgment  made  no 
observations  upon  it.  Since  both  those  decisions  the  case  of  Morgan 
v.  Ravey2  was  decided.  In  that  case  an  innkeeper's  executors  wen- 
sued  for  the  not  keeping  securely  the  property  of  a  traveller,  and 
with  reference  to  the  difference  between  their  liability  in  cases  of 
tort  and  contract,  it  became  necessary  to  consider  whether  the  action 
was  founded  on  tort  or  contract,  and  it  was  considered  that  it  was 
founded  on  contract,  and  the  executors  were  therefore  held  liable. 
Mr.  Bullen,  in  his  excellent  work  on  Pleading,  3d  ed.,  p.  121,  states 
that  the  question  of  costs  depends  on  the  substance  of  the  thing,  not 
on  mere  matter  of  form.  Pollock,  C.  B.,  says,  in  delivering  the 
considered  judgment  of  the  court  in  Morgan  v.  Ravey:3  "We  think 
that  the  cases  have  established  that  where  a  relation  exists  between 
two  parties  which  involves  the  performance  of  certain  duties  by  one 
of  them  and  the  payment  of  reward  to  him  by  the  other,  the  law 
will  imply,  or  the  jury  may  infer,  a  promise  by  each  party  to  do 
what  is  to  be  done  by  him."  Looking  to  those  authorities,  if  it 
were  now  necessary  to  consider  the  case  of  Tattan  v.  Great  Western 
Ry.  Co.,1  and  to  decide  upon  what  seems  to  amount  to  a  conflict  of 
authority,  I  should  be  disposed  to  adopt  the  decisions  of  the  Court 
of  Exchequer  and  the  principles  on  which  they  are  based,  but  it  is 
not  necessary  to  do  so  in  this  case,  inasmuch  as  it  is  distinguishable 
from  Tattan  v.  Great  Western  Ry.  Co.1  on  the  form  of  the  declaration. 

Keating,  J.  I  am  of  the  same  opinion.  I  do  not  pronounce  any 
opinion  on  the  question  whether  the  decision  in  Tattan  v.  Great 
Western  Ry.  Co.1  is  right  or  not,  for  I  think  that  case  is  distin- 
guishable from  the  present.  There  the  declaration  was  against  a 
common  carrier  on  the  custom  of  the  realm ;  here  a  promise  is  alleged 
and  a  breach  of  such  promise.  It  seems  to  me  that  the  cause  of 
action  here  is  plainly  founded  on  a  contract  within  the  meaning  of 
the  section. 

Honyman,  J.  I  am  of  the  same  opinion.  There  are  many  actions 
against  carriers  and  other  parties  in  which  the  declaration  may  be 
framed  either  in  tort  or  contract.  The  distinction  between  the  two 
was  very  material  in  former  days.  The  rule  is  thus  laid  down  by 
Tindal,  C.  J. ,  in  Boorman  v.  Brown : 4  "  That  there  is  a  large  class 
of  cases  in  which  the  foundation  of  the  action  springs  out  of  privity 
of  contract  between  the  parties,  but  in  which,  nevertheless,  the 
remedy  for  the  breach  or  non-performance  is  indifferently  either 
assumjjsit  or  case  upon  tort,  is  not  disputed ;  such  as  actions  against 
attorneys,  surgeons,  and  other  professional  men,  for  want  of  propel 

i  2  E.  &  E.  844  ;  29  L.  J.  (Q.  B.)  184. 
2  6  H.  &  N.  265  ;  30  L.  J.  (Ex.)  131. 
8  6  H.  &  N.,  at  p.  276. 
«  3  Q.  B.  516. 


778  CARRIERS   OF   GOODS. 

skill  or  proper  care  in  the  service  they  undertake  to  render;  actions 
against  common  carriers,  against  shipowners,    on   bills  of  lading, 
against  bailees  of  different  descriptions,  and  numerous  other  instances 
occur  in  which  the  action  is  brought  in  tort  or  in  contract  at  the 
election  of  the  plaintiff."     The  decisions  on  the  right  to  costs  in 
such  cases  do  not  appear  to  be  very  easily  reconcilable.     It  does  not 
seem  altogether  satisfactory  that  the  plaintiff  should  by  declaring 
in  one  particular  form  rather  than  another  alter  the  liability  of  the 
defendant  in  respect  of  costs,  but  many  of  the  authorities  seem  to 
show  that  he  may  do  so.     In  this  case,  however,  the  form  of  the 
declaration  in  my  opinion  is  clearly  that  of  a  declaration  in  con- 
tract.    The  duty  alleged  is  alleged  as  proceeding  from  the  contract 
between  the  parties.     The  plaintiff  having  chosen  so  to  frame  the 
cause  of  action  cannot  now,  it  appears  to  me,  turn  round  and  say 
that  for  the  purposes  of  costs  the  cause  of  action  is  based  on  tort. 
As  regards  the  decision  in  Tattan  v.  Great  Western  Ky.  Co.1  and 
the  other  decisions  that   have   been   referred   to,    I   pronounce  no 
opinion  as  to  which  we  ought  to  follow  if  it  were  necessary  to  decide 
between  them.     It  is  clear  on  consideration  of  the  former  case  that 
the  declaration  there  was  a  declaration  on  the  case,  and  the  present 

case  is  therefore  distinguishable. 

Rule  refused. 


POZZI   v.    SHIPTON. 

Queen's  Bench.     8  A.  &  E.  963.     1838. 

Case.  The  declaration  stated  that,  on,  etc.,  the  plaintiff  caused 
to  be  delivered  to  the  defendants,  and  the  defendants  then  accepted 
and  received  of  and  from  the  plaintiff,  a  certain  package  containing  a 
looking-glass  of  the  plaintiff,  of  great  value,  to  wit,  etc.,  to  be  taken 
care  of,  and  carried  and  conveyed  by  the  defendants  from  Liverpool 
to  Birmingham  in  the  county  of  Warwick,  and  there,  to  wit,  at 
Birmingham,  to  be  delivered  to  one  Peter  Pensey  for  the  plaintiff, 
for  certain  reasonable  reward  to  the  defendants  in  that  behalf;  and 
thereupon  it  then  became  and  was  the  duty  of  the  defendants  to  take 
due  care  of  the  said  package  and  its  contents  whilst  they  so  had  the 
charge  thereof  for  the  purpose  aforesaid,  and  to  take  due  and  reason- 
able care  in  and  about  the  conveyance  and  delivery  thereof  as  afore- 
said; yet  the  defendants,  not  regarding  their  duty  in  that  behalf, 
but  contriving  and  fraudulently  intending  to  deceive  and  injure  the 
plaintiff  in  that  behalf,  did  not  nor  would  take  due  care  of  the  said 
package  and  its  contents  aforesaid,  whilst  they  had  the  charge 
thereof  for  the  purpose  aforesaid,  or  take  due  and  reasonable  care 

i  2  E.  &  E.  844 ;  29  L.  J.  (Q.  B. )  184. 


KEMEDIES-AS    AGAINST   CARRIER.  77., 

in  and  about  the  conveyance  and  delivery  thereof  as  aforesaid;  hut 
on  the  contrary  thereof,  the  defendants,  whilst  they  had  the  charge.' 
of  the  said  package  and  its  contents  for  the  purpose  aforesaid,  to 
wit,  on,  etc.,  took  so  little  and  such  bad  and  improper  fare  of  the 
said  package  and  its  contents,  and  such  bad  and  unreasonable  care 
in  and  about  the  conveyance  and  delivery  thereof  as  aforesaid,  and 
so  carelessly  and  negligently  conducted  themselves  in  the  premises, 
that  the  said  looking-glass,  being  of  the  value  aforesaid,  afterwards, 
to  wit,  on,  etc.,  became  and  was  broken  and  greatly  damaged.  To 
the  damage  of  the  plaintiff  of  £10,  etc. 

Pleas:  1.  Not  guilty.  2.  That  plaintiff  did  not  cause  to  be 
delivered  to  defendants,  nor  did  defendants  accept  from  plaintiff, 
the  said  package,  etc.,  to  be  taken  care  of  and  carried,  etc.,  and 
safely  to  be  delivered,  etc.,  for  reward  in  that  behalf,  in  manner  and 
form,  etc.     Conclusion  to  the  country.     Joinder. 

[Verdict  for  plaintiff  and  a  rule  nisi."] 

Patteson,  J.  This  is  an  action  against  carriers  for  negligence. 
A.  verdict  was  found  for  the  plaintiff  against  one  of  the  defendants 
only,  and,  upon  a  rule  for  a  new  trial  having  been  obtained,  the 
case  was  argued  in  last  Easter  Term  before  my  brothers,  Littledale, 
Coleridge,  and  myself. 

The  form  of  the  declaration  is  in  case,  and  differs  from  that  used 
in  Bretherton  v.  Wood  [3  Brod.  B.  54],  in  this,  that  it  contains  no 
positive  averment  that  the  defendants  were  carriers;  whereas  in 
Bretherton  v.  Wood  there  was  an  averment  that  the  defendants  were 
proprietors  of  a  stagecoach,  for  the  carriage  and  conveyance  of  pas- 
sengers for  hire  from  Bury  to  Bolton.  The  present  declaration 
states  simply  that  the  plaintiff  delivered  to  the  defendants,  and  the 
defendants  received  from  the  plaintiff,  goods  to  be  carried  for  hire 
from  A  to  B.  It  is  therefore  consistent  with  the  defendants  being 
common  carriers,  or  being  hired  on  the  particular  occasion  only. 
Upon  the  trial  it  was  proved  satisfactorily  that  the  defendant 
against  whom  the  verdict  was  found  was  a  common  carrier;  and  it 
does  not  appear  to  have  been  objected,  at  that  time,  that  proof  of 
an  express  contract  between  the  plaintiff  and  the  defendants  was 
necessary  in  order  to  sustain  the  declaration.  If  such  proof  was  not 
necessary,  it  can  only  be  because  the  declaration  may  be  read  as 
founded  on  the  general  custom  of  the  realm ;  and,  if  it  may  be  so 
read,  the  court  after  verdict  must  so  read  it;  and  then  the  case  of 
Bretherton  v.  Wood  is  directly  in  point  in  favor  of  the  plaintiff. 

Upon  consideration  we  are  of  opinion  that  the  declaration  may  be 
so  read.  The  practice  appears  to  have  been  in  former  times  to  set 
out  the  custom  of  the  realm;  but  it  was  afterwards  very  properly 
held  to  be  unnecessary  so  to  do,  because  the  custom  of  the  realm  is 
the  law,  and  the  court  will  take  notice  of  it,  and  the  distinction  has 
for  many  years  prevailed  between  general  and  special  customs  in 
this  respect.     Afterwards  the  practice  appears  to  have  been  to  state 


780  CARRIERS    OF   GOODS. 

the  defendants  to  be  common  carriers  for  hire,  totidem  verbis.  That, 
however,  was  departed  from  in  Bretherton  v.  Wood  to  a  consider- 
able extent,  and  certainly  still  farther  upon  the  present  occasion. 

It  may  be  that  the  present  declaration  could  not  have  been  sup- 
ported on  special  demurrer  for  want  of  some  such  averment;  but  on 
this  point  we  are  not  called  upon  to  give  any  opinion.  It  does  not 
state  that  the  goods  were  delivered  to  the  defendants  at  their  special 
instance  and  request,  nor  contain  any  other  allegation  necessary 
applicable  to  any  express  contract  only,  or  even  pointing  to  any 
express  contract.  We  cannot,  therefore,  say  that  it  shows  the  action 
to  be  founded  on  contract;  and  it  is  sufficient  for  the  present  pur- 
pose, if  the  language  in  which  it  is  couched  is  consistent  with  its 
being  founded  on  the  general  custom  as  to  carriers. 

Taking  this  declaration,    therefore,   to  charge  the  defendants  as 

common  carriers,  it  follows  that  it  is  strictly  an  action  on  the  case 

for  a  tort,  and  that  one  of  several  defendants  may  be  found  guilty 

upon  it  according  to  the  doctrine  established  in  Bretherton  v.  Wood. 

The  evidence  warrants  the  verdict  which  has  been  found,  and  tee 

cannot  disturb  that  verdict.     We  purposely  abstain  from  giving  any 

opinion  whether  the   doctrine  in  Govett  v.  Radnidge  [3  East,  62] 

or   that   in   Powell  v.  Layton,   2   N.  R.  365,  be  the  true  doctrine, 

as  we  do  not  feel   ourselves   called  upon  to  decide  between  them, 

supposing  them  to  differ. 

The  rule  must  be  discharged. 

Rule  discharged. 


SMITH   v.    SEWARD. 

3  Penn.  St.  342.     1846. 

This  was  an  action  on  the  case  for  the  loss  of  horses,  etc.,  in 
crossing  a  ferry.  The  plaintiff  declared  against  A.  Smith,  as  owner 
and  occupier,  and  E.  Smith  being  in  his  employ  for  conducting  said 
ferry:  "for  that  they,  the  said  defendants,  respectively  occupying 
and  conducting  said  ferry,  offered  and  undertook,  in  consideration 
that  the  public,  and  those  desirous  of  travelling  across  said  river, 
should  be  conveyed  across  by  means  of  the  ferriage  of  said  defend- 
ants, and  for  hire  to  receive  and  safely  to  convey  across  said  river, 
by  a  certain  ferryboat,  across,  etc. ;  and  also  all  wagons,  etc. ;  and, 
having  thus  offered  and  undertaken,  did  use,  occupy,  and  conduct 
said  ferry;  that  plaintiff  learning  said  defendants  did  so  use  and 
occupy,  and  had  offered  and  undertaken  safely  to  transport,  etc.," 
brought  certain  horses,  and  a  wagon  of  the  value,  etc.,  together  with 
goods  in  the  care  of  L.  0.  to  said  ferry.  That  said  horses,  etc., 
being  on  said  track,  E.  Smith,  at  the  instance,  and  in  the  employ  of 


REMEDIES    AS    AGAINST    CARRIER.  781 

A.  Smith,  did  agree  safely  to  receive  and  convey,  and  that  plaintiff, 
in  consideration  of  such  undertaking,  committed  said  property  to 
the  care  of  said  defendants.  That  defendants  contriving,  etc.,  did 
not  safely  convey,  but  through  their  carelessness  said  goods,  etc., 
were  thrown  into  the  river  and  lost. 

The  second  count  was  in  substance  the  same,  laying  a  general 
undertaking  by  defendants  to  convey.  The  plea  was  not  guilty. 
The  evidence  showed,  according  to  the  finding  of  the  jury,  though 
there  was  conflicting  testimony  whether  the  negligence  of  the 
wagoner  was  the  cause  of  the  accident,  that  there  was  no  fall-board 
at  the  end  of  the  flat  used  as  a  ferryboat,  and  it  being  insecurely 
fastened  to  the  shore,  the  wheels  of  the  wagon  striking  the  side  of 
the  boat,  as  it  was  being  driven  on  board  under  the  direction  of  the 
ferryman,  the  flat  was  shoved  from  the  shore,  and  the  horses  fell 
into  the  river  and  were  drowned,  the  harness  injured,  and  a  whip 
and  robe  lost. 

One  of  the  witnesses  called  by  plaintiff  to  prove  these  facts,  before 
any  evidence  of  negligence  was  given,  was  the  owner  of  the  goods 
in  the  wagon,  which  were  also  injured;  he  had  hired  the  horses  of 
the  plaintiff,  and  a  wagoner  to  haul  them;  to  his  deposition  an 
exception  was  taken. 

His  Honor  (Conyngham,P.  J.)  instructed  the  jury  that  the  action 
being  for  a  tort,  viz.,  negligence  of  defendants,  a  recovery  could  be 
had  against  either  of  the  defendants  if  the  evidence  justified  it,  the 
owner  of  the  ferry  being  bound  to  have  the  boat  and  fixtures  in 
proper  order;  but  as  the  only  ground  was  defect  in  the  fastenings, 
he  did  not  see  how  a  verdict  could  be  found  against  the  hired  man. 
That  a  ferryman  was  a  common  carrier,  and  was  responsible  for  all 
losses  except  those  occasioned  by  the  act  of  God,  inevitable  accident, 
or  the  public  enemies.  If  a  fastening  was  necessary,  he  was  bound  to 
have  it,  and  if  it  broke  he  was  liable  though  he  thought  it  sufficient. 

To  this  there  was  an  exception,  and  the  errors  assigned  were  to 
the  admission  of  the  testimony  excepted  to.  2d.  In  the  construc- 
tion that  a  verdict  could  pass  against  one  defendant.  4th.  The 
charge  as  to  the  extent  of  the  liability.  The  3d  was  for  not  arrest- 
ing the  judgment.  The  reasons  in  support  of  the  motion  were, 
1.  The  declaration  sounded  in  contract,  and  there  being  a  verdict 
in  favor  of  one  defendant,  no  judgment  could  be  entered.  2.  That 
no  sufficient  consideration  was  alleged. 

Butler  and  Wright,  for  plaintiffs  in  error.  The  declaration  is  in 
assumpsit,  and  the  undertaking  and  agreement  of  the  defendant  are 
alleged  as  the  gravamen  of  the  action;  hence,  of  course,  both  or 
neither  defendants  are  liable.  That  this  is  so,  is  shown  from  the 
fact  that  no  single  requisite  to  a  declaration  in  contract  is 
wanting.   .   .   . 

Dana,  contra.  The  occupation  of  defendant  implied  a  -.'una] 
undertaking  and  obligation  to  keep  suitable  boats  and   fasl 


7S2  CARRIERS    OF    GOODS. 

the  failure  in  which  is  a  tort  or  violation  of  his  duty,  by  reason 
that  it  is  a  breach  of  his  undertaking;  and  it  was  long  doubted 
whether  a  verdict  could  pass  for  one  only  in  a  suit  against  carriers. 
Here  the  misfeasance  was  distinctly  put  in  issue  and  canvassed  in 
the  court  below;  and  there  must  be  a  clear  violation  of  some  rule 
of  pleading  to  reverse  a  judgment  under  such  circumstances.  All 
actions  against  carriers  are  directly  on  the  contract  or  for  a  tort 
founded  in  fact  on,  or  deducible  from  a  contract,  for  wanton  injuries 
rarely  occur;  a  declaration  must  therefore  be  tinctured  with  con- 
tract. Church  v.  Munford,  11  Johns.  479;  Zell  v.  Arnold,  2  Penna. 
Rep.  292.  But  the  plea  cures  all  defects,  provided  there  be  a  tort 
averred  in  the  declaration;  Bac.  Abr.  3,  Pleas  G.  2;  and  the  aver- 
ment of  a  consideration  became  immaterial. 

2.  The  evidence  does  not  show  that  be  was  such  a  bailee  as  to  be 
liable  in  the  manner  now  contended  for,  and  if  he  was,  that  is 
waived  by  this  action. 

Gibson,  C.  J.  ......... 

The  motion  to  arrest  the  judgment  for  the  reason  that  the  verdict 
was  against  but  one  of  the  defendants,  was  properly  dismissed,  the 
declaration  being  for  a  tort,  which  is  both  joint  and  several.  It 
was  originally  the  practice  to  declare  against  a  carrier  only  on 
the  custom  of  the  realm;  but  it  has  long  been  established  that 
the  plaintiff  may  declare  in  case  or  assumpsit  at  his  election; 
and  it  is  usual  to  declare  in  the  latter,  as  was  done  in  McCahan  v. 
Hurst,  7  Watts,  175,  Todd  v.  Figley,  id.  524,  and  Hunt  v.  Wynn, 
6  Watts,  47.  Indeed,  his  right  to  do  so  seems  never  to  have  been 
questioned  by  the  English  courts.  On  the  contrary,  the  judges  in 
Powell  v.  Layton,  2  N.  R.  356,  and  Dale  v.  Hall,  1  Wils.  282  [773], 
thought  that  the  declaration  is  essentially  founded  in  contract, 
though  the  word  suscepit  be  not  in  it.  In  Powell  v.  Layton,  the 
defendant  was  allowed  to  plead  the  non-joinder  of  his  partner  in 
abatement,  though  the  word  duty  stood  in  place  of  the  word  promise; 
in  which  the  court  seems  to  have  gone  very  far,  inasmuch  as  the 
plaintiff  may  certainly  waive  the  contract  and  go  for  a  tort.  There 
has  been  a  good  deal  of  wavering  on  the  subject,  not  only  as  to  the 
proper  remedy,  but  as  to  the  distinctive  feature  of  the  declaration. 
In  regard  to  the  latter,  Corbett  v.  Packington,  6  Barn.  &  Cres.  268, 
has  put  the  law  of  the  subject  on  satisfactory  ground,  by  making  the 
presence  or  absence  of  an  averment,  not  of  promise  only,  but  of  con- 
sideration also,  the  criterion;  for  it  is  impossible  to  conceive  of  a 
promise  without  consideration,  any  more  than  a  consideration  with- 
out promise,  as  an  available  cause  of  action;  and  when  a  considera- 
tion is  not  laid,  the  word  agreed,  or  undertook,  or  even  the  more 
formal  word,  promised,  must  be  treated  as  no  more  than  inducement 
to  the  duty  imposed  by  the  common  law.  Now  no  consideration  is 
laid  in  the  count  before  us.  The  undertaking  of  the  defendants  to 
safely  pass  the  team,  is  stated  to  be  the  consideration  which  moved 


REMEDIES   AS   AGAINST    CARRIER.  78  I 

the  wagoner  to  commit  it  to  their  care ;  but  no  consideration  is  stated 
for  anything  else:  certainly,  none  for  the  defendant's  undertaking. 
As  the  declaration,  therefore,  is  decisively  in  case,  the  verdict 
against  one  of  the  defendants  and  for  the  other  is  consequently 
good. 

•  ••••••••••• 

Judgment  affirmed.. 


c.    Burden  of  Proof  . 
TRANSPORTATION   CO.    v.    DOWNER. 

11  Wall.  (U.  S.)  129.     1870. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  Illinois. 

This  case  was  an  action  against  the  Western  Transportation  Com- 
pany to  recover  damages  sustained  by  the  plaintiff  from  the  loss  of 
eighty-four  bags  of  coffee  belonging  to  him  which  the  company  had 
undertaken  to  transport  from  New  York  to  Chicago.  The  company 
was  a  common  carrier,  and,  in  the  course  of  the  transportation,  had 
shipped  the  coffee  on  board  of  the  propeller  ''Buffalo,"  one  of  its 
steamers  on  the  lakes.  The  testimony  showed  that  the  steamer 
was  seaworthy,  and  properly  equipped,  and  was  under  the  command 
of  a  competent  and  experienced  master;  but  on  entering  the  harbor 
of  Chicago  in  the  evening,  she  touched  the  bottom,  and  not  answer- 
ing her  helm,  got  aground,  and  during  the  night  which  followed, 
kept  pounding,  and  thus  caused  the  hold  to  fill  with  water.  The 
result  was,  that  the  coffee  on  board  was  so  damaged  as  to  be 
worthless. 

The  bill  of  lading  given  to  the  plaintiff  by  the  transportation  com- 
pany at  New  York  exempted  the  company  from  liability  for  losses 
on  goods  insured  and  losses  occasioned  by  the  "dangers  of  navigation 
on  the  lakes  and  rivers."  The  defence  made  in  the  case  was,  that 
the  loss  of  the  coffee  came  within  this  last  exception. 

Upon  the  trial  the  plaintiff  having  shown  that  the  defendant  had 
the  coffee  for  transportation,  and  that  the  same  was  lost,  the  defend- 
ant then  showed  by  competent  evidence  that  the  loss  was  occasioned 
in  manner  above  stated,  — that  is,  by  one  of  the  "dangers  of  lake 
navigation."  The  plaintiff  then  endeavored  to  prove  that  this  (lun- 
ger and  the  consequent  loss  might  have  been  avoided  by  the  exercise 
of  proper  care  and  skill.  The  defendant  moved  the  court  to  instruct 
the  jury  as  follows :  — 

"If  the  jury  believed  from  the  evidence  that  the  loss  of  the  coffee 
in  controversy  was  within  one  of  the  exceptions  contained  in  the  bil] 


784  CARRIERS    OF    GOODS. 

of  lading  offered  in  evidence,  that  is  to  say,  if  it  was  occasioned  by 
perils  of  navigation  of  the  lakes  and  rivers,  then  the  burden  of 
showing  that  this  loss  might  have  been  avoided  by  the  exercise 
of  proper  care  and  skill  is  upon  the  plaintiff;  then  it  is  for  him  to 
show  that  the  loss  was  the  result  of  negligence." 

The  court  refused  to  give  this  instruction  and  the  defendant  ex- 
cepted, and  at  the  request  of  the  plaintiff,  gave  instead  the  follow- 
ing, to  the  giving  of  which  the  defendant  also  excepted,  viz. :  — 

"The  bill  of  lading  in  this  case  excepts  the  defendant  from  liabil- 
ity, when  the  property  is  not  insured,  from  perils  of  navigation.  It 
is  incumbent  on  the  defendant  to  bring  itself  within  the  exception, 
and  it  is  the  duty  of  the  defendant  to  show  that  it  has  not  been 
guilty  of  negligence." 

The  plaintiff  recovered,  and  the  defendant  brought  the  case  here 
on  writ  of  error. 

Mr.  Justice  Field.  On  the  trial  the  plaintiff  made  out  a  prima 
facie  case  by  producing  the  bill  of  lading,  showing  the  receipt  of  the 
coffee  by  the  company  at  New  York,*  and  the  contract  for  its  trans- 
portation to  Chicago,  and  by  proving  the  arrival  of  the  coffee  at  the 
latter  place  in  the  propeller  "  Brooklyn  "  in  a  ruined  condition,  and  the 
consequent  damages  sustained.  The  company  met  this  prima  facie 
case  by  showing  that  the  loss  was  occasioned  by  one  of  the  dangers 
of  lake  navigation.  These  terms,  "dangers  of  lake  navigation," 
include  all  the  ordinary  perils  which  attend  navigation  on  the  lakes, 
and  among  others,  that  which  arises  from  shallowness  of  the  waters 
at  the  entrance  of  harbors  formed  from  them.  The  plaintiff  then 
introduced  testimony  to  show  that  this  danger,  and  the  consequent 
loss,  might  have  been  avoided  by  the  exercise  of  proper  care  and 
skill  on  the  part  of  the  defendant.  If  the  danger  might  have  been 
thus  avoided,  it  is  plain  that  the  loss  should  be  attributed  to  the 
negligence  and  inattention  of  the  company,  and  it  should  be  held 
liable,  notwithstanding  the  exception  in  the  bill  of  lading.  The 
burden  of  establishing  such  negligence  and  inattention  rested  with 
the  plaintiff,  but  the  court  refused  an  instruction  to  the  jury  to  that 
effect,  prayed  by  the  defendant,  and  instructed  them  that  it  was  the 
duty  of  the  defendant  to  show  that  it  had  not  been  guilty  of  negli- 
gence.    In   this  respect  the   court  erred.1     In   Clark  v.  Barnwell,2 

1  The  plaintiff  further  contends,  "  that  when  a  risk,  for  which  a  common  carrier 
may  be  liable,  is  limited  by  a  special  contract,  the  burden  of  proof  rests  upon  the 
carrier  to  show  not  only  that  the  cause  of  the  loss  was  within  the  terms  of  the  limita- 
tion, but  also  upon  its  own  part  that  there  was  no  negligence."  In  this  we  do  not 
agree  with  him.  It  is  well  settled  that  when  the  liability  of  the  common  carrier  is 
limited  by  a  special  contract,  the  carrier  is  only  liable  for  losses  and  damages  caused 
by  his  own  negligence,  and  the  burden  of  proving  the  negligence  is  on  the  party  who 
alleges  it.  Steamboat  Emily  v.  Carney,  5  Kas.  645  ;  Mo.  Pac.  Rly.  Co.  v.  Haley,  25 
id.  36  ;  Sherman  and  Redfield  on  Negligence,  §  12  ;  Whitworth  v.  Erie  Rly.  Co.,  87 
N.  Y.  413.     Per  Hard,  J.,  in  Kiff  v.  Atchison,  &c.  R.  Co.,  32  Kan.  263. 

2  12  Howard,  272. 


REMEDIES   AS   AGAINST   CARRIER.  735 

the  precise  point  was  involved,  and  the  decision  of  the  court  in  that 
case  is  decisive  of  the  question  in  this.  And  that  decision  rests  on 
principle.  A  peril  of  navigation  having  been  shown  to  exist,  and  to 
have  occasioned  the  loss  which  is  the  subject  of  complaint,  the 
defendant  was  prima  facie  relieved  from  liability,  for  the  loss  was 
thus  brought  within  the  exceptions  of  the  bill  of  lading.  There  was 
no  presumption,  from  the  simple  fact  of  a  loss  occurring  in  this  way, 
that  there  was  any  negligence  on  the  part  of  the  company.  A  pre- 
sumption of  negligence  from  the  simple  occurrence  of  an  accident 
seldom  arises,  except  where  the  accident  proceeds  from  an  act  of  such 
a  character  that,  when  due  care  is  taken  in  its  performance,  no 
injury  ordinarily  ensues  from  it  in  similar  cases,  or  where  it  is 
caused  by  the  mismanagement  or  misconstruction  of  a  thing  over 
which  the  defendant  has  immediate  control,  and  for  the  management 
or  construction  of  which  he  is  responsible.  Thus,  in  Scott  v.  The 
London  and  St.  Catharine  Dock  Company,1  the  plaintiff  was  injured 
by  bags  of  sugar  falling  from  a  crane  in  which  they  were  lowered  to 
the  ground  from  a  warehouse  by  the  defendant,  and  the  court  said, 
"There  must  be  reasonable  evidence  of  negligence;  but  where  the 
thing  is  shown  to  be  under  the  management  of  the  defendant  or  his 
servants,  and  the  accident  is  such  as  in  the  ordinary  course  of  things 
does  not  happen  if  those  who  have  the  management  use  proper  care, 
it  affords  reasonable  evidence,  in  the  absence  of  explanation  by  the 
defendant,  that  the  accident  arose  from  want  of  care." 

So  in  Curtis  v.  The  Rochester  and  Syracuse  Railroad  Company,2 
the  Court  of  Appeals  of  New  York  held  that  the  mere  fact  that 
a  passenger  on  a  railroad  car  was  injured  by  the  train  running  off  a 
switch  was  not  of  itself,  without  proof  of  the  circumstances  under 
which  the  accident  occurred,  presumptive  evidence  of  negligence  on 
the  part  of  the  company.  The  court  said  that  carriers  of  passengers 
were  not  insurers,  and  that  many  injuries  might  occur  to  those  they 
transported  for  which  they  were  not  responsible;  but  as  railroad 
companies  were  bound  to  keep  their  roads,  carriages,  and  all  appara- 
tus employed  in  working  them,  free  from  any  defect  which  the 
utmost  knowledge,  skill,  and  vigilance  could  discover  or  prevent,  if 
it  appeared  that  an  accident  was  caused  by  any  deficiency  in  the 
road  itself,  the  cars,  or  any  portion  of  the  apparatus  belonging  to  the 
company  and  used  in  connection  with  its  business,  a  presumption  of 
negligence  on  the  part  of  those  whose  duty  it  was  to  see  that  every- 
thing was  in  order  immediately  arose,  it  being  extremely  unlikely 
that  any  defect  should  exist  of  so  hidden  a  nature  that  no  degree  of 
skill  or  care  could  have  seen  or  discovered  it. 

It  is  plain  that  the  grounds  stated  in  these  cases,  upon  which  a 
presumption  of  negligence  arises  when  an  accident  has  occurred, 
have  no  application  to  the  case  at  bar.  The  grounding  of  the  pro- 
peller and  the  consequent  loss  of  the  coffee  may  have  been  consistent 

l  3  Hurlstone  &  Coltman,  596.  2  18  New  York,  543. 


786  CAKRIEES   OF   GOODS. 

with  the  highest  care  and  skill  of  the  master,  or  it  may  have  resulted 
from  his  negligence  and  inattention.  The  accident  itself,  irrespec- 
tive of  the  circumstances,  furnished  no  ground  for  any  presumption 
one  way  or  the  other.  If,  therefore,  the  establishment  of  the  neg- 
ligence of  the  defendant  was  material  to  the  recovery,  the  burden  of 
proof  rested  upon  the  plaintiff. 

For  the  error  in  the  refusal  of  the  instruction  prayed,  and  in  the 
instruction  given,  the  judgment  must  be  reversed,  and  the  cause 
remanded  for  a  new  trial. 


SHRIVER   v.    SIOUX   CITY   &   ST.    PAUL   R.  CO. 
24  Minn.  506.     1878. 

Appeal  by  defendant  from  a  judgment  of  the  District  Court  for 
Nobles  County. 

Gilfillan,  C.  J.  At  Tiffin,  Ohio,  the  plaintiff  shipped  with  the 
Baltimore  &  Ohio  Railroad  Company  two  marble  slabs,  packed  in  a 
close  box,  consigned  to  herself  at  Worthington,  in  this  State,  and 
upon  the  requirement  of  the  company  executed  an  agreement  releas- 
ing the  company,  and  each  and  every  other  company  over  whose  line 
the  goods  might  pass  to  their  destination,  from  any  and  all  damages 
that  might  arise  from  certain  specified  causes,  and  "from  any  cause 
not  arising  from  gross  negligence  of  the  said  company  or  companies, 
its  or  their  officers  or  agents."  The  slabs  passed  to  their  destination 
over  the  Baltimore  &  Ohio,  and  two  other  railroads,  to  St.  James, 
in  this  State,  and  over  the  road  of  the  defendant  from  St.  James  to 
Worthington,  and  when  delivered  by  the  defendant  to  the  plaintiff, 
at  Worthington,  were  found  to  have  been  broken.  This  action  was 
brought  to  recover  damages  for  the  injury. 

At  the  trial  an  objection  was  made  to  a  question  to  a  witness 
accustomed  to  packing  marbles  for  transportation,  calling  for  his 
opinion  upon  whether  these  marbles  were  properly  packed.  It  was 
a  case  for  expert  testimony,  and  the  objection  was  properly 
overruled. 

The  court  charged  the  jury,  in  substance,  that  common  carriers  of 
goods  cannot,  by  contract,  absolve  themselves  from  the  consequences 
of  their  own  negligence,  and  that,  the  contract  proved,  could  not  be 
allowed  to  have  that  operation;  that  the  burden  of  proof  to  show 
ordinary  care  was  on  the  defendant,  and  that  the  jury  might  presume 
negligence  from  the  fact  that  the  goods  were  found  to  be  damaged 
when  delivered  to  plaintiff  at  Worthington. 

Defendant  excepted  to  these  propositions  in  the  charge,  and  re- 
quested an  instruction  that  the  contract  was  reasonable,  and  that  the 
plaintiff  coidd  not  recover  without  gross  negligence  of  the  defendant, 


REMEDIES.  AS   AGAINST   CARRIER.  737 

which  the  court  declined.  Defendant  also  requested  an  instruction 
that  if  the  marble  was  so  improperly  packed  by  the  plaintiff  that  it 
could  not  be  handled  with  reasonable  care  in  the  transportation 
without  injury  thereto,  the  plaintiff  cannot  recover.  The  court  gave 
this  instruction  with  the  qualification,  "unless  the  injury  happened 
independent  of  the  defects  in  the  packing."  To  this  defendant 
excepted.  The  qualification  was  correct,  for  while  plaintiff  could 
not  recover  for  an  injury  to  which  her  negligence  contributed,  no 
negligence  of  hers  unconnected  with  the  cause  of  the  injury  could 
defeat  a  recovery. 

The  charge  presents  the  question  of  the  power  of  a  common  carrier 
of  goods  to  limit  by  contract  his  liability  as  it  existed  at  common 
law.  It  is,  perhaps,  to  be  regretted  that  courts  have  allowed  any 
relaxation  of  the  common-law  rule  of  liability.  But  that  a  common 
carrier  may  by  special  agreement  qualify  to  some  extent  his  liability 
is  too  well  settled  by  decisions  to  be  denied.  How  far  he  may  do  it 
the  authorities  are  not  entirely  agreed.  The  greater  number  of 
authorities  in  the  United  States  hold,  and,  since  Christenson  v. 
American  Express  Co.,  15  Minn.  270,  it  is  to  be  taken  as  the  settled 
doctrine  of  this  court,  that  a  common  carrier  of  goods  shall  not  be 
permitted  to  exonerate  himself  by  contract  from  liability  for  his 
own  negligence,  or  the  negligence  of  the  agents  whom  he  employs  to 
perform  the  transportation.  The  contract  in  question  seeks  to 
exonerate  the  carrier  from  liability  for  all  except  gross  negligence, 
and  is  obnoxious  to  the  rule.  The  charge  of  the  court  upon  it,  and 
upon  the  rule,  was  correct. 

When  there  is  a  contract  limiting  the  liability  to  injuries  caused 
by  the  negligence  of  the  carrier,  which  party,  the  owner  or  the  car- 
rier, must  show  from  what  cause  the  injury  or  loss  arose,  is  a  ques- 
tion  upon  which  there   is   some  conflict  of  authorities.     Harris  v. 
Packwood,  3  Taunt.   264  [456];   Marsh  v.  Home,  5  B.  &  C.  322; 
French  v.  Buffalo,  N.  Y.  &  E.  R,  Co.,  43  X.  Y.  108;  Sager  v.  S.  & 
P.  &  E.  R.  Co.,  31  Me.  228,  and  Kalhnan  v.  United  States  Express 
Co.,  3  Kan.  205,  affirm  the  rule,  without  giving  any  reason  for  it,  to 
be  that  the  burden  is  on  the  owner.     On  the  other  hand,  in  2  Greenl. 
Ev.  §  219,  the  rule  is  stated,  "and  if  the  acceptance  of  the  goods 
were  special,  the  burden  of  proof  is  still  on  the  carrier  to  show  not 
only  that  the  cause  of  the  loss  was  within  the  terms  of  the  exception, 
but  also  that  there  was  on  his  part  no  negligence  or  want  of  due 
care."     And  this  rule  is  followed  in  Swindler  v.  Hillard,  2  Rich. 
(S.  C.)  286;  Baker  v.  Brinson,  9  Rich.   201;  Davidson  v.  Graham, 
2  Ohio  St.  131;  Graham  v.  Davis,  4  Ohio  St.  362;  and  Whitesides 
v.  Russell,  8  W.  &  S.  44.     The  latter  cases  are  most  consistent  with 
principle ;  for,  where  there  is  no  contract,  there  has  never,  so  far  as 
we   know,  been  any  question  that  the  carrier,  to  escape  liability, 
must  show  the  case  to  have  occurred  from  one  of  the  causes  which 
the  law  excepts  from  his  liability.    No  good  reason  can  be  given  why 


788  CARRIERS    OF   GOODS. 

the  burden  should  be  changed  because  he  has  by  contract  added  other 
exceptions  to  those  made  by  the  law.  As  to  where  the  burden  of 
proof  was,  the  charge  was  correct. 

There  was  some  evidence  from  which  the  jury  might  find  that  when 
delivered  to  the  B.  &  0.  R.  Co.,  the  slabs  were  in  good  condition. 
Between  that  company  and  the  defendant  there  were  two  interme- 
diate carriers.  There  was  no  direct  evidence  showing  upon  what 
part  of  the  line,  composed  of  the  four  railroads,  or  in  the  hands  of 
which  of  the  four  carriers,  the  slabs  were  broken;  and  there  was  noth- 
ing to  charge  the  breaking  upon  the  defendant,  unless  the  jury  might 
presume  that  the  slabs  continued,  until  they  came  into  the  hands  of 
defendant,  in  the  same  condition  as  when  delivered  to  the  B.  &  0. 
R.  Co.  That,  where  goods  pass  over  a  line  of  several  different  car- 
riers, the  jury,  there  being  no  direct  evidence  to  the  contrary,  may 
presume  that  they  reached  the  last  carrier  in  the  same  condition  as 
when  delivered  to  the  first,  as  discussed  at  length,  and  affirmed,  in 
Smith  v.  The  New  York  Central  R.  Co.,  43  Barb.  225,  and  Laughlin 
v.  The  Chicago  &  Northwestern  R.  Co.,  28  Wis.  204,  — the  only  cases 
we  find  in  which  the  point  is  considered.  Although  the  question  is 
not  free  from  doubt,  we  think  the  conclusion  reached  by  the  courts 
in  these  two  cases  correct.  It  is  a  rule  of  evidence  that  things  once 
proved  to  have  existed  in  a  particular  state  are  presumed  to  have 
continued  in  that  state  until  the  contrary  is  shown ;  but  it  is  not  a 
rule  of  universal  application.  The  probabilities  in  a  particular  case 
may  prevent  its  application.  The  courts  in  New  York  and  Wiscon- 
sin, there  being  nothing  in  the  case  to  render  the  presumption  improb- 
able, apply  it  to  a  case  like  this,  mainly  because  the  carrier  may 
ordinarily  know,  while  ordinarily  the  owner  cannot  know,  what 
happens  to  the  goods,  and  what  care  is  taken  of  them  in  their  pas- 
sage, and  if  they  are  lost  or  injured,  when  and  how  it  occurred,  and 
in  what  condition  they  came  from  the  hands  of  a  prior  carrier  into 
his.  It  is  in  part  because  of  his  superior  ability  to  furnish  the'proof 
that  the  onus  of  showing  the  cause  of  a  loss  or  injury  to  be  within 
the  exceptions  to  his  liability  is  imposed  on  the  carrier.  For  the 
same  reason  we  think  that  ordinarily  a  subsequent  carrier  should  be 
required  to  show  in  what  condition  goods  came  into  his  hands,  or 
that  their  condition  did  not  change  while  they  were  in  keeping. 
The  rule  may  seem  hard,  and  so  may  seem  the  rule  regulating  the 
liability  of  the  carrier,  and  fixing  the  burden  of  proof  on  him ;  but 
public  policy,  and  the  due  protection  of  owners,  require  that  common 
carriers  should  be  held  to  a  severe  liability. 

Judgment  affirmed. 


REMEDIES    AS   AGAINST    CARRIER.  759 


MARQUETTE,    HOUGHTON  &   ONTONAGON   R.  CO.  v. 

P.  KIRKWOOD. 

45  Mich.  51.     1880. 

Case.     Defendants  bring  error.     Reversed. 

Campbell,  J.  Defendants  in  error  sued  plaintiffs  in  error  and 
recovered  damages  for  breakage  of  two  marble  soda  fountains,  taken 
by  the  railroad  agents  at  Marquette  and  carried,  one  to  Negaunee, 
and  one  to  Ishpeming.  The  fountains  were  packed  in  New  York 
and  forwarded  by  the  New  York  Central  Railroad,  and  by  that  com- 
pany, as  is  claimed,  turned  over  at  Buffalo  to  the  Lake  Superior 
Transit  Company,  which  is  a  connecting  line.  The  Transit  Com- 
pany delivered  the  property  at  Marquette  to  the  plaintiff  in  error, 
with  which  it  had  no  business  arrangements,  but  which  was  the 
proper  carrier  from  Marquette  to  the  destination  of  the  articles. 
The  boxes  which  were  marked  to  be  handled  with  care  were  then 
apparently  sound,  except  that  a  handle  of  one,  consisting  of  a  strip 
of  board,  was  injured.  Each  box,  when  opened  at  its  destination, 
was  found  to  contain  a  fountain  of  which  some  of  the  marble  was 
broken. 

The  testimony  for  plaintiffs,  as  well  as  that  for  defendants,  indi- 
cates that  there  was  no  appearance  in  either  package  which  would 
indicate  damages  at  any  time,  except  the  broken  handle.  There 
was  no  evidence  of  neglect  on  the  part  of  the  railroad  company,  and 
there  was  affirmative  evidence  to  the  contrary.  It  was  conceded  that 
the  railroad  company  had  no  means  of  inspecting  the  property. 
Under  these  circumstances  the  Circuit  Court  told  the  jury  that  if  the 
goods  were  delivered  in  New  York  in  good  order  to  the  first  carrier, 
they  would  have  a  right  to  infer  that  they  continued  so  when  received 
by  defendants  below,  unless  evidence  was  given  which  showed  the 
contrary.  The  court  also  told  the  jury  that  if  they  found  it  neces- 
sary to  consider  the  testimony  given  by  the  agents  and  employees 
of  the  railroad,  the}'  should  bear  in  mind  the  interest  they  have  in 
protecting  their  company  and  shielding  themselves  from  blame.  In 
doing  this  a  very  similar  statement  was  made  concerning  the  testi- 
mony of  the  packers  in  New  York. 

While  there  may  appear  on  the  trial  on  direct  or  cross-examination 
such  bias  or  behavior  as  would  authorize  comment  by  counsel  to  the 
jury,  we  think  it  is  not  within  the  province  of  a  court  to  instruct  a 
jury,  or  suggest  to  them,  that  any  suspicion  attaches  to  the  testi- 
mony of  agents  or  servants  of  a  corporation  or  individual  by  reason 
of  their  employment,  or  that  they  have  any  such  interest  as  requires 
them  to  be  dealt  with  differently  from  other  witnesses.     Even  inter' 


790  CAERIEKS   OF    GOODS. 

ested  witnesses  are  now  let  in  by  statute,  and  the  policy  pointed  out 
by  the  statute  indicates  that  the  old  presumption  that  interest  will 
necessarily  or  probably  lead  to  falsehood,  was  unjust  and  untrue. 
But  none  of  these  witnesses  could  have  been  excluded  under  the 
most  rigid  common-law  rules ;  and  whatever  license  of  criticism  may 
be  allowed  to  counsel,  it  was  not,  we  think,  legally  justifiable  to 
invite  the  jury  to  look  upon  such  testimony  with  disfavor.  There 
is  no  legal  presumption  against  it. 

Upon  the  other  question  we  think  that  the  ruling  was  also  wrong. 
The  case  comes  directly  within  the  principle  laid  down  by  this 
court  in  M.,  H.  &  0.  K.  R.  v.  Langton,  32  Mich.  251,  where  it  was 
sought  to  hold  these  same  parties  responsible  for  delivering  hay  in  a 
damaged  condition,  by  showing  that  it  was  in  good  condition  when 
delivered  to  a  previous  carrier  at  Sheboygan.  In  that  case,  as  in 
this,  the  court  below  held  that  such  a  showing  shifted  the  burden  of 
proof  upon  the  railroad  company,  and  he  held  that  this  was  error, 
and  that  the  plaintiff  was  bound  to  show  affirmatively  that  the  hay 
was  delivered  in  good  order  at  Marquette  to  the  railroad. 

We  think  this  rule  is  just,  and  are  not  at  all  disposed  to  depart 
from  it.  A  carrier  has  no  means  in  a  case  like  this  of  opening  pack- 
ages and  examining  their  contents.  Unless  there  is  some  outward 
token  which  is  suspicious ,  he  may  and  must  take  the  articles  and 
forward  them  on  the  usual  terms.  He  is  bound  in  law  to  deliver 
them  in  the  condition  in  which  he  receives  them.  But  there  can  be 
no  further  responsibility;  and  any  rule  of  law  which  would  make 
him  responsible  actually  or  presumptively  for  the  conduct  of  pre- 
vious independent  carriers,  would  be  grossly  unfair,  and  subject 
him  to  losses  against  which  he  could  have  no  protection.  He  has 
nothing  to  do  with  any  of  the  previous  dealings  with  the  property, 
and  no  means  of  informing  himself  about  them.  We  cannot  see  how 
this  case  is  different  from  what  it  would  have  been  if  the  plaintiffs 
themselves  had  delivered  the  boxes  to  the  company  at  Marquette. 
In  law  the  Transit  Company  acted  merely  as  plaintiffs'  agent  in  turn- 
ing them  over,  and  cannot  be  treated  as  representing  the  Marquette 
Railroad  Company  for  any  purpose  without  reversing  the  whole 
order  of  business.     Fitch  v.  Newberry,  1  Doug.  (Mich.)  1. 

In  view  of  our  previous  decision  we  should  not  feel  justified  in 
going  into  this  question  at  all,  if  it  did  not  seem  to  be  imagined  that 
if  the  case  of  Laughlin  v.  Railway,  28  Wis.  204,  had  been  fully 
called  to  our  attention  it  might  have  changed  our  views.  The  other 
cases  cited  on  the  argument,  except  one  from  North  Carolina  follow- 
ing it,  do  not  have  any  particular  bearing.  In  that  case  the  court, 
treating  it  as  a  question  not  directly  covered  by  previous  precedents, 
held  that  it  would  be  more  convenient  and  less  onerous  to  the  owners 
of  goods  to  adopt  such  a  rule  as  is  contended  for  by  the  plaintiffs 
below.  The  only  ground  discovered  for  it  was  the  presumption  that 
things  remain  as  they  once  have  been  shown  to  exist.     The  cases 


REMEDIES.  AS    AGAINST    CARRIF.H.  791 

cited  as  resting  on  that  presumption  were  not  at  all  in  point  except 
by  some  assumed  analogy. 

We  certainly  have  the  highest  respect  for  the  decisions  of  the 
court  which  so  decided.  But  we  cannot  convince  ourselves  that  the 
decision  is  well  founded  on  legal  analogies,  or  correct  in  principle. 

The  presumption  that  things  remain  unchanged  applies  in  such  a 
case  as  the  present  just  as  forcibly  backward  as  forward.  It  may 
quite  as  reasonably  be  presumed  that  the  goods  were  delivered  at 
Negaunee  and  Ishpeming  in  the  condition  in  which  they  were 
received  at  Marquette,  as  that  they  came  to  Marquette  as  they  left 
New  York.  The  goods  were  certainly  damaged  when  they  reached 
their  destination.  To  assume  that  they  were  damaged  after  they 
left  Marquette,  and  not  on  any  of  their  previous  removals,  is  to 
make  a  very  arbitrary  assumption  which  has  no  more  foundation  in 
XJrobability  than  any  other.  If  it  were  worth  while  to  enlarge  on 
what  is  confessedly  a  presumption  not  resting  on  any  sure  foundation 
in  experience,  it  might  very  well  be  questioned  whether  such  a  pre- 
sumption is  admissible  at  all  as  applied  to  things  the  position  of 
which  does  not  remain  either  fixed  in  place  or  free  from  disturbance 
by  human  agencies.  But  we  need  not  enlarge  on  this  because  the 
nature  of  the  suit  itself  raises  different  presumptions  which  are  well 
recognized. 

This  suit  is  based  on  the  negligence  of  the  carrier.  It  can  only  be 
maintained  on  the  theory  that  the  carrier  or  its  servants  did  not 
properly  care  for  or  handle  the  goods.  There  is  no  rule  better 
established  or  more  righteous  than  the  rule  that  any  one  who  claims 
a  right  to  damages  for  negligence  must  prove  it.  The  presumption 
that  a  party  sued  has  done  no  wrong  must  prevail  till  wrong  is 
shown.  A  carrier's  obligation  to  carry  safely  what  he  received 
safely  is  independent  of  care  or  negligence.  But  in  the  absence  of 
proof  that  there  was  property  delivered  to  him,  or  safely  delivered 
to  him,  any  presumption  that  he  received  it  is  one  which  goes  beyond 
and  behind  the  duty  of  a  carrier  and  enters  into  the  origin  and 
making  of  the  contract.  Until  such  property  comes  into  his  hands 
there  is  nothing  for  a  contract  to  act  upon,  and  the  contract  is  not 
proved  until  that  is  proved. 

In  a  somewhat  similar  case,  Muddle  v.  Stride,  9  C.  &  P.  380,  Lord 
Denman  told  the  jury  that  if  it  were  left  in  doubt  what  the  cause  of 
damages  was,  the  defendants  were  entitled  to  their  verdict,  "  because 
you  are  to  see  clearly  that  they  were  guilty  of  negligence  before  you 
can  find  your  verdict  against  them.  If  it  turns  out,  in  the  consider- 
ation of  the  case,  that  the  injury  may  as  well  be  attributable  to  the 
one  cause  as  the  other,  then  also  the  defendants  will  not  be  liable  for 
negligence." 

In  Gilbert  v.  Dale,  5  Ad.  &  El.  543,  the  same  rule  was  laid  down. 
and  it  was  held  that  there  could  be  no  recovery  without  proof,  and 
that  the  presumption  could  not  be  raised  without  foundation.     And 


792 


CARRIERS    OF    GOODS. 


in  Midland  Railway  v.  Bromley,  17  Q.  B.  372,  the  same  principle 
was  affirmed,  and  it  was  held  that  if  the  evidence  was  as  consistent 
with  the  claim  of  one  side  as  with  that  of  the  other,  the  plaintiff 
must  fail,  because  he  must  make  his  proof  preponderate. 

There  is  no  reason  for  presuming  that  the  Marquette  Railroad  did 
the  mischief,  that  would  not  arise  with  equal  force,  according  to  the 
Wisconsin  decision,  against  either  of  the  previous  carriers  had  they 
been  sued  instead.  Had  the  first  carrier  been  sued,  it  would  unques- 
tionably have  been  bound  to  show  a  safe  transit,  because  that  carrier 
received  the  articles  in  actual  good  order.  A  presumption  that  has 
no  better  foundation,  and  that  applies  to  one  as  readily  as  to 
another,  ought  not  to  prevail  to  raise  a  further  presumption  of  negli- 
gence without  proof. 

The  judgment  must  be  reversed  with  costs  and  a  new  trial  granted. 


MONTGOMERY    &   EUEAULA   R.    CO.    v.    CULVER. 

75  Ala.  578.     1884. 

Clopton,  J.  .  .  .  The  plaintiff,  in  April,  1883,  procured  from  the 
Mobile  &  Girard  Railroad  Company  through  tickets  for  the  trans- 
portation of  himself  and  members  of  his  family,  and  through  checks 
for  the  transportation  of  his  baggage  from  Columbus,  Georgia,  to 
Birmingham,  Alabama,  over  the  respective  roads  of  the  Mobile  & 
Girard  Railroad  Company,  of  the  defendant,  and  of  the  South  and 
North  Alabama  Railroad  Company,  which  were  connecting  lines,  the 
defendant's  being  the  intermediate  road.  When  the  baggage  reached 
Union  Springs,  the  place  at  which  the  road  of  defendant  connects 
with  the  road  of  the  Mobile  &  Girard  Company,  it  was  in  good 
condition;  but  when  it  was  delivered  to  the  plaintiff  at  Birmingham, 
one  of  the  tvuuks  had  been  broken,  and  the  contents  abstracted. 
On  these  facts,  the  court  instructed  the  jury,  if  the  trunk  was  deliv- 
ered to  and  received  by  the  defendant  in  good  order,  and  when  it 
was  delivered  to  the  plaintiff  at  Birmingham,  it  was  badly  broken 
and  its  contents  taken  out,  it  devolved  on  the  defendants  to  show 
that  it  was  delivered  in  good  condition  to  the  South  and  North  Ala- 
bama Railroad  Company ;  and  if  it  failed  to  show  this,  the  plaintiff 
is  entitled  to  recover.  There  was  no  evidence,  other  than  the  trunk 
was  in  good  order  at  Union  Springs,  showing  when  or  where  it  was 
damaged,  or  what  was  its  condition  when  delivered  by  the  defendant 
at  Montgomery  to  the  South  and  North  Alabama  Railroad  Company. 
The  instruction  presents  the  direct  question:  Where  baggage,  for 
the  transportation  of  which  over  three  connecting  roads,  operated 
by  separate  and  independent  companies,  through  checks  have  been 


EEMEDIES.  AS    AGAINST    CARRIER.  793 

issued  by  one  of  the  terminal  roads,  is  found  damaged  when  delivered 
at   the   place   of   destination  by  the  other  terminal  road,  does  the 
burden  of  proof,  in  the  absence  of  any  special  contract  or  arrange- 
ment between  the  companies,  rest  on  the  intermediate  road  to  show 
not  only  a  delivery  to  the  connecting  terminal  road,  but  also  that 
the  baggage  was  in  good  condition  when  so  delivered,  it  being  shown 
to  have  been  in  good  order  when  received  by  the  intermediate  road? 
While  the  transportation  of  baggage,  as  such,  is  incidental  to  the 
carriage  of  the  owner  as  a  passenger,  and  while  the  railroad  com- 
panies are  only  responsible  to  passengers  for  injuries  sustained  from 
some  neglect  or  wrong,  they  are  liable  for  the  safe  delivery  of  their 
baggage  in  the  same  manner  and  to  the  same  extent  as  the  carriers 
of  merchandise.     2  Rorer  R.  R.  991.     The  question  will  therefore 
have  to  be  determined  on  the  same  principles  as  if  the  baggage  had 
been  shipped  as  freight  over  the  connecting  roads.     If  the  defendant 
were  both  the  receiving  and  delivering  carrier,  or  liable  for  the  safe 
delivery  of  the  baggage  at  the  point  of  destination,  proof  that  it  was 
in  good  condition  when  received,  and  in  a  damaged  condition  when 
delivered,  would  cast  on  the  defendant  the  onus  of  showing  that  the 
damage  was  occasioned  by  some  cause,  which  excerjts  from  the  abso- 
lute liability  of  safe  delivery. 

An  arrangement,  express  or  implied,  between  companies  operating 
several  roads,  by  which  either  terminal  road  can  issue  through 
tickets  and  through  checks  for  baggage,  each  being  entitled  only  to 
the  fare  for  transporting  over  its  own  line,  does  not  render  each  one 
liable  for  the  loss  or  damage  sustained  on  any  of  the  roads.  Ells- 
worth v.  Tartt,  26  Ala.  733.  Such  arrangement  is  not  operative  to 
impose  on  the  intermediate  carrier  the  absolute  liability  of  safe 
delivery.  M.  &  W.  P.  R.  Co.  v.  Moore,  51  Ala.  394.  An  arrange- 
ment, such  as  the  one  shown  by  the  evidence^  imposed  on  the  clef  end- 
ant  the  duty  to  receive  from  the  terminal  road,  safely  carry  over  its 
own  road,  and  deliver  to  the  other  connecting  terminal  road.  In- 
surance Co.  v.  Railroad  Co.,  104  U.  S.  146.  The  receiving  terminal 
road  has  no  power  or  authority,  in  the  absence  of  a  special  contract, 
to  bind  the  intermediate  road  to  transport  beyond  its  terminus. 
When  the  goods  have  been  safely  carried  to  its  terminus,  its  duty 
as  a  carrier  ceases,  and  the  duty  of  forwarding  arises. 

In  England,  the  courts  generally  have  held  that  the  duty  and 
obligation  of  the  carrier,  who  first  receives,  continues  through  the 
entire  route  of  transportation.  In  this  country  there  has  existed  a 
diversity  of  opinion.  In  Railroad  Co.  v.  Manufacturing  Co.,  16 
Wall.  318  [642],  Mr.  Justice  Davis,  while  regretting  this  diversity 
of  opinion  as  unfortunate  for  the  interests  of  commerce,  says:  "But 
the  rule  that  holds  the  carrier  only  liable  to  the  extent  of  his  own 
route,  and  for  the  safe  storage  and  delivery  to  the  next  carrier,  is  in 
itself  so  just  and  reasonable  that  we  do  not  hesitate  to  give  it  our 
sanction."     In  Lindley  v.  Railroad  Co.,  88  N.  C.  547,  it  was  held, 


794  CARRIERS   OF   GOODS. 

that  in  the  absence  of  explanation  as  to  how  or  where  the  loss  or 
damage  occurred,  or  which  of  the  roads  on  the  route  is  culpable,  the 
receiving  carrier  must  be  held  responsible  for  the  injury,  and  that 
the  non-delivery,   or   delivery  in  bad  condition  by  the  last  of  the 
connecting  lines,  is  prima  facie  evidence  of  default  in  the  receiving 
carrier.     In  Mobile  &  Giiard  R.  Co.  v.  Copeland,  63  Ala.  219,  it  is 
said :  "  It  must  be  regarded  as  settled,  that  a  carrier,  though  a  cor- 
poration, chartered  by  the  laws  of  a  particular  State,  having  a  known 
and  defined  line  of  transportation,  may  contract  for  the  safe  carriage 
and  delivery  of  goods  to  a  point  beyond  the  terminus  of  his  line, 
within  or  without  the  State;  and  if  such  a  contract  is  made,  all  con- 
necting lines  stand  in  the  relation  of  his  agents,  for  whose  default 
he  is  responsible  to  the  owner  of  the  goods ;  "  and  it  was  held,  that 
in  such  case  it  was  the  known  and  established  duty  of  the  carrier  to 
ieliver  them  at  that  place,  and  to  the  person  who  has  the  right  to 
receive  them.     This  rule  is  conceded,  where  the  contract  is  for  de- 
livery beyond  the  terminus  of  the  line;  but  the  special  agreement 
in  this  case  was,  that  the  receiving  carrier  would  safely  transport 
the  baggage  to  Union  Springs  and  deliver  it  in  good  condition  to  the 
defendant,  the  next  connecting  road.     When  this  was  done,  the  duty 
and  responsibility  of  the  receiving  carrier  were  at  an  end.     In  case 
of  a  non-delivery  at  the  point  of  destination,  or  a  total  loss,  the  lia- 
bility is  prima  facie  on  the  receiving  carrier,  and  casts  on  him  the 
onus  of  showing  a  delivery  in  good  condition  to  the  next  connecting 
road.     The  expression  in  S.  &  N.  R.  Co.   v.  Wood,  71  Ala.  215,  if 
otherwise   understood,  are  explained  and  modified   as  here  stated. 
In  case  of  delivery  in  bad  order  by  the  last  carrier,  the  presumption 
against  the  first  carrier  does  not  arise. 

A  different  rule  applies  in  the  case  of  the  discharging  or  deliver- 
ing carrier.  From  the  necessities  of  trade  and  commerce,  or  of 
successful  competition,  or  from  other  causes,  it  has  become  common 
to  establish  long  routes  of  transportation  by  successive  and  connect- 
ing roads.  Under  such  circumstances  it  would  generally  be  difficult 
and  oftentimes  impossible  for  the  owner  to  show  on  which  road  they 
were  injured.  One  of  the  roads  is  certainly  responsible;  and  the 
last  carrier  has  the  means  of  showing  the  condition  of  the  goods 
when  received  by  him.  The  safety  and  protection  of  the  commercial 
and  travelling  public  require  the  recognition  of  the  presumption,  in 
the  absence  of  evidence,  that  the  goods  continued  in  the  same  condi- 
tion as  when  received  by  the  first  carrier,  unless  it  may  be  excep- 
tional goods  of  a  perishable  nature,  and  casts  on  the  discharging 
carrier,  who  delivers  them  in  a  damaged  condition,  the  burden  of 
showing  their  condition  when  received  by  him.  It  has  been  held  in 
some  cases  that  no  such  presumption  arises,  but  the  rule  we  approve 
is  ably  and  elaborately  considered  and  sustained  in  the  following 
cases:  Laughlin  v.  C.  &  N".  Ry.  Co.,  28  Wis.  204;  Smith  v.  N.  Y. 
Cent.  R.  Co.,  43  Barb.  225.     This  presumption  harmonizes  with  the 


REMEDIES  -AS    AGAINST    CARRIER.  795 

spirit,  and  promotes  the  policy  of  the  statute,  defining  the  duty  and 
liability  of  common  carriers  in  respect  to  the  reception  of  goods  foi 
transportation,  and  their  delivery.     Code  of  1876,  §  2139. 

No  case  has  been  cited  to  our  attention,  and  we  have  found  none 
which  clearly  and  expressly  determines  the  rules  of  presumption  in 
an  action  against  the  intermediate  carrier.  The  case  of  Lindley  v. 
R.  Co.,  88  N1.  C,  supra,  has  been  mentioned  as  sustaining  the  rule 
that  delivery  in  bad  condition  by  the  last  of  successive  lines  is  prima 
facie  evidence  of  default  in  the  intermediate  line ;  but  an  examina- 
tion of  the  opinion  shows  that  the  defendant,  the  Richmond  & 
Danville  Railroad  Company,  was  managing  and  operating  the  road 
that  received  the  freight,  with  other  connecting  roads,  under  the 
general  name  of  the  Piedmont  Air-Line  Railway,  and  was  treated 
and  regarded  as  the  first  or  receiving  carrier.  There  is  no  question 
of  the  liability  of  an  intermediate  carrier  for  a  loss  or  injuryoccur- 
ring  on  its  own  road.     Chi.  &  R.  I.  R.  Co.  v.  Fahey,  52  111.  81. 

Though  the  intermediate  carrier  occupies  to  some  extent  relations 
different  from  those  of  the  first  and  last  carriers,  the  principles 
applicable  to  them,  and  to  carriers  in  general,  will  serve  to  elucidate 
the  question  we  are  considering. 

When  goods  are  received  by  a  common  carrier  for  transportation, 
and  are  lost  or  damaged  while  in  custody,  the  presumption  is,  that 
it  was  occasioned  by  his  default;  but  the  owner  must  offer  some 
evidence  tending  to  show  a  non-delivery  or  delivery  in  a  damaged 
condition,  —  in  other  words,  some  evidence  of  the  loss  or  injury 
while  in  the  custody  of  the  carrier.  Proof  of  the  mere  reception  of 
goods  by  a  carrier,  and  of  their  condition  when  received,  without 
more,  does  not  create  the  presumption  of  loss  or  damage.  S.  &  X. 
Ala.  R.  Co.  v.  Wood,  71  Ala.  215,  supra.  We  have  said  that  the 
duty  of  the  intermediate  carrier  is  to  transport  safely  the  goods  to 
his  terminus,  and  deliver  in  the  same  condition  in  which  they  were 
received  to  the  next  connecting  line.  A  delivery,  in  such  case,  to 
the  next  connecting  line  is  tantamount  to,  and  must  be  governed  by, 
the  same  rules  as  a  delivery  to  the  consignee,  where  the  goods  are  to 
be  so  delivered  at  the  terminus  of  the  line  of  the  intermediate  car- 
rier. Had  the  contract  of  the  defendant  been  to  transport  the  bag- 
gage to  Montgomery,  the  terminus  of  the  road,  to  be  there  delivered 
to  the  plaintiff,  proof  of  the  reception  of  the  baggage,  in  good  order, 
by  the  defendant,  and  a  delivery  to  the  plaintiff  in  apparently  like 
order,  though  it  were  subsequently  discovered  it  had  been  damaged, 
would  not,  without  more,  cast  on  defendant  the  burden  of  showing 
it  was  in  good  condition  when  delivered.  The  plaintiff  must  intro- 
duce some  evidence  of  the  damaged  condition  of  the  goods  at  the 
time  of  delivery.  On  like  principles,  when  the  baggage  was  deliv- 
ered by  the  defendant  to,  and  received  by,  the  next  connecting  road, 
proof  that  it  was  in  a  damaged  condition  when  delivered  by  the  last 
carrier  does  not  operate,  in  the  absence  of  other  evidence,  to  cast  on 


796  CARRIERS    OF   GOODS. 

the   intermediate  carrier  the  onus  of  showing  that  it  was  in  good 
condition  when  delivered  to  the  next  connecting  road. 

We  have  shown  that  when  goods  are  received  in  good  condition  by 
the  first  carrier,  to  be  transported  by  successive  and  connecting 
lines,  the  presumption  is  they  continue  in  the  same  condition  until 
the  contrary  is  made  to  appear.  This  presumption  is  indulged  to 
place  a  prima  facie  liability  on  the  carrier  who  delivers  the  goods  in 
bad  order,  and  who  knows  their  condition  when  received.  To  hold 
that  a  delivery  in  bad  order  by  the  last  carrier  raises  also  the  pre- 
sumption of  default  in  the  intermediate  carrier  will  present  the 
anomaly  of  two  inconsistent  legal  presumptions,  —  that  the  same 
damage  was  occasioned  by  the  default  of  the  last  carrier,  and  the 
intermediate  carrier  while  the  goods  were  in  their  respective  cus- 
tody at  different  times. 

Were  there  no  evidence  of  a  delivery  to  the  next  connecting  road 
by  the  defendant,  who  had  received  the  baggage,  or  evidence  that  it 
was  in  bad  order  when  delivered,  the  onus  would  be  on  the  defend- 
ant to  show  that  the  loss  or  injury  was  occasioned  by  some  cause 
which  exempted  from  liability.  But  it  appearing  from  the  evidence 
that  the  trunk  was  delivered  by  the  last  carrier  to  the  plaintiff  — 
thereby  making  manifest  a  delivery  by  the  defendant  to  such  carrier, 
if  the  plaintiff  would  hold  the  defendant  liable  for  the  damage,  he 
must  offer  some  evidence  showing  the  condition  of  the  trunk  at  the 
time  of  delivery  by  the  defendant. 

A  presumption  should  be  the  natural,  usual,  and  probable  infer- 
ence from  the  facts  proved.  A  duty  having  been  performed,  the 
presumption  of  deficient  performance  will  not  arise  from  a  subse- 
quent event,  no  direct  relation  or  connection  between  such  event  and 
the  act  of  performance  being  shown. 

It  may  be  said  that  this  rule  will  operate  to  force  the  owner  to 
successive  suits  against  the  different  carriers.  Any  rule  of  pre- 
sumption may  have  the  same  effect.  If  the  instruction  of  the  Circuit 
Court  were  sustained,  and  the  defendant  should  show  the  baggage 
was  in  good  condition  when  delivered,  the  plaintiff  would  be  driven 
to  a  suit  against  the  last  carrier.  No  rules  can  be  adopted  which 
would  avoid  such  effect,  other  than  to  hold  each  carrier  responsible 
for  the  damage  without  respect  to  the  line  on  which  it  occurred, 
which  would  violate  well-settled  principles  of  law.  The  formation 
of  long  routes  of  transportation  by  successive  roads  is  in  the  interest 
of  cheaper  transportation  and  rapid  transit;  and  if  shippers  adopt 
this  mode  of  shipping,  they  accept  its  difficulties  with  its  bene- 
fits. We  have  endeavored  to  formulate  the  rule  applicable  to  each 
carrier,  which  best  accords  with  established  legal  principles.  Dar- 
ling v.  B.  &  W.  R.  Co.,  11  Allen,  295. 

Reversed  and  remanded. 


REMEDIES   AS   AGAINST    CARRIER.  797 


d.    Evidence  of  Negligence. 

EMPIRE   TRANSPORTATION   CO.    v.    WAMSUTTA  OIL 
REFINING  AND  MINING   CO. 

63  Perm.  St.  14.     1869. 

Error  to  the  Court  of  Common  Pleas  of  Venango  County. 

This  was  an  action  on  the  case  by  the  Wamsutta  Oil  Refining  and 
Mining  Company  against  the  Empire  Transportation  Company,  to 
recover  damages  for  the  negligence  of  the  defendants  as  carriers,  by 
which  refined  oil  of  the  plaintiffs  that  the  defendants  were  carrying 
had  been  destroyed  by  fire.  The  case  was  tried  June  5,  1869,  before 
Trunkby,  P.  J.  The  plaintiffs  gave  evidence  that  they  had  shipped 
67  barrels  of  refined  oil  in  the  defendants'  cars,  and  that  a  car  of 
crude  oil  was  loaded  for  another  person  at  the  same  time;  "the  oil 
was  standard  light,  110°  or  upwards."  Standard  will  not  ignite  by 
flame  at  lower  than  110°,  crude  oil  will  ignite  at  65°  and  below;  that 
2862  gallons  of  oil  were  destroyed. 

Wm.  Best  testified:  "I  was  foreman  on  the  freight  train  on  the 
10th  of  March ,  1868.  On  that  morning,  about  a  mile  and  a  half  below 
Wetmore  Station,  I  discovered  fire  in  the  front  car  next  to  the 
engine.  There  was  an  engine  attached  to  the  rear  of  the  train  as  a 
pusher.  We  either  cut  the  front  engine  from  the  train  first,  or  the 
first  two  cars  from  the  rest  of  the  train.  The  train  was  stopped, 
and  then  the  engineer  reversed  the  rear  engine  and  backed  off  all 
but  the  first  two  cars.  We  then  tried  to  separate  these  two  cars. 
We  could  not  do  it,  because  we  could  not  get  the  pin  out.  The  pin 
was  fast  in  some  manner,  I  do  not  know  how.  We  then  broke  into 
the  second  car  and  unloaded  all  the  oil  we  could  on  account  of  the 
heat.  The  heat  was  coming  in  from  the  front  car.  The  second  car 
caught  fire  from  the  first.  I  do  not  know  how  the  first  car  caught. 
Know  of  no  other  cause  than  sparks  from  the  engine,  and  I  do  not 
know  that.  I  think  the  train  was  on  schedule  time  going  at  its 
usual  speed.  The  engine  was  supposed  to  be  in  good  condition. 
The  fire,  when  I  first  discovered  it,  was  at  the  end  next  the  engine. 
We  had  not  much  time  to  take  the  pin  out  before  the  flames  inter- 
fered with  us.  We  were  going  up  a  grade.  I  do  not  think  the 
brakes  were  down  on  the  first  car.  Every  effort  was  made  to  save 
the  oil  after  the  fire  was  discovered.  We  had  no  difficulty  in  getting 
the  pin  between  the  second  and  third  cars  out." 

Geo.  0.  Downer  testified:  "Was  conductor  on  this  train.  The 
train  was  going  about  ten  or  twelve  miles  an  hour,  had  been  on  time 
all  the  way.  I  first  discovered  that  the  forward  car  on  the  end  next 
the  forward  engine  was  on  fire.     The  train  was  stopped.     I  tried  ta 


798  CARRIERS   OF   GOODS. 

pull  the  pin  between  the  first  and  second  cars  out.  It  stuck  for  some 
reason  or  other,  I  do  not  know  what.  We  then  pulled  the  pin  be- 
tween the  second  and  third  cars.  The  first  and  second  cars  were 
burned.  The  engine  was  not  throwing  any  more  sparks  than  usual. 
The  first  attempt  to  cut  the  train  was  to  separate  the  first  and  second 
cars.  The  link  might  have  slipped  by,  and  it  might  be  that  the 
links  were  not  slacked ;  in  that  case  we  could  not  take  the  pin  out. 
I  do  not  know  what  was  the  reason  we  could  not  take  the  pin  out.  I 
do  not  know  whether  there  was  any  difference  in  this  pin  or  coup- 
ling from  other  pins  and  couplings  or  not.  The  front  engine  did 
emit  sparks.     I  know  it  took  fire  from  the  sparks  from  the  engine." 

Wm.  H.  Burton  testified:  "I  was  brakesman  on  this  train.  I  tried 
to  take  the  pin  out  between  the  first  and  second  cars,  but  could  not 
do  it.  I  could  not  get  the  pin  out  because  the  link  was  jammed. 
The  first  or  second  cars  were  not  coupled  as  cars  are  usually  coupled. 
The  coupling  link  could  not  have  got  in  the  shape  it  did  by  sudden 
stopping.     It  must  have  got  in  that  shape  by  going  around  a  curve." 

The  defendants  gave  in  evidence  their  receipt  to  the  plaintiffs  for 
the  oil,  subject  to  conditions  following,  the  third  of  which  was 
"that  the  owner  or  consignee  (in  consideration  of  the  extremely 
hazardous  nature  of  such  merchandise,  which  is  not  covered  by  any 
extra  charge  for  transportation)  hereby  assumes  all  risk  for  leak- 
age, evaporation,  and  loss  by  fire,  while  in  transit,  or  at  depots  or  in 
stations,  or  on  board  boats,  vessels,  or  lighters,  from  any  cause  what- 
ever, and  all  dangers  and  delays  of  railroad  and  water  transportation 
to  destination,  and  in  any  claim  or  demand,  suit  at  law  or  equity, 
against  this  company  or  transportation  company,  or  agent,  for  loss 
or  damage  thereby,  this  bill  of  lading  shall  be  deemed  and  taken  as 
a  release  in  full  therefor."  They  gave  evidence  also  that  crude  oil 
and  refined  oil  were  usually  carried  in  the  same  train;  that  there 
was  not  enough  refined  oil  shipped  for  trains  exclusively  of  that 
kind.  They  gave  evidence  also  by  the  engineer  on  the  train,  viz., 
"the  fire  caught  in  rear  end  of  front  car.  The  train  was  running  on 
time.  The  engine  was  in  good  condition,  with  new  spark  arrester. 
The  fire  communicated  with  second  car  so  quick  we  could  not  cut  it 
off.     It  was  almost  instantaneous." 

The  second  point  of  the  plaintiffs  was :  "  If  the  jury  believe  that 
the  defendant  placed  the  car  containing  plaintiff's  refined  oil  in  a 
train  composed  in  part  of  cars  loaded  with  crude  oil,  and  the  said 
car  containing  plaintiff's  refined  oil  was  coupled  with  a  car  contain- 
ing crude  oil,  and  the  said  crude  oil  was  greatly  more  combustible 
than  the  refined  oil  —  and  the  said  crude  oil  was  ignited  by  sparks 
from  the  engine,  and  communicated  the  fire  to  the  car  containing 
plaintiff's  oil,  by  which  it  was  destroyed  —  which  sparks  would  not 
have  ignited  the  refined  oil  —  and  that  the  coupling  of  the  said 
refined  oil  car  and  the  crude  oil  car  in  which  the  fire  originated  was 
defective,  and  that  the  defendant's  servants  endeavored  to  uncouple 


REMEDIES   AS   AGAINST    CARRIER.  799 

the  said  cars  and  could  and  would  have  uncoupled  the  said  cars  and 
saved  the  refined  oil  but  for  the  said  defective  coupling,  the  plaintiff 
is  entitled  to  recover." 

This  point  was  affirmed: 

The  verdict  was  for  the  plaintiffs  for  $678.18.  The  defendants 
took  a  writ  of  error,  and  assigned  for  error  the  answer  to  the 
plaintiffs'  point. 

Sharswood,  J.  As  a  common  carrier  cannot,  by  a  special  notice 
or  limitation  in  the  contract  or  bill  of  lading,  protect  himself  from 
liability  for  the  negligence  of  himself  or  his  servants,  Pennsylvania 
Eailroad  Co.  v.  Henderson,  1  P.  F.  Smith,  315,  the  only  question 
in  this  cause  was,  whether  the  defendants  had  been  guilty  of  such 
negligence.  The  error  assigned  is,  that  the  court  below  took  that 
question  from  the  jury,  by  affirming  the  plaintiff's  second  point,  by 
which  they  were  instructed,  that  if  they  were  satisfied  that  certain 
facts  were  proved,  the  plaintiffs  were  entitled  to  recover.  The  rule 
upon  this  subject  was  very  clearly  laid  down  in  McCully  v.  Clarke, 
4  Wright,  399,  in  which  it  was  said:  "There  are  some  cases  in 
which  a  court  can  determine  that  omissions  constitute  negligence. 
There  are  those  in  which  the  precise  measure  of  duty  is  determinate, 
the  same  under  all  circumstances.  When  a  duty  is  defined,  a  failure 
to  perform  it  is,  of  course,  negligence."  Other  cases  fully  corrob- 
orate this  doctrine:  Powell  v.  Pennsylvania  Railroad  Co.,  8  Casey, 
414;  Pennsylvania  Railroad  Co.  v.  Ozier,  11  id.  60;  Pittsburg  & 
Connellsville  Railroad  Co.  v.  McClurg,  6  P.  F.  Smith,  294;  Glassey 
v.  Hestonville  Passenger  Railway  Co.,  7  id.  172. 

The  duty  of  a  common  carrier  is  to  provide  a  vehicle  in  all  respects 
adapted  to  the  purposes  of  carriage,  and  so  constructed  as  to  be  able 
to  encounter  the  ordinary  risks  of  transportation.  Story  on  Bailments, 
§  509.  It  must  be  perfect  in  all  its  parts,  in  default  of  which  he 
becomes  responsible  for  any  loss  that  occurs  in  consequence  of  any 
defect,  or  to  which  it  may  have  contributed.  Hart  v.  Allen,  2  Watts, 
114;  New  Jersey  Railroad  Co.  v.  Kennard,  9  Harris,  204.  When 
merchandise,  of  whatever  character,  is  carried  on  the  same  railroad 
train  with  cars  loaded  with  a  combustible  substance,  easily  ignited 
by  sparks  from  the  locomotive  engine,  it  is  the  special  duty  of  the 
carrier  to  take  every  available  precaution  against  the  communication 
and  spreading  of  the  fire,  if  it  should  occur.  An  evident  and  simple 
measure  is  to  have  the  coupling  of  the  cars  in  such  perfect  order 
that  any  one  or  more  of  them  can  be  easily  detached  from  the  others 
in  time  to  be  saved  from  the  consequences.  If  the  fact  be  that  the 
coupling  was  defective,  unless  such  defect  was  the  result  of  an 
inevitable  accident,  and,  in  consequence  of  it,  the  car  containing  the 
plaintiff's  merchandise  could  not  be  detached  in  time  to  be  saved, 
the  negligence  and  liability  of  the  carrier  are  inferences  of  law 
from  the  facts. 

But  it  is  said  that  the  onus  in  this  case  was  on  the  plaintiffs  below, 


800  CAKKIERS    OF   GOODS. 

to  show  that  the  defect  of  the  coupling  arose  from  the  negligence  or 
want  of  care  of  the  defendants.  We  think  not.  When  the  carriage 
is  proved  to  have  been  defective  at  the  time  of  the  injury,  and 
that  the  defect  contributed  to  the  loss,  the  onus  is  then  necessarily 
shifted  to  the  carrier.  He  must  rebut  it  by  evidence  that  the  defect 
arose,  not  from  the  insufficiency  of  the  vehicle  into  which  the  goods 
were  loaded,  but  from  some  subsequent  accident  beyond  his  control. 
This  puts  the  burden  where  it  ought  most  properly  to  rest.  The 
carrier  ought  to  be  able  to  show,  with  ease,  by  his  servants,  that 
the  vehicle  was  inspected  before  the  commencement  of  the  trip,  and 
everything  found  to  be  in  good  order.  It  would  be  very  difficult  for 
the  plaintiffs  to  prove  the  contrary,  —  that  it  had  not  been  examined, 
or  that  it  was  in  bad  order  when  it  started.  On  the  trial  of  this 
case,  in  the  court  below,  there  was  no  evidence  to  show  when  or  how 
the  links  of  the  coupling  of  the  cars  became  jammed,  so  that  they 
could  not  be  separated  in  time.  It  was  surmised  by  one  of  the 
witnesses,  that  it  must  have  got  into  that  shape  by  going  around  a 
curve.  Even  admitting  this  to  be  so,  the  important  question  remains 
unanswered,  and  which  it  was  incumbent  on  the  carriers  to  answer, 
when  did  this  occur?  Had  it  been  shown  to  have  happened  during 
the  course  of  the  same  trip  in  which  the  fire  took  place,  and  that  it 
was  not  known  to,  or  discovered  by,  the  carriers,  or  their  servants, 
in  time  to  be  remedied,  then,  indeed,  there  might  have  been  a  ques- 
tion of  negligence  for  the  jury.  But  without  any  evidence  as  to 
this  point,  there  was  nothing  for  them  but  that  which  was  sub- 
mitted, whether  the  coupling  of  the   car  was  defective,  and  that 

defect  contributed  to  produce  the  loss. 

Judgment  affirmed. 


KIRST  v.   MILWAUKEE,    LAKE    SHORE    &   WESTERN 

R.    CO. 

46  Wis.  489.     1879. 

"  The  complaint  avers  a  failure  on  the  part  of  the  defendant  com- 
pany to  deliver  to  the  consignee  three  carboys  of  acid,  and  alleges 
that  such  carboys,  through  the  negligence  and  default  of  the  agents 
of  the  defendant,  were  broken  and  discharged.  The  plaintiffs  make 
a  part  of  their  complaint  the  receipt  given  by  the  company  on  the 
delivery  of  the  goods  in  question  for  transportation,  in  which  receipt 
it  is  expressly  stipulated  that  the  company  shall  not  be  responsible 
for  the  breakage  of  any  carboys  of  acid,  unless  it  can  be  shown  that 
such  damage  or  loss  occurred  through  the  negligence  or  default  of 
the  agents  of  the  company. 

''The   cause  was  last  tried  by  the  county  court,   a  jury   being 


REMEDIES  AS    AGAINST    CARRIER.  801 

waived.  It  appeared  on  the  trial  that  the  plaintiffs  delivered  in 
good  condition  to  the  defendant,  at  its  depot  in  Milwaukee,  28  car- 
boys of  acid,  to  be  transported  to  Appleton.  One  of  the  plaintiffs 
testified  that  his  firm  received  a  letter  from  the  consignees  stating 
that  only  25  carboys  were  received  from  the  carrier  at  the  place  of 
consignment.  He  says  that  he  then  went  to  the  general  freight 
agent,  at  his  office  in  Milwaukee,  to  make  inquiries  about  the  miss- 
ing three.  He  was  informed  by  the  agents  of  the  defendant  that 
the  three  missing  carboys  had  been  broken  by  the  Chicago  &  North- 
western Railway  Company  in  Milwaukee,  which  company  did  the 
switching  for  the  defendant  in  that  city;  and  that  they  would 
examine  into  the  matter  and  report.  After  waiting  two  or  three 
weeks  and  hearing  nothing  from  the  company,  the  same  plaintiff 
again  called  upon  the  agent,  and  was  informed  that  the  matter  had 
been  inquired  into,  and  it  was  found  that  the  three  carboys  were 
broken  by  the  Chicago  &  Northwestern  Company  while  switching, 
and  that,  as  the  latter  company  refused  to  pay  for  the  loss,  the  agent 
of  the  defendant  refused  to  pay.  The  value  of  the  goods  was  shown, 
and  also  the  contract  for  transportation.  At  the  close  of  the  plain- 
tiff's case,  the  defendant  moved  for  a  nonsuit,  mainly  on  the  ground 
that,  in  addition  to  proving  the  loss  of  the  goods  the  onus  was  upon 
the  plaintiffs,  under  the  stipulation  in  the  receipt,  of  showing  that 
the  breakage  occurred  through  the  negligence  or  default  of  the 
agents  of  the  defendant.  The  learned  county  court,  however,  held 
that,  as  the  defendant  had  failed  or  neglected  to  give  a  full  and  fair 
account  as  to  how  the  loss  occurred,  when  applied  to  by  the  plain- 
tiffs, this  was  sufficient  proof  from  which  negligence  on  the  part 
of  the  agents  and  servants  of  the  company  might  be  inferred.  The 
correctness  of  this  view  is  the  sole  question  we  have  to  consider." 

Plaintiffs  had  a  verdict  and  judgment;  and  defendant  appealed. 

Cole,  J.  On  the  part  of  the  defendant  it  is  claimed,  that,  under 
t\\e  stipulation  in  the  receipt  limiting  the  liability  of  the  carrier, 
the  defendant  was  simply  a  bailee  for  hire  of  the  carboys;  and  that 
therefore  negligence  or  default  on  its  part  would  not  be  presumed, 
but  must  be  affirmatively  shown  by  the  party  charging  it,  and  seek- 
ing a  recovery  founded  thereon.  The  general  soundness  of  this 
argument  may  be  conceded.  But  the  precise  question  here  is, 
whether,  when  the  carboys  were  shown  to  be  m  the  possession  or 
under  the  control  of  the  defendant,  and  a  breakage  occurred  from 
switching,  which,  in  the  ordinary  course  of  things,  does  not  happen 
if  those  who  have  charge  of  the  train  use  proper  care,  this  does  not 
afford  reasonable  evidence,  in  the  absence  of  a  full  explanation  by 
the  carrier,  that  the  loss  or  breakage  did,  in  fact,  occur  through  the 
negligence  or  default  of  the  agents  of  the  company.  We  are  inclined 
to  the  opinion  that  the  inference  of  negligence  may  be  made  under 
such  circumstances,  and  that  the  ruling  of  the  county  court  on  this 
point  was  right.     Here  the  loss  resulted  from  an  act  from  which, 


gQ2  CARRIERS    OF    GOODS. 

when  due  care  is  taken  in  its  performance,  loss  does  not  ordinarily 
ensue.     For  it  is  not  reasonable  to  assume  that  carboys  of  acid  are 
usually  broken,  when  transported  on  railroads,  by  switching  of  the 
cars,  when  that  is  done  in  a  proper  manner.     Consequently,  when 
the  plaintiffs  showed,  as  they  did  by  the  admission  of  the  agents  of 
the  company,  that  the  carboys  were  broken  by  the  Chicago  &  North- 
western Company  while  switching,  a  foundation  was  laid  for  a  rea- 
sonable inference  of  negligence,  especially  in  the  absence  of  explana- 
tion upon  the  subject,  and  the  burden  was  thrown  upon  the  defendant 
to  rebut  that  inference.     This  was  the  rule  laid  down  in  Scott  v. 
London  Dock  Co.,  3  H.  &  C.  596,  on  a  point  quite  analogous  to  the 
one  we  are  considering.     The  plaintiff  in  that  case  was  injured  by 
bags  of  sugar  falling  from  a  crane,  in  which  they  were  lowered  to 
the  ground  from  the  warehouse  of  the  defendant.     It  was  claimed 
that  there  was  no  evidence  to  go  to  the  jury  that  the  servants  of  the 
defendant  were  guilty  of  negligence  or  want  of  care  in  lowering  the 
crane.     Erie,  C.  J.,  in  stating  the  conclusion  at  which  a  majority 
of  the  court  in  the  Exchequer  Chamber  had  arrived,  said:  "There 
must  be  reasonable  evidence  of  negligence.     But  where  the  thing  is 
shown  to  be  under  the  management  of  the  defendant  or  his  servants, 
and  the  accident  is  such  as  in  the  ordinary  course  of  things  does  not 
happen  if  those  who  have  the  management  use  proper  care,  it  affords 
reasonable  evidence,  in  the  absence  of  explanation  by  the  defendant, 
that  the  accident  arose  from  want  of  care."     In  Steers  v.  The  Liver- 
pool, N.  Y.  &  P.  S.  Co.,  57  N.  Y.  1,  "the  plaintiff  took  passage  on 
one  of  the  defendant's  steamers  for  Europe,  and  received,  on  pay- 
ment of  the  passage-money,  a  printed  ticket  signed  by  the  defend- 
ant's agent,  containing  a  clause,  in  substance,  that  the  company  was 
not  to  be  held  liable  for  loss  or  damage  to  baggage  in  any  sum, 
unless  the  same  shall  have  been  proved  to  have  been  occasioned  by 
gross  negligence  of  the  company  or  its  agents.   .   .   .   On  going  aboard, 
the  plaintiff's  trunk  was  delivered  into  the  custody  of  the  defend- 
ant's agents,  who   assumed  to  take  charge  of  it;  at  the  end  of  the 
voyage,  the  defendant  did  not  produce  it,  or  in  any  way  account  for 
it.     In  an  action  to  recover  for  the  loss  of  the   trunk  and  contents, 
held,  that  the  evidence  was  sufficient  to  sustain  a  finding  by  the  jury, 
of  gross  negligence."     The  facts  in  regard  to  the  manner  in  which 
the  breakage  occurred   in  the  present  case  were  more  particularly 
within  the  knowledge  or  reach  of  the  defendant,  and,  according  to 
the  doctrine  of  the  above  cases,  it  was  called  upon  to  give  some 
explanation  of  the  loss.     The  agents  only  said  that  the  carboys  had 
been  broken  by  another  company  while  switching,  and  gave  no  other 
account  of  their  loss.     Under  these   circumstances,    we  concur  in 
the  opinion  of  the  county  court,  that,  because  defendant  failed  or 
neglected  to  give  a  full  statement  as  to  how  the  loss  occurred,  its 
negligence  might  be  inferred  in  that  regard. 

It  follows  from  these  views  that  the  judgment  of  the  county  court 
must  be  affirmed. 


CARRIER'S    COMPENSATION.  803 


9.     CARRIER'S   COMPENSATION. 

a.    Freight  Charges. 

CURLING  v.    LONG. 
Common  Pleas.     1  Bos.  &  P.  634.     1797. 

Assumpsit  for  freight  claimed  under  the  following  circumstances. 
The  plaintiffs  were  owners  of  the  ship  "The  Earl  of  Effingham," 
and  the  defendants  the  consignees  of  nine  hogsheads  of  sugar  shipped 
on  board  her  while  lying  in  Salt  River,  Jamaica,  and  bound  for 
London.  The  goods  were  put  on  board  on  the  18th  of  September, 
1795,  and  four  several  bills  of  lading  were  duly  signed  by  the  cap- 
tain. On  the  2d  of  December  following,  having  completed  her  lad- 
ing, the  ship  cleared  out  for  her  voyage.  On  the  31st  of  December, 
while  waiting  for  convoy,  she  was  cut  out  of  the  river  by  two  French 
privateers,  and  carried  out  to  sea,  but  was  recaptured  on  the  same 
day  by  a  British  schooner,  and  carried  into  Port  Royal.  The  ship 
was  afterwards  libelled  in  the  Admiralty  Court  of  Jamaica,  and 
appraised  and  sold  under  an  order  of  that  court.  The  proceeds  of 
the  sale,  after  deducting  one-eighth  for  salvage,  were  remitted  to 
the  defendants  as  agents  for  the  several  owners  of  goods  on  board. 
The  whole  of  the  cargo,  including  the  goods  in  question,  was  brought 
to  the  ship  in  Salt  River  for  the  purpose  of  being  loaded,  and  whs 
actually  put  on  board  at  the  expense  of  the  plaintiffs  as  owners  of 
the  ship  according  to  the  usage  of  the  Jamaica  trade.  This  amounted 
to  £310.  The  plaintiffs  also  expended  £455  18s.,  according  to  the 
same  usage,  for  the  provisions  and  wages  of  the  crew,  between  the 
time  when  the  ship  began  to  take  in  her  loading,  and  the  time  of 
the  capture.  The  plaintiffs'  demand  was  shaped  in  different  ways 
so  as  to  recover  a  proportion  of  the  freight  either  from  the  1st  of 
September,  1795,  when  the  goods  were  put  on  board,  to  the  1st 
of  January,  1796,  when  the  ship  was  recaptured,  or  from  the  2d  of 
December,  1795,  the  day  the  goods  were  shipped,  to  the  1st  of 
January,  1796,  the  day  she  was  recaptured ;  or  to  recover  a  propor- 
tion of  the  sums  expended  by  the  plaintiffs  as  above  mentioned. 

The  cause  was  tried  before  Eyre,  Ch.  J.,  at  the  Guildhall  sittings, 
after  Michaelmas  Term,  1796,  who  directed  a  nonsuit. 

A  rule  nisi  for  setting  aside  this  nonsuit  and  entering  a  verdict 
for  the  plaintiffs  having  been  obtained  on  a  former  day  [etc.]. 

Eyre,  Ch.  J.  This  is  a  case  of  the  very  first  impression;  and  it 
appears  to  me  that  the  demand  of  the  plaintiffs  is  neither  warranted 
by  the  marine  or  by  the  common  law.  The  former  has  settled  what 
freight  is,  what  services   it  includes,  and  also  that  it  is  divisible, 


804  CARRIERS    OF    GOODS. 

which  is  contrary  to  the  principles  of  the  common  law.  At  common 
law  all  the  expenses  of  loading  are  included  in  the  freight,  and  if 
the  party  be  not  entitled  to  freight  he  can  demand  no  satisfaction 
for  loading.  The  inception  of  freight  is  breaking  ground.  In  the 
law  of  insurance,  indeed,  this  doctrine  is  not  holden  so  strict,  for 
there,  if  the  goods  be  so  situated  as  to  create  a  well-grounded  expec- 
tation of  freight  being  raised,  it  is  decided  that  the  freight  is  insur- 
able and  recoverable.  But  that  does  not  affect  the  marine  law  as  to 
freight  in  cases  between  the  shipowners  and  freighters,  by  which 
the  case  must  be  decided.  According  to  that  law  no  right  to  freight 
commences  till  the  ship  has  broken  ground;  here  the  ship  had  not 
broken  ground,  having  been  captured  in  the  river.  The  situation  of 
the  places  where  cargoes  are  taken  in  materially  varies  the  labor, 
cost,  and  pains  taken  by  the  shipper  and  master.  In  some  places- 
there  is  little  difficulty  and  expense,  in  others  a  great  deal.  On 
these  circumstances  depends  the  price  of  freight :  if  the  master  incurs 
this  cost  and  trouble,  he  takes  a  larger  freight;  if  the  shipper,  a 
smaller.  In  either  case  the  freight  is  his  reward.  If,  therefore,  by 
the  marine  law  he  be  entitled  to  no  freight,  he  can  claim  no  remun- 
eration. So  stands  the  case  by  the  marine  law.  Let  us  now  view  it 
upon  the  principles  of  the  common  law.  The  contract  was  to  load 
these  goods  on  board  and  bring  them  to  England  for  a  certain  price. 
Upon  this  contract,  how  could  a  declaration  be  framed  for  the  plain- 
tiff's demand  either  in  assumpsit,  or  an  action  on  a  charter  party? 
Could  the  plaintiffs  state  a  part-performance  of  the  contract  and 
insist  on  payment  for  it?  This  could  not  be  done,  for  by  the  law 
of  England  the  contract  is  entire  and  indivisible.  By  the  marine 
law,  indeed,  parties  may  recover  pro  rata,  if  the  voyage  be  interrupted. 
And  by  the  common  law,  where  a  contract  cannot  be  performed,  such 
a  meritorious  consideration  may  arise  as  will  sometimes  entitle  a 
party  to  recover  in  the  form  of  an  action  of  assumpsit  for  work  and 
labor  even  after  the  contract  has  been  broken.  Such  is  the  case 
where  a  ship  after  capture  and  recapture  completes  her  voyage ;  for 
there  the  shipper  has  his  goods  with  the  advantage  of  carriage;  and 
upon  that,  though  the  original  contract  be  gone,  a  meritorious  con- 
sideration arises  which  entitles  the  master  to  a  recompense ;  not, 
however,  on  the  foot  of  the  old  contract,  but  on  a  new  contract 
which  springs  out  of  it.  Here  the  ship  never  arrived  at  the  port  of 
destination,  but  put  into  a  port  in  Jamaica,  without  having  con- 
ferred any  benefit  on  the  freighters  by  the  carriage,  or  bettered  the 
goods  in  the  smallest  degree  by  the  expenses  incurred.  I  am  there- 
fore of  opinion,  that  neither  by  the  marine  or  the  common  law  are 
these  plaintiffs,  however  unfortunate,  entitled  to  recover. 

Heath,  J.  This  is  a  demand  for  a  proportion  of  freight.  The 
contract  for  freight  is  technical  in  its  nature.  By  the  marine  law 
an  inchoate  right  to  freight  attaches  from  the  ship's  breaking  ground, 
and  is  consummated  upon  her  arrival  at  the  port  of  destination.     If 


carrier's  compensation.  805 

the  voyage  be  interrupted  the  party  may  claim  pro  rata.  Freight 
commences  at  the  same  time  in  all  parts,  since  it  depends  on  the 
same  principles  here  and  at  Jamaica.  It  is  true,  indeed,  that  by 
the  customs  of  different  ports,  duties  more  or  less  onerous  may  be 
imposed  on  the  master,  and  recompensed  by  the  freight.  But  that 
does  not  vary  the  principle.  This  case  is  only  new  in  its  circum- 
stances. The  law  of  insurance  does  not  apply  to  this  case ;  for  the 
mere  hope  or  expectation  of  interest  is  sufficient  to  entitle  the 
assured  in  a  policy  of  insurance  to  recover  against  the  underwriters. 
Rooke,  J.  This  is  a  new  case,  and  therefore  I  take  the  demand 
not  to  be  founded  on  the  usage  of  trade.  The  contract  in  a  bill  of 
lading  is  for  freight.  The  expression  is,  "they  paying  freight;" 
and  though  the  master  may  have  been  at  the  expense  of  loading, 
and  the  freight  was  higher  on  that  account,  yet  as  it  had  not  com- 
menced, the  plaintiffs  cannot  demand  a  recompense.  The  text- 
writers  all  agree  that  freight  commences  from  the  breaking  ground. 
This  is  clear  and  intelligible:  the  ship  begins  to  earn  when  she 
begins  to  move;  and  we  cannot  introduce  new  principles.  The 
writers  also  say,  that  there  may  be  cases  where  the  shipowners  may 
be  entitled  to  a  proportion  of  what  the  ship  has  earned;  but  that 
cannot  include  what  has  been  earned  by  the  master  before  the  com- 
mencement of  the  voyage.  This  doctrine  is  founded  in  good  policy, 
for  it  tends  to  expedite  the  sailing  of  the  ship.  Did  the  freight 
commence  sooner,  it  might  induce  the  master  to  stay  a  longer  time 
in  port  and  so  delay  the  voyage.  Insurance  is  a  contract  of  indem- 
nity; the  cases,  therefore,  which  are  founded  on  such  a  contract  are 
not  applicable  to  this  case.  Upon  these  grounds  I  think  the  non- 
suit right. 

Rule  discharged. 


TINDAL   v.    TAYLOR. 

Queen's  Bench.     4  El.  &  B.  219.     1854. 

Lord  Campbell,  C.  J.  We  entirely  agree  to  the  law  laid  down 
by  Lord  Tenterden  in  his  treatise  (8th  ed.),  p.  595,  and  in  Thomson 
v.  Trail,  2  Car.  &  P.  334,  E.  C.  L.  R.  vol.  12,  when  applied  to  a 
general  ship,  that  "  a  merchant,  who  has  laden  goods,  cannot  insist 
on  having  them  relanded  and  delivered  to  him  without  paying  the 
freight  that  might  become  due  for  the  carriage  of  them,  and  indem- 
nifying the  master  against  the  consequences  of  any  bill  of  lading 
signed  by  him."  It  is  argued  that  there  can  be  no  lien  on  the 
goods  for  freight  not  yet  earned  or  due;  but  when  the  goods  were 
laden  to  be  carried  on  a  particular  voyage,  there  was  a  contract  that 
the  master  should  carry  them  in  the  ship  upon  that  voyage  for 
freight;  and  the  general  rule  is  that  a  contract  once  made  cannot  be 


806  CARRIERS    OF   GOODS. 

dissolved  except  with  the  consent  of  both  the  contracting  parties. 
By  the  usage  of  trade,  the  merchant,  if  he  redemands  the  goods  in 
a  reasonable  time  before  the  ship  sails,  is  entitled  to  have  them 
delivered  back  to  him,  on  paying  the  freight  that  might  become  due 
for  the  carriage  of  them,  and  on  indemnifying  the  master  against 
the  consequences  of  any  bills  of  lading  signed  for  them ;  but  these 
are  conditions  to  be  performed  before  the  original  contract  can  be 
affected  by  the  demand  of  the  goods.  It  would  be  most  unjust  to  the 
owners  and  master  of  the  ship  if  we  were  to  hold  that  upon  a  simple 
demand  at  any  time  the  goods  must  be  delivered  back  in  the  port 
of  outfit;  and  Thompson  v.  Small,  1  Com.  B.  328,  the  case  relied 
upon  by  Mr.   Willes,  is  no  authority  for  such  a  doctrine. 


BAILEY  v.    DAMON. 
3  Gray  (Mass.),  92.     1854. 

Assumpsit  on  a  contract  in  writing,  dated  the  7th  of  February, 
1850,  whereby  the  defendants  agreed  to  ship,  and  the  plaintiffs  to 
transport,  seventy-five  thousand  feet  of  lumber  from  Boston  to 
Sacramento  City,  California,  at  $85  per  thousand  and  five  per  cent 
primage.     With  dated  May  26th,  1850. 

Trial  before  Merrick,  J.,  at  November  Term,  1853,  when  the 
plaintiffs  introduced  evidence  tending  to  show  that  they  got  the 
vessel  ready  to  receive  her  cargo,  and  the  defendants  immediately 
put  on  board  78,875  feet  of  lumber,  the  stowing  of  which  was  com- 
pleted on  the  26th  of  March,  1850,  and  which  made  about  three- 
quarters  of  a  cargo  for  the  vessel;  that  she  lay  at  the  wharf,  with 
the  defendant's  assent,  until  the  21st  of  May,  when  the  defendants 
took  away  their  lumber;  and  that  by  this  act  of  the  defendants  the 
vessel  was  delayed,  in  procuring  other  freight,  until  the  15th  of 
July,  when  she  sailed  for  San  Francisco. 

The  plaintiffs  also  offered  evidence  that,  in  place  of  the  defend- 
ants' lumber,  they  carried  some  goods  for  other  persons  at  a  lower 
rate  of  freight,  and  some  lumber  on  their  own  account,  their  net 
earnings  upon  which  were  less  than  the  rate  of  freight  agreed  to  be 
paid  by  the  defendants.  To  this  evidence  the  defendants  objected; 
but  the  judge  admitted  it,  for  the  purpose  of  showing  how  much  the 
plaintiffs  ought  to  deduct  from  the  damages  occasioned  by  the  loss 
of  the  freight  of  the  defendants'  lumber;  and  instructed  the  jury 
that  the  plaintiffs  were  entitled  to  recover  the  amount  of  freight  and 
primage  which  they  would  have  earned  if  they  had  taken  the  defend- 
ants' lumber  to  Sacramento,  adding  the  demurrage  for  the  time  they 


CARRIERS    COMPENSATION.  807 

were  delayed  to  obtain  other  freight,  and  deducting  the  freight  they 
received  from  other  shipments  of  goods  of  other  persons,  and  their 
net  earnings  on  their  own  shipments. 

The  jury  returned  a  verdict  for  the  plaintiffs,  and  assessed  damages 
at  $6,020.75.  The  defendant  moved  for  a  new  trial  on  the  ground 
that  these  rulings  and  instructions  were  erroneous. 

Dewey,  J.  This  case  is  put  by  the  plaintiffs  upon  the  grounds 
upon  which  damages  are  given  on  a  contract  to  ship  goods  to  a  given 
port,  when,  through  the  default  of  the  shipper,  the  goods,  although 
the  voyage  is  commenced,  do  not  reach  the  port  of  discharge.  In 
such  cases,  as  appears  well  established  by  the  cases  cited  by  the 
counsel  for  the  plaintiffs,  the  entire  freight  is  earned,  and  must  be 
paid  by  the  shipper.  The  next  inquiry  is  whether  the  case  at  bar 
is  of  like  character?  It  was  urged  in  the  argument,  that  placing 
the  goods  on  board  ship  preparatory  to  sailing  was  equivalent  to 
the  actual  commencement  of  the  voyage  in  its  consequences  as  to  the 
right  of  the  carrier  to  recover  full  freight.  We  find  no  authority 
for  that  position.  Indeed,  the  rule  as  to  what  constitutes  the  com- 
mencement of  a  voyage,  in  reference  to  liability  for  freight,  is  well 
settled  otherwise.  That  rule  is,  that  the  voyage  commences  upon 
breaking  ground  for  the  voyage,  and  not  before.  Curling  v.  Long 
1  Bos.  &  Pul.  636  [803] ;  Burgess  v.  Gun,  3  Har.  &  Johns.  225;  Smith's 
Merc.  Law  (Amer.  ed.),  308.  No  freight  is  due  before  the  com- 
mencement of  the  voyage,  and  no  lien  exists  therefor. 

The  case  of  the  plaintiffs  is  not,  therefore,  one  of  a  voyage  com- 
menced, and  a  subsequent  prevention  of  the  carriage  of  the  goods 
to  the  port  of  delivery  through  the  default  of  the  shipper.  It  is  a 
case  of  an  executory  contract  to  ship  goods,  which  the  shipper  refuses 
to  fulfil  on  his  part.  The  defendants  agreed  to  ship  on  board  the 
plaintiffs'  vessel  seventy-five  thousand  feet  of  lumber  for  California, 
and  to  pay  the  plaintiffs  a  stipulated  sum  for  the  same.  The  plain- 
tiffs aver  that  they  were  ready  to  perform  their  contract,  but  were 
prevented  by  the  acts  of  the  defendants.  Assuming  this  to  be  so, 
the  further  inquiry  is,  what  is  the  rule  of  damages  in  such  case  ? 

The  measure  of  damages  is  full  indemnity  for  all  they  have  lost 
through  ohe  default  of  the  shippers.  The  mode  of  ascertaining  the 
amount  of  damages  for  a  breach  of  an  executory  agreement  must,  of 
course,  differ  in  different  classes  of  cases.  If  it  were  a  contract  to 
employ  the  plaintiffs  to  build  a  house,  and  pay  them  an  agreed  price 
for  the  entire  work,  and  the  defendants  had  prevented  the  perform- 
ance, the  proper  rule  would  seem  to  be  the  difference  between  tin' 
sum  agreed  to  be  paid,  and  the  sum  that  it  would  have  cost  the 
plaintiffs  to  perform  the  contract.  That  rule  does  not  meet  the  cases 
of  contracts  for  freight,  as  they  are  generally  made.  It  does  not 
meet  the  case  of  a  vessel  engaged  in  carrying  merchandise  generally 
for  all  who  may  apply,  and  making  up  her  cargo  from  various  owners 
of  goods.     Such  ship  usually  must  sail  on  or  about  a  given  day,  to 


808  CARRIERS    OF    GOODS. 

fulfil  her  other  contracts,  thus  leaving  no  time  or  opportunity  to  fill 
up  the  deficient  cargo,  and  also  necessarily  incurring  all  the  expenses 
that  would  have  been  incident  to  the  voyage,  had  the  shipper  ful- 
filled bis  particular  contract  to  furnish  a  certain  amount  of  goods 
for  the  voyage. 

On  the  other  hand,  if  the  shipper's  contract  were  to  fill  the  entire 
ship  with  his  goods  at  a  certain  freight,  upon  his  refusal  or  neglect 
to  fulfil  his  contract,  the  carrier  might  abandon  the  whole  voyage, 
and  engage  in  some  new  adventure  equally  or  more  profitable,  and 
thus  all  future  expenses  incident  to  the  first  voyage  be  saved.  Here 
it  is  quite  obvious  the  damages  would  be  much  less  than  in  the  case 
of  a  voyage  that  must  be  performed,  notwithstanding  the  failure  of 
a  single  individual  customer  to  ship  his  goods  according  to  contract. 

So,  too,  if  under  no  obligation  to  other  shippers  to  sail  at  a  given 
day,  or  if  that  day  was  so  remote,  and  the  demand  for  transporta- 
tion of  goods  such  as  to  afford  full  opportunity  to  fill  up  the  ship 
before  the  day  of  sailing,  these  circumstances  would  materially  affect 
the  amount  required  to  be  paid  by  the  shipper  to  the  carrier,  to 
indemnify  him  for  the  non-performance  of  the  contract  on  his  part. 

It  seems,  therefore,  proper  that  all  the  attendant  circumstances  be 
brought  before  the  jury  in  each  particular  case,  to  enable  them  to 
estimate  the  proper  sum  to  be  awarded  as  damages  for  a  breach  of 
contract  of  this  nature.  The  carrier  is  to  receive  full  indemnity  for 
the  breach  of  contract  on  the  part  of  the  shipper.  He  is  to  be  made 
as  good,  in  a  pecuniary  point  of  view,  as  if  the  shipper  had  furnished 
the  goods  according  to  his  contract,  if  the  carrier  has  been  guilty 
of  no  laches  as  to  substituting  other  freight,  or  adopting  other 
available  arrangement  to  mitigate  the  loss,  or  avoid  the  expenditure 
incident  to  the  proposed  voyage.  But  if  by  proper  and  reasonable 
efforts  he  can  substitute  other  goods,  he  is  bound  to  do  so,  and,  to 
the  extent  of  the  freight  thus  received,  this  should  go  in  reduction 
of  the  damages.  Nor  is  the  reduction  necessarily  confined  to  his 
receipts  from  goods  actually  substituted.  The  carrier  may  have 
been  remiss  in  his  attempts  to  fill  up  his  ship,  or  have  neglected  to 
avail  himself  of  opportunities  presented  by  other  offers  of  goods, 
and  if  guilty  of  negligence  in  these  respects,  this  may  be  a  ground 
for  a  deduction  from  the  entire  sum  stipulated  to  be  paid  by  a 
shipper  for  freight  of  certain  articles  which  were  not  furnished  to 
the  carrier. 

It  may  be  also  that  the  carrier  was  under  no  obligation  to  others 
to  prosecute  the  proposed  voyage,  and  might  have  abandoned  it  for 
another  and  more  profitable  employment  of  his  ship;  and  in  such 
case  he  should  not  pursue  the  original  voyage  for  the  mere  purpose 
of  charging  the  defaulting  shipper  with  the  gross  sum  he  stipulated 
to  pay  for  transporting  his  goods  to  a  distant  port. 

It  will  be  perceived,  therefore,  that  a  somewhat  broader  line  of 
defence  should  have  been   permitted  to  the  defendants,  than  that 


carrier's  compensation.  809 

prescribed  at  the  trial.  It  is  true  that  the  plaintiffs  are  entitled  to 
the  full  benefit  of  their  contract,  and  to  the  entire  damage  they  have 
.  sustained  through  the  default  of  the  defendants.  But  the  sum  the 
shippers  stipulated  to  pay  for  freight  is  subject  to  be  reduced  by 
money  actually  received  for  substituted  freight,  and  also  by  the 
amount  which  the  carrier  might  have  made,  had  he  availed  himself 
of  all  proper  opportunities  to  fill  up  the  vacancy,  and  to  mitigate  the 
loss  that  would  attach  to  the  shipper  by  the  payment  of  the  entire 
sum  stipulated  to  be  paid  for  freight. 

See  on  this  subject,  Heckscher  v.  McCrea,24  Wend.  304;  Shannon 
v.  Comstock,  21  Wend.  457;  Costigan  v.  Mohawk  &  Hudson  Eiver 
Eailroad,  2  Denio,  610;  Abbott  on  Shipping,  411;  Sedgw.  Damages, 
361.  New  trial  ordered. 

A  new  trial  was  had  at  this  term  and  resulted  in  a  verdict  of 

1,052.99  for  the  plaintiffs. 


SAYWARD  v.    STEVENS. 
3  Gray  (Mass.),  97.     1854. 

Assumpsit  to  recover  a  balance  due  for  freight  of  an  invoice  of 
lumber  from  Boston  to  San  Francisco. 

The  plaintiffs  gave  in  evidence  a  bill  of  lading  dated  at  Boston, 
January  18th,  1850,  and  signed  by  their  agent,  of  which  the  material 
part  was  as  follows :  "  Shipped  in  good  order  and  condition  by  Hiram 
Stevens  on  board  the  good  bark  '  Galileo,'  Sutton,  master,  now  lying 
in  the  port  of  Boston,  and  bound  for  San  Francisco,  to  say,  1,900 
feet  boards,  planed  one  side;  11,089  feet  boards,  planed  two  sides, 
more  or  less;  eleven  packages  window  frames  and  sashes;  seven 
boxes  shingles;  two  boxes  hardware;  one  package  doors;  twelve 
doors;  four  kegs  nails;  one  package  sash  (skylight);  four  packages 
stair  stuff;  four  packages  nine  pieces  door  frames;  two  thousand 
clapboards;  four  packages  blinds;  two  hundred  and  forty-eight 
pieces  house  frame;  to  be  received  by  consignee  within  reach  of  the 
ship's  tackle  within  ten  days  after  arrival;  if  not  received,  the  cap- 
tain to  have  the  right  to  sell  them:"  "And  are  to  be  delivered  in 
like  good  order  and  condition  at  the  aforesaid  port  of  San  Francisco 
(the  danger  of  the  seas  only  excepted) unto  H.  Stevens  or  his  assigns, 
he  or  they  paying  freight  for  said  goods  f  926.39,  and  five  per  cent 
primage  and  average  accustomed :  "  "  Seven  boxes  of  shingles  on 
deck." 

There  was  also  evidence  of  the  following  facts :  All  the  articles 
named  in  the  bill  of  lading  were  received  by  the  plaintiffs  on  board 
the  bark  "Galileo"  at  Boston;  and  the  shingles,  as  well  as  some  of 


810  CARRIERS   OF   GOODS. 

the  packages  of  door  casings,  window  frames  and  sashes,  and  stair 
stuff,  and  a  portion  of  the  boards,  were  stowed  on  deck.  All  the 
articles  so  stowed  were  thrown  overboard  and  lost  by  stress  of  . 
weather.  The  remainder  of  the  invoice,  being  stowed  in  the  hold, 
arrived  in  safety  at  the  port  of  discharge.  Notice  was  immediately 
published  in  the  newspapers  to  consignees  to  receive  their  goods. 
After  waiting  thirty  days,  no  one  appearing  to  claim  these  goods, 
they  were  advertised  for  sale  at  public  auction,  by  the  description 
in  the  bill  of  lading,  the  plaintiffs'  agent  at  San  Francisco  not  know- 
ing that  the  whole  had  not  arrived  in  safety;  and  they  were  sold, 
Accordingly,  by  said  description,  except  the  boards,  which  were  sold 
by  the  foot.  The  proceeds  of  the  sale,  deducting  expenses,  were 
$662.13,  which  were  credited  to  the  defendant  on  account  of  the 
freight.  Upon  delivery  of  the  goods,  the  loss  of  about  one  thousand 
feet  of  boards  and  of  the  other  articles  stowed  on  deck  was  ascer- 
tained; and  the  plaintiffs' agent  settled  with  the  purchaser  for  this 
deficiency  by  repaying  him  the  sum  of  $75.  Goods  of  the  same 
kind  and  quality  as  those  lost  could  be  readily  purchased  at  San 
Francisco  at  that  time. 

The  plaintiffs  offered  to  prove  that  all  the  articles  stowed  on  deck 
were  so  stowed  with  the  defendant's  knowledge  and  assistance. 
But  the  judge  rejected  the  evidence,  and  ruled  that  the  bill  of  lad- 
ing expressed  the  contract  between  the  parties;  that,  in  the  absence 
of  any  fixed  usage  of  trade  to  carry  such  freight  in  a  particular  man- 
ner, the  obligation  of  the  carrier,  so  far  as  the  place  of  stowing  was 
concerned,  was  to  carry  safely,  excepting  perils  of  the  seas;  and  that 
this  obligation  could  not  be  varied  by  parol  evidence  of  knowledge 
of  the  owner  of  the  goods  of  the  manner  in  which  they  were  stowed. 

The  defendant  offered  parol  evidence  that  the  several  articles 
named  in  the  bill  of  lading  were  originally  obtained  and  prepared 
and  fitted  for  one  house,  and  intended  to  be  put  together  as  such  in 
San  Francisco.  To  this  evidence  the  plaintiffs  objected;  but  the 
judge  admitted  it,  and  instructed  the  jury  that  if  they  believed  that 
the  articles  enumerated  in  the  bill  of  lading  constituted  the  parts  of 
one  house,  and  the  portions  lost  were  lost  by  reason  of  their  being 
improperly  stowed  on  deck,  and  were  a  substantial  part  of  the  house, 
without  which  the  house  would  be  wholly  incomplete,  and  of  no 
practical  utility  as  a  house,  in  short,  no  longer  the  article  which 
was  shipped,  then,  the  freight  being  payable  on  the  whole  in  one 
entire  sum,  the  plaintiffs  could  not  recover  freight  for  the  lumber 
actually  carried,  and  which  arrived  at  San  Francisco,  although  the 
lost  articles  could  be  easily  supplied  in  the  market  by  the  purchase 
of  others  of  like  character. 

The  jury  returned  a  verdict  for  the  defendant,  and  the  plaintiffs 
alleged  exceptions. 

Bigelow,  J.  The  main  question  in  this  case  arises  on  the  true 
interpretation  of  the  contract  between  the   parties,   by  which   the 


CARRIER'S    COMPENSATION.  811 

plaintiffs  agreed  to  convey  the  articles  enumerated  in  the  bill  of 
lading  from  Boston  to  San  Francisco.  To  arrive  at  this,  it  is  neces- 
sary in  the  outset  to  determine  whether  this  contract  rests  solely  in 
the  bill  of  lading,  and  is  to  depend  upon  the  terms  by  which  it  is 
therein  set  forth,  or  whether  it  can  be  varied  or  explained  by  parol 
proof  of  the  acts  and  conduct  of  the  parties  prior  to  and  at  the  time 
of  the  shipment  of  the  merchandise. 

The  rule  is  well  settled,  that,  under  the  ordinary  forms  of  bills  of 
lading,  the  contract  imports  that  goods  are  to  be  stowed  under  deck; 
and  if  carried  on  deck,  the  owners  of  the  vessel  will  not  be  protected 
from  liability  for  their  injury  or  loss,  by  the  usual  exception  of 
dangers  of  the  sea.  Abbott  on  Shipping  (5th  Amer.  ed.),  345,  note. 
Whether  this  is  a  mere  presumption,  arising  from  the  usual  mode 
of  conveying  merchandise  in  vessels,  and  therefore  liable  to  be 
rebutted  in  a  particular  case  by  proof  of  a  parol  contract  between 
the  owners  of  the  vessel  and  the  shipper  that  the  goods  were  to  be 
carried  on  deck,  or  by  evidence  of  circumstances  from  which  such 
agreement  might  be  properly  inferred,  such  as  usage  affecting  a  par- 
ticular trade  or  certain  kinds  of  merchandise,  we  have  no  occasion 
in  the  present  case  to  determine.  It  may,  however,  be  remarked, 
that  as  bills  of  lading  do  not  usually  contain  any  express  stipulation 
concerning  the  place  or  mode  of  stowing  the  cargo,  these  being  left 
to  the  care  and  discretion  of  the  master  of  a  vessel,  the  admission  of 
such  evidence  would  not  seem  to  be  a  violation  of  the  salutary  rale 
that  written  contract  cannot  be  varied  or  controlled  by  parol  proof. 

In  the  present  case,  the  bill  of  lading  is  not  in  the  usual  form. 
It  contains  an  express  agreement  or  memorandum  in  writing  con- 
cerning the  stowage  of  a  portion  of  the  articles  shipped,  which  takes 
it  out  of  any  special  rule  applicable  to  contracts  of  this  nature,  and 
brings  it  within  the  general  rule  by  which  all  contracts  in  writing 
are  governed.  The  memorandum  is  in  these  words :  "  Seven  boxes 
of  shingles  on  deck.''  The  effect  of  this  stipulation  clearly  is,  that 
the  parties  are  not  by  their  contract  left  to  the  ordinary  presump- 
tion concerning  the  stowage  of  the  cargo,  nor  to  the  usage  of  trade 
by  which  it  may  have  been  regulated.  They  have  made  it  matter 
of  express  agreement.  Looking  at  the  nature  of  the  contract,  and 
taking  into  view  not  only  what  the  parties  have  expressly  stipulated, 
but  also  the  general  duty  of  the  carrier  to  stow  and  carry  under  deck 
merchandise  destined  for  a  long  voyage  to  a  distant  port,  we  think 
the  bill  of  lading  in  this  case  is  equivalent  to  an  express  agreement 
that  the  seven  boxes  of  shingles  should  be  carried  on  deck,  and  the 
residue  of  the  shipment  should  be  stowed  under  deck.  In  order  to 
give  any  effect  to  the  written  memorandum,  it  necessarily  imports 
that  no  part  of  the  merchandise  specified  in  the  bill  of  lading  is  to 
be  carried  on  deck,  except  the  articles  expressly  included  within  it. 
To  a  contract  thus  expressed,  the  maxim  expressio  unius  exeJusio 
alterius   is   peculiarly  applicable.      The   only  fair  and  legitimate 


812  CARRIERS   OF    GOODS. 

inference  from  the  terms  of  the  contract  is,  that  the  parties,  before 
reducing  their  agreement  to  writing,  conferred  together  concerning 
the  stowage  of  the  cargo,  and,  as  a  result  of  their  ultimate  inten- 
tion, stipulated  that  only  the  seven  boxes  of  shingles  should  be  car- 
ried on  deck.  In  this  view,  it  is  very  clear  that  the  parol  proof 
offered  at  the  trial  tended  directly  to  vary  the  terms  of  the  written 
agreement,  and  was  therefore  rightly  rejected. 

The  more  important  question  in  the  case  arises  upon  the  true  con- 
struction of  the  contract  of  shipment,  as  it  is  expressed  in  the  bill 
of  lading.  The  general  rule  is,  that  all  contracts  for  the  conveyance 
and  delivery  of  merchandise  for  an  agreed  price  are  in  their  nature 
entire  and  indivisible;  and  unless  completely  performed  by  the 
carrier,  he  is  not  entitled  to  any  compensation.  The  undertaking  is 
not  only  to  carry  the  goods  to  a  particular  destination,  but  it  also 
includes  the  duty  of  delivering  them  in  safety;  and  no  freight  is 
earned  until  the  contract  for  delivery,  as  well  as  of  carriage,  is  com- 
pletely fulfilled.  Chit.  Con.  (8th  Amer.  ed.),  636;  Angell  on 
Carriers,  §  397. 

There  are  exceptions  to  this  general  rule,  founded  on  principles 
of  justice  and  equity,  arising  out  of  particular  circumstances;  but 
the  rule  itself  is  elementary,  and  lies  at  the  foundation  of  this 
species  of  contract.  Indeed,  the  definition  of  a  bill  of  lading,  as 
given  by  high  authority,  is,  that  it  is  the  written  evidence  of  a  con- 
tract for  the  carriage  and  delivery  of  goods  sent  by  sea,  for  a  certain 
freight.  Its  peculiarity  is,  that  unless  freight  is  wholly  earned  by 
a  strict  performance  of  the  voyage,  no  freight  is  due  or  recoverable. 
The  contract  of  the  carrier  is  indivisible,  and  he  can  recover  for  no 
portion  of  the  voyage  that  has  been  made,  until  the  whole  is  finished 
and  the  goods  have  reached  their  destination.  Mason  v.  Lickbarrow, 
1  H.  Bl.  359;  Angell  on  Carriers,  §  398.  The  operation  of  this 
rule  is  sometimes  hard  and  inequitable.  For  this  reason,  courts  of 
law  have,  in  many  cases,  readily  seized  upon  any  features  in  con- 
tracts for  transportation  from  which  it  could  be  fairly  inferred  that 
the  parties  intended  to  make  them  divisible  and  apportionable ; 
while  in  other  cases  they  have  given  such  interpretation  to  the  acts 
of  parties  as  to  substitute,  in  the  place  of  the  original  entire  con- 
tract, a  new  agreement,  by  which  the  shipper  became  bound  to  pay 
a  proportional  freight,  although  the  carrier  had  not  fulfilled  the 
whole  of  the  original  contract  on  his  part.  Within  the  former  class 
of  cases  are  comprehended  all  contracts  of  affreightment  by  charter- 
party  or  bills  of  lading,  where  the  freight  is  payable  by  the  ton,  by 
admeasurement,  by  the  package  or  barrel,  or  where  different  por- 
tions of  the  same  cargo  are  shipped  upon  distinct  and  separate  terms 
as  to  freight.  In  ail  such  cases,  it  is  held  that  the  delivery  of  the 
cargo  is  in  its  nature  divisible,  and  the  contract  itself  furnishes  the 
means  and  the  measure  of  apportioning  the  freight  according  to 
the  quantity  of  the  cargo  actually  delivered.     Abbott  on  Shipping, 


carrier's   COMPENSATION.  813 

266;  Ritchie  v.  Atkinson,  10  East,  295.  Within  the  latter  class 
are  included  all  cases  where  the  shipper  or  consignee,  by  a  volun- 
tary acceptance  of  his  goods  at  an  intermediate  port,  or  by  a  receipt 
of  a  portion  of  an  entire  shipment  at  the  place  of  destination,  is 
held  to  have  waived  the  full  performance  of  the  original  contra* 
and  to  be  liable  pro  rata  for  the  carriage  of  the  goods  actually 
received  by  him.  Abbott  on  Shipping,  406;  Ship  "Nathaniel 
Hooper,"  3  Sumner,  550,  551. 

Upon  examination  of  the  contract  in  the  present  case,  it  seems  to 
us  very  clear  that  the  contract  is  an  entire  one,  and  does  not  fall 
within  any  of  the  cases  which  authorize  an  apportionment  of  the 
freight.  It  is  an  agreement  to  transport  a  certain  number  of  articles 
from  Boston  to  San  Francisco  for  an  entire,  aggregate  sum  as  freight. 
On  the  part  of  the  owners  of  the  vessel,  it  is  an  agreement  to  carry 
and  deliver  all  the  articles  enumerated  in  the  bill  of  lading,  for 
which  the  shipper  agrees  to  pay  and  they  agree  to  receive  a  sum  in 
gross.  The  agreement  to  carry  and  deliver  goes  to  the  whole  con- 
sideration to  be  paid  therefor.  They  are  mutual  agreements,  but 
that  of  the  owners  of  the  vessel  is  precedent  to  that  of  the  shipper. 
The  entire  carriage  and  delivery  were  to  be  performed  before  any 
title  to  the  freight-money  accrued  to  the  owners.  Such  is  the  legal 
construction  of  the  usual  contract  for  the  carriage  of  goods.  That 
it  is  the  necessary  interpretation  of  the  contract  of  the  parties  in  the 
present  case  results  not  only  from  the  entirety  of  the  consideration, 
but  also  from  the  nature  of  the  merchandise  comprised  in  the  ship- 
ment. If  it  had  been  a  contract  for  the  transportation  of  a  cargo  of 
similar  and  homogeneous  articles,  for  an  entire  sum  in  gross,  it  might 
have  been  urged  with  some  plausibility  that  the  parties  contem- 
plated an  apportionment  of  freight,  in  case  of  disaster  or  other 
cause,  by  reason  of  which  a  portion  of  the  cargo  might  fail  to  reach 
its  place  of  destination.  If,  for  instance,  a  hundred  barrels  of  flour 
were  shipped  under  a  bill  of  lading,  by  which  it  was  stipulated  that 
the  freight  to  be  paid  therefor  should  be  five  hundred  dollars;  in 
such  case,  the  delivery  of  an  aliquot  part  thereof  at  the  place  of 
destination,  forming  a  certain  specific  and  definite  proportion  of  the 
entire  invoice,  would  furnish  the  basis  of  an  accurate  division  and 
apportionment  of  the  entire  freight-money,  according  to  the  amount 
actually  carried  and  delivered.  But,  in  the  case  at  bar,  the  ship- 
ment is  made  up  of  a  variety  of  miscellaneous  and  diverse  articles, 
unlike  in  kind,  quality,  and  value,  incapable  of  being  packed  ami 
stowed  together,  and  bearing  no  definite  proportion  to  each  other  in 
size  or  in  cost  of  transportation.  Having  reference,  therefore,  to 
the  nature  of  the  shipment,  as  well  as  to  the  consideration  agreed  to 
be  paid  for  the  carriage  of  the  articles,  it  is  manifest  that  the  con- 
tract affords  no  basis  by  which  to  divide  the  invoice  and  apportion 
the  freight.  It  is  an  entire  invoice,  to  be  carried  for  an  entire  sum, 
incapable  of  apportionment;  and  where,  from  the  nature  of  the  con- 


814  CARRIERS    OF    GOODS. 

tract   and    its   subject-matter,    it   is   fair  to   infer  that  the   parties 
intended  to  make  their  contract  one  and  indivisible. 

It  follows  as  a  necessary  consequence,  that  the  owners  of  the  ves- 
sel, if  they  failed  to  transport  and  deliver  the  whole  of  the  articles 
included  in  the  bill  of  lading,  by  reason  of  the  neglect  of  the  master, 
are  not  entitled  to  recover  the  balance  claimed  by  them  for  freight, 
unless  they  can  show  an  acceptance,  by  the  shipper  or  consignee  at 
San  Francisco,  of  that  portion  of  the  shipment  which  arrived  there 
in  safety,  and  thus  bring  themselves  within  the  second  class  of 
exceptions  above  stated  to  the  general  rule  governing  entire  con- 
tracts for  the  conveyance  of  merchandise.  The  case  finds  that  on 
the  arrival  of  the  vessel  at  its  port  of  discharge  no  one  appeared  to 
receive  or  claim  the  goods.  The  consignee,  owing,  probably,  to  the 
state  of  the  market  in  San  Francisco,  by  which  the  merchandise  was 
rendered  of  less  value  there  than  the  sum  agreed  to  be  paid  for  the 
freight,  failed  to  receive  it.  In  the  absence  of  an  express  stipula- 
tion in  the  bill  of  lading  to  meet  such  a  contingency,  it  might  have 
been  the  duty  of  the  master,  having  in  his  charge  an  invoice  of 
goods  not  perishable  in  their  nature,  to  store  them  for  the  benefit  of 
the  shippers.  It  is  doubtful  whether  he  would  have  had  the  right 
to  sell  them.  Abbott  on  Shipping  (5th  Amer.  ed.),  378,  note; 
Schooner  Cassius,  2  Story,  R.  81.  However  this  may  be,  in  the 
present  case  there  was  an  agreement  in  the  bill  of  lading  by  which 
it  was  stipulated  that  the  articles,  if  not  received  by  the  consignee 
on  the  day  after  their  arrival,  might  be  sold  by  the  master.  There 
was  therefore  no  receipt  of  the  goods  by  the  regular  consignee,  from 
which  an  acceptance  of  them  can  be  inferred  to  charge  him  or  the 
shipper  a  pro  rata  freight  thereon.  It  is  contended,  however,  by  the 
plaintiffs,  that  this  clause  in  the  bill  of  lading,  giving  the  master, 
by  reason  of  their  non-acceptance,  a  right  to  sell,  and  a  sale  by  him 
in  pursuance  of  it,  are  equivalent  to  a  receipt  of  the  articles  by  the 
consignee ;  that  it  substituted  the  master  in  his  place,  and  conferred 
on  him  the  same  rights  and  powers  to  bind  the  shipper  as  his  agent, 
and  render  him  liable  for  the  freight  of  the  goods  sold  in  like  man- 
ner as  the  consignee  would  have  been,  if  he  had  taken  the  goods  on 
their  arrival.  But  it  appears  to  us  that  this  agreement  is  based  on 
too  broad  a  construction  of  this  clause  in  the  bill  of  lading.  The 
original  intent  of  the  parties  in  the  insertion  of  this  provision  for  a 
sale  of  the  goods,  was  to  give  the  master  the  right  to  realize  his 
freight-money  by  a  sale  of  the  goods,  if  they  were  not  received  and 
the  money  paid  within  the  time  specified  in  the  bill  of  lading.  If 
this  was  the  object  of  the  clause,  then,  there  having  been  no  freight 
earned,  in  consequence  of  the  failure  to  carry  the  whole  shipment, 
there  was  no  right  on  the  part  of  the  master  to  sell.  He  exceeded 
his  authority  in  making  the  sale,  and  the  owners  cannot  bind  the 
shipper  by  an  unauthorized  act  of  their  master.  But  giving  to  this 
stipulation  the  most  liberal  construction  which   in  any  view   it  is 


CARRIER'S    COMPENSAT]  s]j 

capable  of,  it  made  the  master  the  agent  of  both  parties  to  sell  the 
goods  for  the  benefit  of  whom  it  might  concern,  and  to  hold  the 
proceeds  for  those  who  should  be  legally  entitled  to  receive  them. 
It  created  a  special  and  limited  agency  only,  by  which  the  ma 
had  the  right  to  convert  the  merchandise  into  money,  but  not  th 
by  to  change  the  right  of  property  in  the  proceeds,  or  to  waive  the 
legal  rights  of  the  parties  under  their  contract. 

We  are  therefore  of  opinion  that  the  contract  of  affreightment  in 
the  present  case  was  an  entire  one,  by  which  the  plaintiffs  under- 
took the  carriage  and  delivery  of  the  goods  specified  in  the  bill  of 
lading;  and  a  portion  of  them  having  been  lost  through  the  fault 
of  the  master,  and  there  being  no  proof  of  an  acceptance  of  that 
portion  which  arrived  in  safety  by  the  shipper  or  any  authorized 
agent  in  his  behalf,  that  the  plaintiffs  are  not  entitled  to  recover  the 
balance  of  freight  claimed  to  be  due  by  them. 

It  is  urged  that  the  plaintiffs  were  entitled  to  their  freight,  because 
they  had  replaced  the  articles  lost  by  payment  to  the  purchasers  of 
a  sum  equivalent  to  their  value,  and  thus  virtually  made  good  the 
shipment  in  San  Francisco.  But  the  difficulty  in  this  argument  is 
that  the  master  had  no  authority  from  the  defendant  to  change  his 
rights  by  any  such  payment.  His  authority  was  confined  to  a  sale 
of  the  goods  which  arrived.  Beyond  that,  his  acts  could  in  no  way 
affect  the  defendant,  who,  if  he  had  been  present,  would  have  been 
entitled  to  the  goods  free  from  any  charge  for  freight. 

It  is  further  argued  that  the  owners  of  a  vessel  are  not  responsible 
for  mere  abstract  and  inconsequential  negligence  on  the  part  of  the 
master,  but  only  for  the  actual  results  of  his  faults  and  omissions. 
This  maybe  so;  but  it  does  not  help  the  plaintiffs  in  the  present 
case,  because  the  jury  have  found,  under  the  instructions  given  to 
them,  that  the  goods  were  lost  by  reason  of  their  being  improperly 
stowed  on  deck.  It  must  now,  therefore,  be  assumed  that  there  was 
actual  negligence  and  fault  on  the  part  of  the  agent  of  the  owners  by 
reason  of  which  they  failed  to  fulfil  their  contract. 

In  the  view  we  have  taken  of  this  case,  it  becomes  unnecessary  to 
decide  upon  the  admissibility  of  the  evidence  which  tended  to  show 
that  the  articles  shipped  were  parts  of  an  entire  structure,  intended 
to  be  erected  in  California.  It  is  quite  sufficient,  without  such 
proof,  that  they  formed  part  of  an  entire  subject-matter  in  the  con- 
tract; and  for  the  reasons  already  given,  not  having  been  delivered 
by  the  plaintiffs  according  to  their  agreement,  an  action  cannot  be 

maintained  for  the  freight-money. 

Exceptions  <><•>  rruled. 

It  is  clear  that,  by  the  general  maritime  law,  freight,  whether  by 
charter-party  or  bill  of  lading,  is  due  only  for  articles  delivered. 
The  contract,  though  it  consists  of  two  parts,  is  necessarily  one, 
unless  otherwise  provided.     It  is  both  to  convey  and  deliver,  and  is 


816  CARRIERS    OF    GOODS. 

not  completed  until  the  delivery.  It  may  be  agreed  that  freight 
shall  be  paid  on  all  the  goods  received  on  board,  as  is  frequently 
done  in  the  case  of  livestock,  which  is  much  exposed  in  the  trans- 
portation; but,  unless  the  parties  otherwise  agree,  freight  is  due 
only  for  that  which  is  delivered,  or  for  which  there  is  a  lawful 
excuse  for  non-delivery.  3  Kent,  Comm.  225,  226;  1  Pars.  Mar. 
Law,  142-219.  If  casks  or  boxes  in  which  goods  have  been  packed 
arrive  empty,  or  nearly  so,  so  that  the  goods  are  not  worth  the 
freight,  though  it  was  formerly  a  much-disputed  question,  it  is  now 
settled  that  they  cannot  be  abandoned  by  the  shipper  for  freight 
when  this  is  by  ordinary  leakage  or  the  natural  vice  of  the  articles. 
3  Kent,  Comm.  324;  1  Valin  Comm.  670;  Poth.  Chart.  No.  57;  Abb. 
Ship.  (Am.  ed.),  433-435.  But  if  lost  not  by  ordinary  leakage,  but 
by  the  dangers  of  the  seas,  no  freight  is  due.  This  will  excuse  the 
carrier  from  paying  the  price  of  the  goods,  but  not  from  a  delivery. 
In  the  case  of  ordinary  leakage,  the  carrier  has  performed  his  con- 
tract, so  far  as  depended  on  him;  in  the  latter  his  contract  is  to 
carry  and  deliver  the  goods,  the  dangers  of  the  seas  excepted,  and 
as  he  is  prevented  from  a  delivery  by  these  dangers,  his  freight  is 
not  earned.     Ware,  D.  J.,  in  The  Cuba,  3  Ware,  260. 


It  may  happen,  however,  that  goods  existing  in  specie  when 
brought  to  the  place  of  destination  are  so  deteriorated  in  condition 
as  not  to  be  worth  the  freight;  and  then  arises  the  question  whether 
the  merchant  is  bound  to  pay  the  freight,  or  is  at  liberty  to  abandon 
the  goods  to  the  shipowner  for  his  claim.  In  considering  it,  the 
causes  from  which  the  deterioration  in  the  merchandise  may  proceed 
must  be  distinguished.  If  it  proceeds  from  the  fault  of  the  masters 
or  mariners,  the  merchant  is  entitled  to  a  compensation  and  may 
recover  it  against  the  owners  or  master.  On  the  other  hand,  if  the 
deterioration  proceeds  from  an  intrinsic  principle  of  decay  naturally 
inherent  in  the  commodity  itself,  whether  active  in  every  situation 
or  only  in  the  confinement  and  closeness  of  the  ship,  the  merchant 
must  bear  the  loss  and  pay  the  freight.  The  master  and  owners  are 
in  no  fault;  nor  does  their  contract,  though  taken  as  the  contract  of 
common  carriers,  contain  an  insurance  or  guaranty  against  such  an 
event.  Maclachlan  on  Shipping,  469,  as  quoted  with  approval  in 
Seaman  v.  Adler,  37  Fed.  E.  268. 


The  master  has  a  lien  on  the  property  to  enable  him  to  earn  his 
freight.  The  moment  the  transportation  begins,  the  lien  attaches, 
and  is  not  divested  so  long  as  the  master  is  proceeding  not  in  default. 
The  consignor  is  not  bound  to  pay  until  the  transportation  is  com- 
pleted in  accordance  with  the  contract,  but  he  may  not  prevent  the 
master's  earning  his  freight.     If  he  takes  possession  of  the  goods 


carrier's  compensation.  817 

short  of  their  destination,  when  the  master,  not  in  default,  is  willing 
and  able  to  complete  the  transportation,  he  must  pay  full  freight. 
He  has  prevented  or  waived  the  performance  of  the  condition  prece- 
dent. The  law,  therefore,  regards  it  as  performed.  It  is  true  that 
in  this  case  the  performance  was  prevented  by  the  consignee,  and 
not  by  the  shipper;  but  in  this  respect  the  consignor  is  represented 
by  the  consignee,  and  the  former  is  responsible  for  the  acts  of  the 
latter.  The  consignor  has  done  his  full  duty  to  the  consignee  when 
lie  has  paid  or  agreed  to  pay  freight  to  a  certain  point.  If  the  con- 
signee sees  fit  to  take  the  goods  at  some  other  place  when  the  trans- 
portation is  only  partially  completed,  and  when  the  master  is  able 
and  willing  to  perform  his  contract,  he,  the  consignee,  can  make  no 
claim  against  the  consignor,  and  the  latter  should  therefore  pay  the 
freight  which  the  master  was  able,  willing,  and  had  a  legal  right  to 
earn.  There  can  be  no  action  unless  delivery  is  either  made  or 
prevented  from  being  made  by  the  act  or  fault  of  the  shipper  or 
consignee.  1  Pars.  Shipp.  &  Adm.  220.  Per  Corliss,  C.  J.,  in 
Braithwait  v.  Power,  1  N.  Dak.,  455. 


WESTERN  TRANSP.   CO.    v.   HOYT. 
69  N.  Y.  230.     1877. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  second  judicial  department,  affirming  a  judgment  in  favor  of 
defendants,  entered  upon  an  order  nonsuiting  plaintiff  on  trial. 

This  action  was  brought  by  plaintiff  as  a  common  carrier  to  recover 
freight  and  charges  on  a  cargo  of  oats  alleged  to  have  been  trans- 
ported for  and  delivered  to  defendants. 

Plaintiff  received  the  oats  at  Buffalo,  giving  the  following  bill  of 

lading  therefor : — 

"Buffalo,  October  9th,  1869. 

"  Shipped  by   Barclay,   Bruce,  &   Co.,  in  apparent  good  order,  on    board 

canal-boat  '  Clio,'  of  W.  T.  Co.  Line,  Captain  ,  the  following  described 

property,  to  be  transported  to  the  place  of  destination,  without  unnecessary 
delay,  and  delivered  to  the  consignees,  in  like  good  order,  as  noted  below  in 
the  customary  manner,  free  of  lighterage,  upon  payment  of  freight  and 
charges,  as  prescribed  in  this  bill.  Consignees  to  pay  all  harbor  towing, 
from  and  to  the  usual  place  of  landing.  Three  week-days,  regardless  of 
weather  after  arrival,  and  notice  of  same,  to  be  allowed  consignees  to  dis- 
charge this  cargo,  after  which  time  the  cargo  or  consignees  are  to  pay  demur- 
rage, at  the  rate  of  one  and  one-half  per  cent  per  day,  upon  the  freight, 
including  tolls,  for  each  and  every  day  of  such  demurrage,  over  the  three 
days  as  above  specified,  until  the  cargo  is  fully  discharged.  All  damage, 
caused  by  the  boat  or  carrier,  or  deficiency  in  the  cargo,  from  quantity,  as 
herein  specified,  to  be  paid  for  by  the  carrier,  and  deducted  from  the  freight, 
and  any  excess  in  the  cargo  to  be  paid  for  to  the  carrier  by  the  consignees. 


818  CARRIERS    OF    GOODS. 

In  case  grain  becomes  heated  while  in  transit,  the  carrier  shall  deliver  his 
entire  cargo,  and  pay  only  for  any  deficiency,  caused  by  heating,  exceeding 
five  bushels,  for  each  one  thousand  bushels.  The  freight,  charges,  and  de- 
murrage, payable  to or  order,  at  the  place  of  destination,  who  is  the 

only  party  authorized  to  collect  the  same,  and  whose  receipt  shall  be  in  full, 
for  all  demands  on  this  cargo  or  bill  of  lading. 

"  Tolls  on  this  cargo  having  been  advanced  by  shippers,  if  refunded,  must 
be  to  them  or  their  order. 

"  Ace.  Geo.  Ellison,  14,650  bush.  No.  2  oats,  ex.  cargo. 

"Care  Jesse  Hoyt  &  Co.,  Bk.  Pathfinder,  Canal. 

"  New  York,  Fit.  Buff,  to  N.  Y.,  10. 

"  Lake  frt.  and  Buff.  Chgs.,  5|  —  842.38. 

41  Subject  to  Barclay,  Bruce,  &  Co.'s  sight  draft  on  Messrs.  Jesse  Hoyt  &  Co., 
New  York,  for  fifty-six  hundred  and  three  63-100  dollars  for  advances. 

"The  W.  T.  Co., 

"G.  P.  Morgan." 

The  boat  with  the  oats  arrived  safely  at  New  York,  Friday, 
November  5th,  1869,  and  notice  thereof  was  given  to  the  consignees 
on  the  same  day  at  ten  minutes  past  twelve.  On  the  next  day,  and 
on  Monday,  defendants  were  requested  to  give  the  boat  despatch, 
and  on  Tuesday,  the  9th  November,  they  were  notified  that  unless 
the  cargo  was  discharged  it  would  be  put  in  store.  On  the  9th, 
5,000  bushels  were  removed  from  the  boat  by  an  elevator  procured  by 
defendants.  After  the  delivery  of  that  amount,  the  elevator  stopped. 
Plaintiff's  agent  thereupon  directed  that  if  the  boat  was  not  dis- 
charged by  six  p.m.  to  take  it  to  store.  At  about  that  hour,  it  not 
having  been  discharged,  it  was  by  plaintiff's  order  taken  to  Brooklyn, 
and  the  oats  stored  with  one  Barber,  a  warehouseman.  In  March, 
1871,  Barber  delivered  the  possession  of  the  oats  to  defendants  upon 
their  demand,  they  indemnifying  against  any  claim  of  the  plaintiff. 

Further  facts  appear  in  the  opinion. 

Church,  Ch.  J.  The  decision  in  the  case  of  the  present  plaintiff 
against  Barber,  56  N.  Y.  544,  disposes  of  some  of  the  questions 
involved  in  this  case.  That  was  an  action  for  conversion  against 
the  warehouseman  for  delivering  the  oats  to  the  defendants,  and  it 
was  there  held  that  the  proper  construction  of  the  bill  of  lading  was 
to  give  the  defendants,  who  were  consignees ,  three  full  week-days 
to  discharge  the  cargo,  and  such  reasonable  time  after  that  period  as 
the  circumstances  might  require,  upon  paying  the  specified  demur- 
rage, but  that  the  carrier  might  terminate  this  additional  privilege 
or  right  by  a  proper  notice.  It  appears  in  this,  as  in  that  case,  that 
notice  of  the  arrival  of  a  boat,  "Clio,"  was  given  to  the  consignees, 
on  Friday,  at  ten  minutes  past  twelve,  and  it  was  not  disputed  on 
the  trial  that  when  the  notice  is  after  twelve  o'clock,  that  day  is  not 
to  be  counted  as  any  part  of  the  three  days  given  absolutely  for  the 
discharge  of  the  cargo,  and  it  appeared,  and  seems  not  to  have  been 
disputed,  that  the  three  days  would  not  expire  until  Tuesday  night 
at  twelve  o'clock.     We  held  that  the  act  of  the  carrier  in  removing 


CARRIER'S    COMPENSATION.  gjg 

his  boat,  and  storing  the  grain  elsewhere,  on  Tuesday,  prior  to  the 
expiration  of  the  three  days,  was  wrongful,  and  amounted  to  a  con- 
version, and  deprived  him  of  his  lien  for  freight.  The  cast-  was  not 
materially  changed  in  this  respect  upon  the  trial  of  this  action. 
The  notice  which  was  claimed  to  have  been  given  was  given  on 
Tuesday  morning,  to  the  effect  that  unless  the  cargo  was  discharged 
on  that  day  the  oats  would  be  stored.  Such  a  notice  would  not 
relieve  the  plaintiff  from  the  consequences  of  his  wrongful  act  in 
storing  the  oats,  for  the  reason  that  the  day  extended,  as  was  proved, 
to  midnight,  and  the  plaintiff  violated  the  notice  by  removing  the 
boat  several  hours  previously.  He  could  not  by  a  notice  shorten 
the  time  fixed  by  the  contract  itself.  The  construction  of  the  bill 
of  lading,  the  character  of  the  act  of  the  plaintiff  in  storing  the  oats, 
and  the  effect  of  the  act  upon  its  rights  to  a  lien  for  freight  must  be 
regarded  as  adjudged  and  settled  in  the  case  referred  to. 

Other  questions  are  presented  upon  this  appeal,  which  must  be 
considered.  About  5,000  of  the  14,000  bushels  of  the  oats  were 
removed  from  the  boat  by  the  elevator  procured  by  the  defendants, 
and  the  remainder  were  stored  in  Barber's  warehouse.  Subsequently, 
the  defendants  demanded  and  obtained  possession  of  the  oats  from 
Barber  upon  giving  him  indemnity  against  any  claim  of  plaintiff  for 
freight  or  for  the  oats.  It  is  urged  that  the  defendants  taking  pos- 
session of  the  property  entitled  the  plaintiff  to  the  freight.  There 
is  some  apparent  plausibility  in  equity  in  this  position,  but  it  must 
be  observed  that  a  delivery  to  the  consignees  is  as  much  a  part  of 
the  contract  as  the  transportation.  Mr.  Angell,  in  his  work  on  car- 
riers, says :  "  It  is  not  enough  that  the  goods  be  carried  in  safety  to 
the  place  of  delivery,  but  the  carrier  must,  without  any  demand 
upon  him,  deliver,  and  he  is  not  entitled  to  freight  until  the  contract 
for  a  complete  delivery  is  performed."  §  282.  When  the  responsi- 
bility has  begun,  it  continues  until  there  has  been  a  due  delivery  by 
the  carrier.  Id.,  note  1,  and  cases  cited.  Parsons  on  Shipping, 
220.  And  in  this  case,  the  bill  of  lading  expressly  requires  the 
property  to  be  transported  and  delivered  to  the  consignees.  The 
delivery  was  as  essential  to  performance  as  transportation  to  New- 
York,  and  it  is  a  substantial  part  of  the  contract.  The  plaintiff 
might  as  well,  in  a  legal  view,  have  stopped  at  Albany,  or  any  other 
intermediate  port,  and  stored  the  grain,  as  to  have  stored  it  in 
Brooklyn.  In  either  case  he  could  not  aver  a  full  performance,  nor 
that  he  was  prevented  by  the  defendants  from  performing.  It  fol- 
lows that  he  cannot  recover  upon  the  contract.  Performance  is  a 
condition  precedent  to  a  recovery.  As  said  by  Lord  Ellenborough 
in  Liddard  v.  Lopes,  10  East,  526,  "The  parties  have  entered  into  a 
special  contract  by  which  freight  is  made  payable  in  one  event  only, 
that  of  a  right  delivery  of  the  cargo  according  to  the  terms  of  the 
contract,  and  that  event  has  not  taken  place,  there  has  been  no  such 
delivery,  and  consequently  the  plaintiff  is  not  entitled  to  recover."' 


820  CAKRIERS    OF   GOODS. 

As  the  plaintiff  cannot  recover  under  the  contract,  if  he  has  any 
claim  for  freight  it  is  only  iox  pro  rata  freight,  which  is  sometimes 
allowed,  when  the  transportation  has  been  interrupted  or  prevented 
by  stress  of  weather  or  other  cause.  In  such  a  case,  if  the  freighter 
or  his  consignee  is  willing  to  dispense  with  the  performance  of  the 
whole  voyage,  and  voluntarily  accept  the  goods  before  the  complete 
service  is  rendered,  a  proportionate  amount  of  freight  will  be  due 
as  "freight  pro  rata  iti?ieris."  This  principle  was  derived  from  the 
marine  law,  and  it  is  said  that  the  common  law  presumes  a  promise 
to  that  effect  as  being  made  by  the  party  who  consents  to  accept  his 
goods  at  a  place  short  of  the  port  of  destination,  for  he  obtains  his 
property  with  the  advantage  of  the  carriage  thus  far.  The  principle 
is  based  upon  the  idea  of  a  new  contract,  and  not  upon  the  right  to 
recover  upon  the  original  contract.  The  application  of  this  principle 
has  been  considerably  modified  by  the  courts.  In  the  early  case  of 
Luke  v.  Lyde,  2  Burr.  889,  a  contract  was  inferred  from  the  fact  of 
acceptance,  and  the  rule  was  enunciated  without  qualification  that 
from  such  fact,  without  regard  to  the  circumstances,  and  whether 
the  acceptance  was  voluntary  or  from  necessity,  a  new  contract  to 
pay  pro  rata  freight  might  be  inferred.  Some  later  English  cases, 
and  the  earlier  American  cases,  apparently  followed  this  rule;  but 
the  rule  has  been  in  both  countries  materially  modified,  and  it  is 
now  held  that  taking  possession  from  necessity  to  save  the  property 
from  destruction,  or  in  consequence  of  the  wrongful  act  of  the 
freighter,  as  in  Hunter  v.  Prinsey,  10  East,  394,  and  in  13  M.  & 
Wels.  229,  where  the  master  caused  the  goods  to  be  sold,  or  when 
the  carrier  refused  to  complete  the  performance  of  his  contract,  the 
carrier  is  not  entitled  to  any  freight.  Parke,  B.,  in  the  last  case, 
stated  the  rule  with  approval,  that  to  justify  a  claim  for  pro  rata 
freight  there  must  be  a  voluntary  acceptance  of  the  goods  at  an 
intermediate  port,  in  such  a  mode  as  to  raise  a  fair  inference  that 
the  further  carriage  of  the  goods  was  intentionally  dispensed  with; 
and  Lord  Ellenborough,  in  Hunter  v.  Prinsey,  supra,  said:  "The 
general  property  in  the  goods  is  in  the  freighter;  the  shipowner 
has  no  right  to  withhold  the  possession  from  him  unless  he  has 
either  earned  his  freight  or  is  going  to  earn  it.  If  no  freight  be 
earned,  and  he  decline  proceeding  to  earn  any,  the  freighter  has  a 
right  to  the  possession." 

Thompson,  Ch.  J.,  in  15  J.  P.  12,  said:  "If  the  shipowner  will 
not  or  cannot  carry  on  the  cargo,  the  freighter  is  entitled  to  receive 
his  goods  without  paying  freight."  It  was  unnecessary  to  review 
the  authorities.  The  subject  is  considered  in  Angell  on  Carriers, 
§  402  to  409,  and  Abbott  on  Shipping,  5th  Am.  ed.  547,  and  in  the 
notes  and  numerous  cases  referred  to,  and  the  rule  as  above  stated 
seems  to  have  been  generally  adopted  by  nearly  all  the  recent 
decisions,  and  its  manifest  justice  commends  itself  to  our  judgment. 
In  this  case  no  inference  of  a  promise  to  j>a,y  pro  rata  or  any  freight 


CARRIER'S   COMPENSATION.  821 

can  be  drawn.  The  circumstances  strongly  repel  any  such  inten- 
tion. The  carrier  doubtless  acted  in  accordance  with  what  it  believed 
to  be  its  legal  rights,  but  the  act  of  storing  was  a  refusal  to  deliver, 
and,  as  we  held  in  the  Barber  case,  supra,  a  wrongful  act  amounting 
to  conversion,  quite  equal  in  effect  to  the  sale  of  the  goods  in  the 
cases  cited.  The  carrier  must  therefore  be  regarded  as  refusing  to 
deliver  the  oats.  Neither  the  owner  nor  his  consignee  intended  to 
waive  a  full  performance  or  to  assume  voluntarily  to  relieve  the 
plaintiff  from  non-performance.  They  claimed  the  possession  of 
the  property  and  the  right  to  possession  discharged  from  all  claim 
for  freight,  and  indemnified  the  warehouseman  against  such  claim. 
Every  circumstance  repels  the  idea  of  a  promise  to  pay  pro  rata  freight. 
The  case  stands,  therefore,  unembarrassed  by  the  circumstance  that 
the  consignee  took  possession  of  the  property  under  the  circumstances, 
and  it  presents  the  ordinary  case  of  an  action  on  contract  where  the 
party  seeking  to  enforce  it  has  not  shown  a  full  performance. 

The  next  question  is,  whether  the  plaintiff  is  entitled  to  freight 
upon  the  5,000  bushels  delivered.  The  contract  for  freight  is  an 
entirety,  and  this  applies  as  well  to  a  delivery  of  the  whole  quantity 
of  goods  as  to  a  delivery  at  all,  or  as  to  a  full  transportation.  Par- 
sons on  Shipping,  204.  There  are  cases  where  this  rule  as  to  quan- 
tity has  been  qualified,  but  they  have,  I  think,  no  application  to  the 
present  case.  The  delivery  of  the  5,000  bushels  was  made  with  the 
understanding  and  expectation  that  the  whole  quantity  was  to  be 
delivered,  and  no  inference  can  be  drawn  of  an  intention  to  pay 
freight  in  part  without  a  delivery  of  the  whole.  The  quantity 
delivered  must  be  regarded  as  having  been  received  subject  to  the 
delivery  of  the  whole  cargo.  There  was  no  waiver.  The  principle 
involved  is  analogous  to  a  part  delivery  from  time  to  time  of  per- 
sonal property  sold  and  required  to  be  delivered.  If  the  whole  is 
not  delivered,  no  recovery  can  be  had  for  that  portion  delivered. 
18  Wend.  187;  13  J.  R.  94;  24  N.  Y.  317. 

The  claim  for  lake  and  Buffalo  charges  stands,  I  think,  upon  a 
different  footing.  These  are  stated  in  the  bill  of  lading  at  5|  cents 
a  bushel,  amounting  to  $842.38.  It  must  be  presumed,  as  the  case 
appears,  that  the  plaintiff  advanced  these  charges;  and,  if  so,  it 
becomes  subrogated  to  the  rights  of  the  antecedent  carrier.  The 
claim  for  these  charges  was  complete  when  the  plaintiff  received  the 
property  to  transport,  and  was  not  merged  in  the  condition  requir- 
ing the  performance  of  the  contract  by  the  plaintiff  to  transport  the 
property  from  Buffalo.  That  contract  was  independent  of  this 
claim.  The  bill  of  lading  is  for  transportation  and  delivery  upon 
payment  of  freight  and  charges ;  but  if  the  plaintiff  had  a  right  to 
demand  any  part  of  the  charges  independent  of  the  bill  of  lading, 
that  instrument  would  not  deprive  him  of  such  right.  We  have 
been  referred  to  no  authority  making  a  liability  upon  such  an  ad- 
vance dependent  upon  the  performance  of  the  contract  for  subse- 


822  CAKEIERS   OF    GOODS. 

quent  carriage.  If  the  action  had  been  by  the  lake  carrier  to 
recover  for  the  freight  to  Buffalo,  it  is  very  clear  that  the  defend- 
ants could  not  have  interposed  as  a  defence  that  the  carrier  from 
Buffalo  had  not  performed;  and  why  is  not  the  plaintiff  entitled  to 
the  same  rights  in  respect  to  this  claim  as  the  former  carrier? 

I  am  unable  to  answer  this  question   satisfactorily,  as  the  case 
now  appears. 

If  these  views  are  correct,  a  nonsuit  was  improper,    and  there 
must  be  a  new  trial  with  costs  to  abide  event. 

Judgment  reversed. 


WOOSTER   v.   TARR. 
8  Allen  (Mass.),  270.     1864. 

Contract  to  recover  for  the  carriage  of  mackerel  from  Halifax 
to  Boston. 

It  was  agreed  in  the  Superior  Court  that  the  defendants  shipped 
the  mackerel  at  Halifax/ upon  a  vessel  of  which  the  plaintiffs  were 
part  owners,  said  Wooster  being  master,  under  a  bill  of  lading  in 
the  usual  form,  to  be  delivered  at  Boston  "unto  Messrs.  R.  A.  Howes 
&  Co.,  or  to  their  assigns,  he  or  they  paying  freight  for  said  goods," 
etc.  On  the  arrival  of  the  vessel  at  Boston,  -Wooster  was  informed 
by  Howes  &  Co.  that  the  mackerel  had  been  sold  "to  arrive,"  to  a 
person  to  whom  they  requested  him  to  deliver  them.  The  mackerel 
were  accordingly  delivered,  and  payment  demanded  of  Howes  &  Co., 
but  refused.  Howes  &  Co.  were  then  and  still  are  insolvent.  The 
mackerel,  at  the  time  of  their  delivery  on  board  the  vessel,  had  been 
purchased  and  paid  for  by  the  defendants  for  and  on  account  of 
Howes  &  Co.,  at  whose  risk  they  were  after  shipment;  but  this  fact 
was  unknown  to  the  plaintiffs.  The  mackerel  were  entered  at  the 
custom-house  in  Halifax  in  the  name  of  the  defendants. 

Upon  these  facts  judgment  was  rendered  for  the  plaintiffs,  and 
the  defendants  appealed  to  this  court. 

Bigelow,  C.  J.  The  question  raised  in  this  case  is  very  fully 
discussed  in  Blanchard  v.  Page,  8  Gray,  281,  286,  290-295.  It  is 
there  stated  to  be  the  settled  doctrine  that  a  bill  of  lading  is  a 
written  simple  contract  between  a  shipper  of  goods  and  the  ship- 
owner; the  latter  to  carry  the  goods,  and  the  former  to  pay  the 
stipulated  compensation  when  the  service  is  performed.  Of  the  cor- 
rectness of  this  statement  there  can  be  no  doubt.  The  shipper  or 
consignor,  whether  the  owner  of  the  goods  shipped  or  not,  is  the 
party  with  whom  the  owner  or  master  enters  into  the  contract  of 
affreightment.  It  is  he  that  makes  the  bailment  of  the  goods  to  be 
carried,  and,  as  the  bailor,  he  is  liable  for  the  compensation  to  be 
paid  therefor.     The  dictum  of  Bayley,  J.,   in  Moorsom  v.  Kymer, 


CARRIER'S   COMPENSATION.  s_'"> 

2  M.  &  S.  318,  subsequently  repeated  by  Lord  Tenterden  in  Drew  v. 
Bird,  Mood.  &  Malk.  156,  that  in  the  absence  of  an  express  contract 
by  the  shipper  to  pay  freight,  when  the  goods  are  by  the  bill  of  lad- 
ing to  be  delivered  on  payment  of  freight  by  the  consignee,  no 
recourse  can  be  had  for  the  price  of  the  carriage  to  the  shipper,  has 
been  distinctly  repudiated,  and  cannot  be  regarded  as  a  correct 
statement  of  the  law.  Sanders  v.  Van  Zeller,  4  Q.  B.  26<>.  284; 
Maclachlan  on  Shipping,  426. 

It  is  contended,  on  the  part  of  the  defendants,  that  the  omission 
of  the  master  to  collect  the  freight  of  the  consignees  of  the  cargo  or 
their  assigns,  under  the  circumstances  stated,  was  a  breach  of  good 
faith  towards  the  shippers,  which  operates  as  an  estoppel  on  him 
and  the  other  owners  of  the  vessel,  whose  agent  he  was,  to  demand 
the  freight-money  of  the  defendants.  But  there  are  no  facts  on 
which  to  found  an  allegation  of  bad  faith  against  the  master.  He 
did  not  act  contrary  to  his  contract  or  inconsistent  with  his  duty 
towards  the  shippers.  It  is  true  that  he  omitted  to  enforce  his  lien 
on  the  cargo  for  the  freight,  by  delivering  it  without  insisting  on 
payment  thereof  by  the  consignees.  This  was  no  violation  of  any 
obligation  which  he  had  assumed  towards  the  defendants  as  shippers 
of  the  cargo.  A  master  is  not  bound  at  his  peril  to  enforce  payment 
of  freight  from  the  consignees.  The  usual  clause  in  bills  of  lading 
that  the  cargo  is  to  be  delivered  to  the  person  named  or  his  assigne.es, 
"he  or  they  paying  freight,"  is  only  inserted  as  a  recognition  or 
assertion  of  the  right  of  the  master  to  retain  the  goods  carried  until 
his  lien  is  satisfied  by  payment  of  the  freight,  but  it  imposes  no 
obligation  en  him  to  insist  on  payment  before  delivery  of  the  cargo. 
If  he  sees  fit  to  waive  his  right  of  lien  and  to  deliver  the  goods  with- 
out payment  of  the  freight,  his  right  to  resort  to  the  shipper  for 
compensation  still  remains.  Shepard  v.  De  Bernales,  13  East,  565; 
Domett  v.  Beckford,  5  B.  &  Ad.  521,  525;  Christy  v.  Row,  1  Taunt. 
300.  Although  the  receipt  of  the  cargo  under  a  bill  of  lading  in  the 
usual  form  is  evidence  from  which  a  contract  to  pay  the  freigl it- 
money  to  the  master  or  owner  may  be  inferred,  this  is  only  a  cumu- 
lative or  additional  remedy,  which  does  not  take  away  or  impair  the 
right  to  resort  to  the  shipper  on  the  original  contract  of  bailment 
for  the  compensation  due  for  the  carriage  of  the  goods. 

Judgment  for  the  plaintiffs. 


MERIAN  v.  FUNCK. 

4  Denio  (N.  Y.  Sup.  Ct.),  110.     1847. 

Error  to  the  Superior  Court  of  the  city  of  New  York.  Funck 
and  the  other  defendants  in  error  sued  Merian  &  Benard  in  the  court 
below,  in  assumpsit,  for  freight  and  primage  on  a  quantity  of  goods 


824  CARRIERS    OF    GOODS. 

shipped  at  Havre,  and  brought  to  the  port  of  New  York  in  the  packet- 
ship  "Baltimore,"  of  which  the  plaintiffs  were  the  owners.     The 
first  parcel,  consisting  of  nine  packages,  was  received  into  the  pub- 
lic store  in  New  York,  on  a  general  order  to  discharge  the  ship,  on 
the  11th  of  November,  1839,  and  was  delivered  therefrom  to  Messrs. 
Mainon  &  Bonnay  on  the  22d  of  February  thereafter.     The  other 
parcel,  consisting   of   ten   packages,  was   brought  on  a  subsequent 
voyage  of  the  ship  "Baltimore,"  five  of  which  were  received  into  the 
store  on  a  like  order  on  the  26th  of  March,  1840,  and  delivered  to 
Mainon  &  Bonnay  on  the  22d  of  April  thereafter,  and  the  remaining 
five  packages  were   delivered  to  the   same   persons  from  the  ship. 
The  bills  of  lading  signed  by  the   master  were   produced,   and   by 
them    it   appeared  that  the   goods   were  shipped  at  Havre  by  one 
J.  Troussel,  and  that  the  master  engaged  to  carry  them  to  the  port 
of  New  York  and  there  to  deliver  them  to  the  defendants  or  to  their 
order,  on  paying  freight  and  ten  per  cent,  primage.     When  the  ship 
arrived  at  New  York  upon  each  of  the  voyages,  the  plaintiffs'  agent 
caused  a  bill  of  the   freight  of  these   goods,  and  of   other   goods 
imported  by  the  defendants  in  the  same  vessel,  to  be  made  out  and 
presented  to  the  defendants.     They  requested  that  the  freight  now 
in  question  should  be  made  out  by  the  agent  in  separate  bills  against 
Mainon  &  Bonnay,  which  was  done ;  and  the  bills  for  such  freight 
we.re  presented  to  them,   and  they  repeatedly  promised  to   pay  the 
amount.     They  failed  in  July,  1840,  without  having  paid  the  bills, 
having  on  that  day  executed  a  general  assignment  for  the  benefit  of 
their  creditors,  to  the  defendants,  to  whom  they  owed  a  considerable 
amount.     The  goods  for  which  freight  is  claimed  in  this  suit,  or  a 
considerable  part  of  them,  passed  under  this  assignment.     The  lulls 
of  lading  were  severally  indorsed  by  the  defendants,  with  a  direc- 
tion to  deliver  the  goods  to  Mainon  &  Bonnay.     The  indorsement 
on  the  bill  of  lading  of  the  first  parcel  was  dated  February  21,  1840; 
the  other  indorsement  was  without  date. 

Pierre  Bonnay,  one  of  the  firm  of  Mainon  &  Bonnay,  was  examined 
on  the  part  of  the  defendants,  and  testified  that  the  goods  on  which 
the  freight  was  charged  were  ordered  and  purchased  by  the  witness's 
house  of  a  house  in  France,  and  that  the  defendants  had  no  interest 
in  them;  that  they  were  forwarded  to  the  witness  through  the 
defendant's  house,  in  order  that  the  witness  might  settle  for  the 
purchase  price  with  the  defendants,  according  to  a  practice  which 
prevailed  in  respect  to  importations  by  the  witness  through  the 
defendant's  house;  that  the  invoices  of  the  goods  were  made  out  to 
the  witness's  house,  but  the  bill  of  lading  was  sent  to  the  defend- 
ants, to  be  transferred  on  their  receiving  payment  of  the  cost  of  the 
goods. 

The  court  charged  the  jury  that  the  defendants  were  liable  for  the 
freight  claimed,  unless  there  was  an  express  agreement  on  the  part 
of  the  plaintiffs  to  look  to  Mainon  &  Bonnay  for  the  same,  and  to 


carrier's  compensation.  825 

absolve  the  defendants  from  their  obligation.  The  defendants' 
counsel  excepted,  and  the  jury  gave  a  verdict  for  the  plaintiffs, 
upon  which  the  court  below  rendered  judgment.  A  bill  of  excep- 
tions having  been  signed,  the  defendants  brought  error. 

Jewett,  J.  The  obligation  to  pay  freight  rested  on  the  bill  of 
lading,  by  which  its  payment  was  made  a  condition  of  delivery  to 
the  consignee  or  to  his  order.  The  master  was  not  bound  to  part 
with  the  goods  until  the  freight  was  paid;  but  he  did  not,  by  deliver- 
ing the  goods  before  payment,  waive  or  discharge  his  legal  right  to 
demand  payment  of  the  person  who,  by  the  principles  of  law,  was 
primarily  liable  to  pay.  It  is  well  settled  that  when  the  goods,  by 
the  terms  of  the  bill  of  lading,  are  to  be  delivered  to  the  consignee 
or  to  his  order,  on  payment  of  freight,  the  party  receiving  them, 
whether  the  consignee  or  an  indorsee,  to  whom  the  bill  of  lading 
has  been  transferred  by  the  consignee,  makes  himself  responsible 
for  the  payment  of  the  freight.  The  law  implies  a  promise  on  his 
part  to  pay  the  freight,  such  being  the  terms  on  which,  by  the  bill 
of  lading,  the  goods  were  to  be  delivered.  The  person  who  accepts 
and  receives  the  property  thereby  makes  himself  a  party  to  the  con- 
tract. In  this  case  the  goods  were  consigned  to  the  defendants,  or 
to  their  order.  They  indorsed  the  bills  of  lading  and  ordered  a 
delivery  to  Mainon  &  Bonnay,  to  whom  the  goods  were  delivered. 
They,  and  not  the  defendants,  were  therefore  bound  to  pay  the 
freight.  Cock  v.  Taylor,  13  East,  399;  Trask  v.  Duval,  4  Wash. 
C.  C.  E.  184. 

In  Tobin  v.  Crawford,  5  Mees.  &  Wels.  235,  affirmed  on  error  in 
the  Exchequer  Chamber,  9  id.  716,  the  bills  of  lading  made  the  goods 
deliverable  to  the  shipper's  order,  or  to  his  assigns,  on  paying 
freight;  the  shipper  indorsed  the  bills  of  lading  and  forwarded 
them  to  the  defendants,  who  indorsed  them  to  their  agents,  and  the 
agents  received  the  goods.  It  was  held  that  the  defendants  were 
not  liable  for  the  freight,  because  the  contract  was  with  the  shipper 
in  the  first  instance,  and  afterwards  with  the  agents  receiving  the 
goods,  but  not  with  the  defendants,  they  having  given  no  authority, 
express  or  implied,  to  pledge  their  credit  for  the  freight.  The  only 
authority  which  could  be  implied  was  to  receive  the  goods,  paying 
the  freight  on  delivery.  The  case  establishes  the  principle  that  the 
party  who.  actually  receives  the  goods  under  the  bill  of  lading 
becomes  thereby  a  party  to  its  stipulations  respecting  freight.  The 
charge  of  the  court  below  was  therefore  erroneous,  and  the  judgment 
must  be  reversed. 

Judgment  reversed. 


826  CARRIERS    OF    GOODS. 


SCAIFE   v.   TOBIN. 
King's  Bench.     3  Barn.  &  Ad.  523.     1832. 

This  was  an  action  by  the  plaintiffs  as  surviving  owners  of  the 
brig  " Solon,"  against  the  defendant  as  consignee  at  Liverpool  of 
goods  shipped  on  board  the  "Solon  "at  Demerara,  upon  a  voyage 
from  that  place  to  Liverpool,  for  average  loss.  At  the  trial  before 
7>ayley,  J.,  at  the  summer  assizes  for  Cumberland,  1830,  the  jury 
found  a  verdict  for  the  plaintiffs,  subject  to  the  opinion  of  this 
court  on  the  following  case:  — 

The  brig  "  Solon  "  sailed  from  Demerara  on  a  voyage  to  Liverpool, 
on  the  6th  of  January,  1829,  having  on  board  goods  shipped  by  one 
Cramer  on  his  own  account,  and  other  goods  shipped  by  J.  J.  Starkey 
on  his  own  account,  and  on  the  several  accounts  of  two  other  par- 
ties. They  were  consigned  to  the  defendant  by  four  several  bills  of 
lading,  each  expressing  the  goods  mentioned  in  it  were  to  be  delivered 
to  the  defendant  or  his  assigns,  paying  freight  for  the  same  with 
primage  and  average  accustomed.  The  goods  were  so  consigned  at 
the  risk  of  the  consignors.  The  course  of  dealing  between  the  con- 
signors and  the  defendant  was,  that  the  former,  upon  making  ship- 
ments, drew  bills  upon  the  defendant,  who  sold  the  consignment  on 
their  account,  carried  the  proceeds  of  the  sale  to  their  credit,  and 
debited  them  with  the  amount  paid  by  him  upon  their  bills,  charg- 
ing a  commission  upon  the  sales.  Accounts  of  these  were  rendered 
from  time  to  time  as  they  occurred,  and  accounts  current  were 
usually  rendered  half  yearly  to  January  and  July.  The  defendant 
sometimes  paid  charges  for  general  average  upon  the  goods  so  con- 
signed, and  debited  the  consignors  with  the  amount.  Whilst  the 
"  Solon  "  was  proceeding  on  her  voyage,  the  masts  were  cut  away  in 
a  storm  for  the  preservation  of  the  ship  and  cargo,  and  the  loss 
which  gave  rise  to  the  present  claim  for  average  was  thereby  occa- 
sioned. The  vessel  put  into  Holyhead  on  the  25th  of  February, 
and  remained  there  till  the  28th,  and  she  then  sailed  for  Liverpool , 
where  she  arrived  on  the  3d  of  March.  Whilst  she  was  at  Holyhead, 
the  master  wrote  a  letter  to  the  defendant  and  the  other  consignees 
of  the  goods  on  board  the  vessel,  informing  them  of  the  damage  sus- 
tained, and  requesting  instructions.  This  letter  was  received  by  the 
defendant  before  the  "Solon"  arrived  at  Liverpool,  but  no  answer 
was  sent.  The  defendant  had  also  received  bills  of  lading  and 
invoices  of  the  goods  consigned  to  him,  on  the  25th  of  February. 
On  the  9th  of  June  he  was  called  upon  to  pay  the  average  in  ques- 
tion. The  goods  consigned  to  the  defendant  were  delivered  to  him 
after  the  arrival  of  the  ship,  and  were  sold  by  him  on  account  of  the 


carrier's  compensation.  827 

consignors,  and  an  account  of  the  sale  of  Mr.  Cramer's  goods 
rendered  to  him  on  the  13th  of  April,  1829,  but  no  accounts  of  the 
sale  of  the  goods  of  the  other  consignors  were  rendered  to  them 
until  after  the  9th  of  June,  when  the  claim  for  average  was  made 
upon  the  defendant.  The  "Solon"  was  chartered  by  Mr.  Starkey  at 
Demerara,  and  the  defendant  gave  no  orders  for  the  consignment  of 
the  goods  to  him,  nor  did  he  know  that  any  goods  were  consigned 
to  him  by  the  "Solon,"  till  he  received  the  bills  of  lading  and  the 
invoices. 

Littledale,  J.1  There  is  no  doubt  that  an  absolute  owner  of 
goods  is  liable  to  pay  general  average.  But  a  mere  consignee,  who 
has  a  special  property  in  the  goods,  is  not  so  chargeable.  He  could 
not  even  pledge  the  goods  before  the  late  Act  of  Parliament.  The 
question  of  liability  here  depends  entirely  on  the  maritime  law.  It 
is  said  that  general  average  bears  an  analogy  to  freight,  and  that  if 
goods  be  delivered  to  a  consignee,  he  is  liable  to  pay  freight.  There 
is  no  doubt  that  a  consignee,  not  the  owner  of  goods,  who  receives 
them  in  pursuance  of  a  bill  of  lading,  in  which  it  is  expressed  that 
they  are  to  be  delivered  to  him,  he  paying  freight  or  demurrage,  is 
liable  to  those  charges;  but  then  he  is  so  liable  by  reason  of  a 
special  contract  implied  by  the  law  from  the  fact  of  his  having 
accepted  goods  which  were  to  be  delivered  to  him  only  on  condition 
of  his  paying  freight  and  demurrage.  In  Jesson  v.  Solly,  4  Taunt. 
52,  it  was  said  by  the  court  that  the  consignee  by  taking  the  goods 
adopted  the  contract;  that  is,  the  contract  in  the  bill  of  lading, 
whereby  the  master  agreed  with  the  shipper  to  deliver  the  goods  to 
the  consignee,  he  paying  demurrage  and  freight.  Here,  if  it  had 
been  stated  in  the  bill  of  lading  that  the  goods  were  to  be  delivered 
to  the  defendant  or  his  assigns,  he  or  they  paying  freight  and 
general  average,  he,  by  receiving  the  goods,  would  have  adopted  this 
as  his  contract,  and  would  be  presumed  to  have  contracted  to  pay  to 
the  shipowner  those  charges,  the  payment  of  which  was  made  a  con- 
dition precedent  to  the  delivery;  but  here  general  average  is  not 
mentioned.  The  argument  that  it  would  be  for  the  convenience  of 
commerce  that  a  mere  consignee,  not  the  owner,  should  be  liable  to 
general  average,  applies  equally  to  demurrage;  but  neither  the  law 
of  England  nor  the  general  law  of  the  world  makes  him  so  liable. 
It  is  said  that  the  defendant  is  liable  because  he  had  notice,  before 
he  received  the  goods,  that  they  were  subject  to  this  charge.  But 
the  law  will  not  imply  a  contract  to  pay  general  average  merely 
because  the  defendant,  before  he  received  the  goods,  knew  that  they 
were  subject  to  it.  As,  then,  there  was  no  contract,  express  or 
implied,  to  pay  general  average,  the  plaintiff  cannot  recover. 

Judgment  for  the  defendant. 

*  Opinion  of  Parke,  J.,  is  omitted. 


828  CARRIERS    OF    GOODS. 


WEGENER  v.    SMITH. 
Common  Pleas.     15  C.  B.  285.     1854. 

This  was  an  action  by  the  master  of  a  ship  called  the  "Gustave 
Adolphe,"  against  the  defendant,  a  merchant  at  Sunderland,  for 
demurrage.     Plea,  amongst  others,  never  indebted. 

The  cause  was  tried  before  Crowder,  J.,  at  the  last  assizes  at 
Durham.  The  plaintiff  put  in  a  charter-party  between  one  Schreber, 
a  merchant  at  Stettin,  and  himself,  for  the  hire  of  the  ship  for  a 
voyage  to  Sunderland  with  a  full  cargo  of  timber.  The  charter- 
party  provided  that  the  cargo  should  be  brought  alongside  and  put 
free  on  board,  to  be  delivered  at  the  port  of  discharge  on  payment 
of  a  certain  measurement  freight;  and,  in  case  of  detention,  the 
captain  to  be  paid  £5  for  every  provable  lay-day. 

The  bill  of  lading,  for  the  whole  cargo,  which  was  indorsed  to 
the  defendant,  made  the  goods  deliverable  to  order  "against  pay- 
ment of  the  agreed  freight  and  other  conditions  as  per  charter- 
party." 

The  defendant  received  the  timber  under  the  bill  of  lading,  but 
refused  to  pay  the  demurrage  claimed  by  the  plaintiff,  alleging  that 
he  was  not  liable  for  demurrage;  and  it  was  insisted,  on  his  behalf, 
at  the  trial,  that  the  action  was  not  maintainable,  that  the  master 
could  not  sue,  and  that  the  defendant  as  assignee  of  the  bill  of  lad- 
ing was  not  liable  for  demurrage,  in  the  absence  of  a  contract  on  his 
part,  express  or  implied,  to  pay  it,  and  that  there  was  no  evidence 
to  go  to  the  jury  of  any  such  implied  contract. 

On  the  other  hand,  it  was  insisted,  that  the  reference  to  the  charter- 
party  in  the  bill  of  lading  incorporated  therein  all  its  terms,  and 
amongst  others  the  contract  for  demurrage. 

The  learned  judge,  reserving  the  points,  left  the  case  to  the  jury, 
who  returned  a  verdict  for  the  plaintiff,  damages  £60. 

Jervis,  C.  J.1  As  far  as  regards  the  evidence,  the  whole  was  a 
question  for  the  jury :  they  found  for  the  plaintiff ;  and  I  do  not  under- 
stand my  brother  Crowder  to  express  himself  dissatisfied  with  the 
verdict.  The  only  question  is  as  to  the  construction  of  the  words  in 
the  bill  of  lading,  "against  payment  of  the  agreed  freight  and  other 
conditions  as  per  charter-party."  That  refers  to  the  charter-party, 
which  stipulates  for  demurrage  at  £5  per  day.  I  think  the  defendant 
was  clearly  liable  to  demurrage. 

l  Opinions  of  other  judges  are  omitted. 


carrier's  compensation.  829 

ASHMOLE   v.    WAINWRIGHT. 
Queen's  Bench.     2  Q.  B.  837.     1842. 

Assumpsit  for  money  had  and  received  and  on  account  stated. 
The  particular  claimed  £5  5s.,  paid  on,  etc.,  by  plaintiff  to  defend- 
ants, "in  order  to  obtain  possession  of  certain  goods  belonging  to 
the  plaintiff  then  in  the  custody  of  the  defendants,  and  which  said 
sum,"  etc.,  "was  paid  by  the  plaintiff  under  the  protest  that  he  was 
not  liable  to  pay  the  same  or  any  part  thereof;  or,  if  liable  to  pay 
some  part  thereof,  that  the  sum  claimed  by  the  defendants,  namely," 
etc.,  "was  an  exorbitant  and  unreasonable  claim." 

Plea:  Non-assumpsit.     Issue  thereon. 

On  the  trial  before  Colekidge,  J.,  at  the  Westminster  sittings 
after  Hilary  Term,  1841,  it  appeared  that,  in  October,  1839,  the 
defendants,  who  were  common  carriers,  conveyed  certain  goods  for 
the  plaintiff  from  Walpole  to  London,  under  circumstances  which 
induced  the  plaintiff  to  expect  that  they  would  make  no  charge  for 
so  doing.  The  goods,  being  brought  to  London,  remained  some 
time  in  the  defendants'  warehouse,  after  which,  on  the  plaintiff 
sending  for  them,  the  defendants  refused  to  give  them  to  him  except 
upon  his  paying  £5  5s.  for  carriage  and  warehouse  room.  The 
plaintiff  insisted  that  he  was  not  liable  to  pay  anything;  and  that  if 
he  was  liable  to  pay  anything,  the  demand  was  exorbitant.  In  an 
interview  which  the  plaintiff's  attorney  had  with  one  of  the  defend- 
ants at  their  place  of  business,  the  latter  declared  that  he  would 
receive  nothing  less  than  the  whole  sum  demanded.  The  attorney 
called  again  a  few  days  afterwards,  and  said  to  the  same  defendant, 
"I  suppose  you  still  refuse  to  take  anything  less  than  the  whole 
sum;  "  to  which  the  defendant  said,  "  Of  course  I  do."  The  attorney 
then  paid  him  the  £5  os.,  and  told  him  that  he  paid  it  under  protest 
as  to  both  points.  The  goods  were  then  given  up  to  the  plaintiff. 
The  learned  judge  put  three  questions  to  the  jury:  1.  Was  the 
plaintiff  to  pay  anything?  2.  Was  £5  5s.  an  unreasonable  sum'.' 
3.  If  £5  5s.  was  unreasonable,  what  was  a  reasonable  sum?  The 
jury  found  that  the  plaintiff  ought  to  pay  something;  that  the 
demand  of  £5  5s.  was  unreasonable;  that  the  reasonable  charges 
were  18s.  for  carriage,  and  12s.  6d.  for  warehouse  room.  The  learned 
judge  was  of  opinion  that  the  plaintiff  ought  to  have  tendered  that 
or  a  larger  sum;  and  a  verdict  was  entered  for  the  defendant,  with 
leave  for  the  plaintiff  to  move  to  enter  a  verdict  for  £3  14s.  6d.  if 
the  court  should  be  of  opinion  that  a  tender  was  unnecessary.  [On 
a  rule  yiisi."] 

Lord  Denman,  C.  J.  As  is  very  commonly  the  case,  each  party 
has  taken  pains  to  put  himself  in  the  wrong.     After  carriage  of  the 


830  CARRIERS    OF    GOODS. 

goods  without  express  bargain,  the  owner,  the  plaintiff,  says  that 
the  carriers,  the  defendants,  were  to  carry  them  for  nothing,  and 
he  demands  the  goods:  the  defendants  claim  what  must  now  be 
taken  to  be  a  very  exorbitant  charge,  and  refuse  to  deliver  the  goods 
except  on  payment  of  £5  5s. ;  the  plaintiff  says,  I  will  pay  it  under 
protest  that  I  do  not  owe  you  so  much.  The  jury  find  that  the 
proper  sum  is  £1  10s.  6d.  To  the  extent  of  the  difference  the 
defendants  have  received  the  plaintiff's  money;  is  there  anything 
in  the  circumstances  to  deprive  him  of  his  remedy  as  for  money 
received  by  them  to  his  use?  It  is  said  that  he  ought  to  have  ten- 
dered the  proper  charges :  the  answer  is,  that  they  ought  to  have 
told  him  the  proper  charges.  I  can  see  no  other  circumstance  to 
deprive  the  plaintiff  of  his  action  in  this  form :  the  cases  relied  on 
for  the  defendants  are  all  distinguishable;  the  utmost  extent  to 
which  they  go  is  that  the  action  does  not  lie  where  there  is  another 
adequate  remedy;  and,  as  to  equity,  when  the  defendants  had  re- 
ceived such  notice  as  they  did,  both  from  the  attorney  and  from  the 
language  of  the  particulars,  it  was  their  duty  to  pay  back  the  sums 
which  they  had  no  right  to  retain. 

Patteson,  J.  I  should  be  sorry  to  throw  any  doubt  upon  the 
point  that  an  action  for  money  had  and  received  will  lie  to  recover 
money  paid  on  the  wrongful  detainer  of  goods :  it  would  be  very 
dangerous  to  do  so,  the  doctrine  being  in  itself  so  reasonable,  and 
supported  by  so  many  authorities.  In  Lindon  v.  Hooper,  1  Cowp. 
414,  replevin  was  as  convenient  a  mode  of  recovering  the  money  as 
the  action  for  money  had  and  received;  but  replevin  would  not  iie 
here.  My  only  difficulty  has  arisen  from  the  necessity  for  a  tender. 
Astley  v.  Reynolds,  2  Strange,  915,  at  first  sight  seemed  to  be 
somewhat  in  favor  of  the  present  defendants;  for  there  a  tender  was 
made;  and  I  am  not  prepared  to  go  the  length  of  saying  that,  where 
a  party  simply  denies  that  anything  is  due,  then  pays,  and  after- 
wards sues  for  the  whole  sum,  he  may  turn  round  at  the  trial  and 
recover  part;  for  his  objecting  to  the  whole  would  be  like  a  decep- 
tion. In  this  case,  therefore,  had  there  been  nothing  to  show  that 
the  plaintiff  ever  demanded  less  than  to  have  the  goods  without  any 
payment,  according  to  his  first  claim,  I  should  hardly  have  said  that 
the  action  would  be  maintainable.  But,  on  the  further  conversation 
and  the  subsequent  applications,  an  allegation  of  overcharge  is  added 
to  the  at  first  total  denial:  the  defendants  always  demanded  the 
whole;  the  plaintiff  did  not  altogether  insist  that  nothing  at  all  was 
due;  then  the  particulars  of  demand  distinctly  show  that  the  action 
was  brought,  not  merely  to  recover  the  whole,  but  to  recover  the 
part  overcharged,  if  the  plaintiff  was  liable  at  all.  After  such  a 
notice  the  proper  course  for-the  defendant  was  to  pay  the  difference 
into  court. 

Coleridge,  J.  I  never  doubted  that  an  action  for  money  had 
and  received  might  be  maintained  to  recover  money  paid  on  the 


CARRIER'S    COMPENSATION.  831 

wrongful  detainer  of  goods.  Skeate  v.  Beale,  11  A.  &  E.  983,  is 
not  inconsistent  with  this  doctrine.  That  was  an  action  on  a  written 
agreement;  duress  of  goods  was  pleaded;  and  the  court  held  that, 
for  that  purpose,  there  was  no  distinction  between  an  agreement  and 
a  deed,  so  that  the  agreement  must  be  held  to  have  been  voluntary. 
It  is  very  true  that  some  words  in  the  judgment  go  beyond  the  point 
decided;  but  they  are  not  necessary  to  the  decision,  which  is  quite 
consistent  with  our  decision  in  the  present  case.  Here  the  only 
question  is  on  the  necessity  of  tendering  or  demanding  back  a 
specific  sum.  Taking  the  particulars  altogether,  they  are  clearly 
meant  to  convey  notice  of  the  plaintiff's  intention  to  recover  all  or 
such  part  as  he  might  be  entitled  to;  and,  after  hearing  the  argu- 
ment, I  am  satisfied  that  no  tender  of  any  specific  sum  was  neces- 
sary. The  defendants  began  wrong  by  making  an  exorbitant  de- 
mand: in  whose  knowledge,  if  not  in  theirs,  did  the  proper  charges 
lie?  Surely  the  duty  of  ascertaining  the  proper  charge  lay  on  them 
in  the  first  instance.  Looking  at  the  nature  of  the  demand,  it  could 
not  be  for  the  plaintiff  to  ascertain  the  specific  sum.     See  Jones  v. 

Tarleton,  9  M.  &  W.  675. 

Rule  absolute. 


CHASE   v.   ALLIANCE   INS.    CO. 
9  Allen  (Mass.),  311.     1864. 

Contract  upon  a  policy  of  insurance  issued  by  the  defendants, 
dated  April  25,  1862,  by  which  they  insured  the  plaintiff  for  one 
year  in  the  sum  of  $20,000  on  the  freight  of  the  ship  "Flying  Mist," 
said  freight  valued  at  $30,000  on  board  or  not  on  board.  The 
following  facts  were  agreed  in  this  court:  — 

On  the  day  when  the  policy  declared  on  was  issued,  additional 
insurance  was  effected  at  other  offices,  in  the  sum  of  $10,000,  under 
leave  granted  in  this  policy.  The  ship  "Flying  Mist "  was  then 
under  a  charter,  executed  March  4,  1862,  at  Glasgow,  in  Scotland, 
to  persons  living  there,  by  which  it  was  agreed  that  she  should 
proceed  from  London,  where  she  was  then  lying,  "to  Glasgow,  and 
there  receive  on  board  a  full  and  complete  cargo  of  sheep  and  other 
cargo,  .  .  .  and  therewith  proceed  to  Dunedin,  Xew  Zealand,  or  one 
other  port,  as  ordered  at  Otago,  .  .  .  freight  for  the  same  to  be  paid 
at  a  lump  sum  of  twenty-six  hundred  and  fifty  pounds  sterling,  .  .  . 
and,  on  delivery  of  the  outward  cargo,  the  vessel  shall  at  once  sail 
for  Melbourne,  Sidney,  Launcestown,  or  Hobart  Town,  as  ordered  by 
charterer's  agent  at  Dunedin,  etc.  .  .  .  The  freight  to  be  paid  as 
follows:  Two  thousand  pounds  cash  on  the  final  clearing  of  the  ship 
from  Greenock  .  .  .  and  the  balance  on  right  and  true  delivery  of 
the  cargo  at  Dunedin." 


832  CARRIERS    OF    GOODS. 

Under  said  charter  the  ship  sailed  for  Glasgow  and  arrived  there 
on  April  7th,  1862,  completed  her  loading,  and  sailed  for  New 
Zealand  on  the  5th  of  June,  and  was  totally  lost  by  perils  of  the 
seas  on  said  voyage,  at  the  entrance  of  the  harbor  of  Otago,  in  New 
Zealand,  on  the  27th  of  August,  1862.  Due  proof  of  loss  was  made, 
and  the  defendants  paid  to  the  plaintiff  the  sum  of  $13,235.32,  under 
the  policy;  and  the  plaintiff  claimed  an  additional  sum  as  herein- 
after stated. 

The  charterer  paid  to  the  master  of  the  ship,  on  her  clearing  from 
Greenock,  £2,000,  as  stipulated  in  the  charter,  which  sum  was  agreed 
to  be  valued  at  $10,140.37.  It  was  admitted  that  no  reclamation  of 
this  sum  has  been  made;  and  the  defendants  contended  that  the 
plaintiff  was  not  liable  to  refund  it,  and  that  the  same  should  be 
deducted  from  the  gross  sum  insured  on  the  freight,  leaving  them 
liable  only  for  the  sum  which  they  had  already  paid.  And  the 
question  submitted  to  the  court  was,  whether  said  sum  of  $10,140.37 
should  be  so  deducted ;  and  it  was  agreed  that  the  court  should  enter 
judgment  for  the  plaintiff  for  $6,764.68,  with  interest,  or  for  the 
defendants,  as  this  question  should  be  determined. 

Hoar,  J.  The  first  question  which  the  case  presents  is,  whether 
the  payment  on  account  of  freight  stipulated  in  the  charter-party, 
and  which  was  made  before  the  vessel  sailed  from  Greenock,  can  be 
recovered  back  by  the  charterer  from  the  insured.  If  it  can,  then 
the  whole  valued  freight  was  at  risk  at  the  time  of  the  loss,  and  the 
plaintiff  is  entitled  to  recover. 

"  The  general  rule  of  law ,"  as  was  said  by  the  Chief  Justice  in  the 
recent  case  of  Benner  v.  Equitable  Ins.  Co.,  6  Allen,  222,  "is,  that 
freight  paid  in  advance  is  not  earned,  unless  the  voyage  for  which 
it  is  stipulated  to  be  paid  is  fully  performed;  and  the  owner  of  the 
vessel  is  liable  to  a  claim  for  reimbursement  in  favor  of  the  shipper, 
if  for  any  fault  not  imputable  to  the  latter  the  contract  of  affreight- 
ment is  not  fulfilled.  This  rule  may  be  varied  or  annulled  by  an 
express  agreement  in  the  charter-party  or  bill  of  lading,  by  which 
it  is  provided  that  money  paid  in  advance  on  account  of  the  freight 
shall  be  deemed  to  be  absolutely  due  to  the  owner  at  the  time  of  its 
prepayment,  and  not  in  any  degree  dependent  on  the  contingency 
of  the  performance  of  the  contemplated  voyage,  and  the  entire  ful- 
filment of  the  contract  of  carriage.  But  as  such  a  stipulation  is 
intended  to  control  the  usual  rule  of  law  applicable  to  such  con- 
tracts, and  to  substitute  in  its  place  a  positive  agreement  of  the 
parties,  it  is  necessary  to  express  it  in  terms  so  clear  and  unambig- 
uous as  to  leave  no  doubt  that  such  was  the  intention  in  framing  the 
contract  of  affreightment.  Otherwise,  the  general  rule  of  law  must 
prevail."  The  doctrine  thus  stated,  and  which  was  held  upon  full 
consideration  in  Minturn  v.  Warren  Ins.  Co.,  2  Allen,  86,  renders 
any  discussion  of  the  general  proposition  unnecessary,  that  a  pay- 
ment made  in  advance  for  freight  may  be  recovered  back,   if  the 


CARRIER  S   COMPENSATION.  833 

freight  is  not  earned,  in  the  absence  of  any  express  agreement  to 
the  contrary. 

•  •••  *••••■ 

Judgment  for  the  plaintiff. 


b.    Lien. 

SKINNER  v.   UPSHAW. 

King's  Bench.     2  Ld.  Ray.  752.     1702. 

The  plaintiff  brought  an  action  of  trover  against  the  defendant, 
being  a  common  carrier,  for  goods  delivered  to  him  to  carry,  ,etc. 
Upon  not  guilty  pleaded,  the  defendant  gave  in  evidence,  that  he 
offered  to  deliver  the  goods  to  the  plaintiff,  if  he  would  pay  him  his 
hire;  but  that  the  plaintiff  refused,  etc.,  and  therefore  he  retained 
them.  And  it  was  ruled  by  Holt,  Chief  Justice  at  Guildhall  (the 
case  being  tried  before  him  there),  May  12,  1  Ann.  Reg.  1702,  that 
a  carrier  may  retain  the  goods  for  his  hire;  and  upon  direction  the 
defendant  had  a  verdict  given  for  him. 


PHILLIPS   v.    RODIE. 
King's  Bench.     15  East,  547.     1812. 

In  trover  for  179  bales  of  cotton,  which  was  tried  at  Lancaster, 
before  Wood,  B.,  a  verdict  was  found  for  the  plaintiffs  for  £1,955 
18s.  2d.,  subject  to  the  opinion  of  the  court  on  the  following  case. 

On  the  15th  of  October,  1810,  White,  the  bankrupt,  entered  into  a 
charter-party  with  the  defendants  for  the  hire  of  the  ship  "Flora," 
of  which  the  defendants  are  owners,  on  a  voyage  from  Liverpool  to 
Surinam  and  back  again. 

[By  the  charter-party,  White  was  to  pay  for  the  return  cargo  at 
specified  rates  of  freight  for  certain-named  kinds  of  goods,  and  if 
the  vessel  should  not  be  fully  laden  with  the  return  cargo,  he  was  to 
pay  for  so  much  in  addition  as  the  vessel  would  have  carried ;  and  if 
he  should  not  furnish  any  return  cargo,  then  he  should  pay  full 
freight  for  the  vessel  as  if  she  should  have  been  fully  laden.  He 
was  also  to  pay  a  certain  rate  of  demurrage  for  each  day's  delay 
beyond  a  stipulated  time  for  putting  on  board  the  cargo.  There 
was  delay  by  White's  agent  at  Surinam  in  furnishing  a  cargo,  and 
then  the  vessel  was  only  partially  loaded.      White  having  become 


834  CARRIERS    OF   GOODS. 

insolvent  before  the  return  of  the  vessel  to  Liverpool,  the  plaintiffs, 
his  assignees,  tendered  the  freight  and  charges  as  to  the  goods 
shipped,  but  defendant  demanded  an  additional  sum  for  demurrage 
and  for  freight  on  the  deficiency  of  the  cargo,  usually  called  dead 
freight,  and  detained  the  goods  under  claim  of  a  lien  therefor. 
"Verdict  was  for  plaintiffs  for  the  agreed  value  of  the  goods  detained, 
less  the  charges  thereon.  If  plaintiffs  were  found  not  to  be  entitled 
to  a  verdict  a  nonsuit  was  to  be  entered.] 

Littledale,  for  the  plaintiffs,  contended  that  the  defendants  had 
no  lien  either  for  the  demurrage  or  dead  freight;  the  claim  of  a  lien 
on  the  cargo  for  demurrage  was  neither  warranted  by  the  charter- 
party,  by  any  usage  of  trade  found,  or  by  any  legal  precedent.  But 
even  if  such  a  lien  could  exist,  it  would  have  been  waived  in  this 
case  by  the  defendants  having  taken  a  bill  payable  at  a  future  day 
for  it.  Next,  there  can  be  no  lien  for  dead  freight,  as  it  is  called, 
which  is  a  mere  nonentity,  the  only  satisfaction  for  which  rests  on 
the  covenant,  which  is  personal.  A  lien  is  properly  a  right  to  detain 
specific  property  for  something  due  in  respect  of  it  until  payment 
be  made;  such  as  artificers  have  for  the  value  of  their  work  on  the 
goods  of  another;  carriers  for  the  carriage  of  goods;  though  liens 
may  exist  in  other  cases  by  express  contract,  or  implication.  So 
owners  of  ships  have  a  lien  for  freight;  that  is,  for  the  actual  car- 
riage of  the  goods.1  If  the  freight  had  been  agreed  to  be  paid  at  so 
much  a  ton  on  the  ship's  measurement,  the  defendants  would  have 
had  a  lien  for  it  on  the  goods  actually  shipped,  whether  more  or 
less ;  but  here  it  was  made  payable  according  to  different  rates  upon 
specific  goods;  and  if  they  could  detain  the  goods  on  board  for 
freight  not  earned,  it  would  exclude  the  freighters  from  pleading 
that  they  were  ready  to  have  loaded  a  complete  cargo  but  for  the 
captain,  who  refused  to  take  it  in.  Upon  this  contract  for  different 
rates  of  freight  on  different  goods  the  amount  is  uncertain,  where 
the  freight  was  not  in  fact  earned;  so  that  the  freighters  could 
not  tell  for  how  much  they  were  to  give  their  bill ;  and  it  must  be 
equally  doubtful  by  what  rule  the  compensation  is  to  be  made;  it 
rests  therefore  in  damages,  to  be  assessed  with  reference  to  the 
usage  of  trade.2  Perhaps  it  might  be  too  much  to  say  that  there 
was  no  lien  in  this  case  upon  the  goods  unshipped  at  the  docks:  the 
unloading  is  an  act  going  on  from  day  to  day;  and  perhaps  White 
might  not  be  bound  to  give  the  bill  till  the  last  package  was  ready 
to  be  delivered. 

Richardson,  contra,  as  to  the  last  observation,  said  that  the  master 
might  continue  his  lien  by  landing  the  goods  in  the  docks  at  L.  in 
his  own  name,  and  might  make  an  entry  in  his  own  name  in  the 
dock-books,  to  continue  his  lien;  and  therefore  the  cargo  being 
several  days  in  landing  could  make  no  difference  in  this  case.     But 

1  Roceus,  p.  1,  and  Blakey  v.  Dixon,  2  Bos.  &  Pull.  321,  were  cited. 

2  Bell  v.  Puller,  2  Taunt.  299,  and  Abbot  on  Merch.  Ship.  274. 


carrier's  compensation.  835 

the  sole  question  intended  to  be  made  was  upon  the  fair  meaning  of 
the  charter-part}^  which  goes  further  than  the  common  form,  in 
stipulating  that  if  the  vessel  should  not  be  fully  laden  with  tin- 
return  cargo,  White  should  not  only  pay  freight  for  the  goods  on 
board,  but  for  so  much  in  addition  as  the  vessel  would  have  carried. 
And  it  also  provides  that  in  case  of  there  being  no  cargo  put  on 
board,  he  shall  still  pay  full  freight,  as  if  she  had  been  fully  Laden 
with  goods  of  the  above  description.  [Le  Blanc,  J.  Must  not  the 
amount  depend  upon  the  description  of  the  cargo?]  That  is  regu- 
lated by  usage,  and  the  proportions  are  understood  by  the  parties. 
The  payment  in  any  case  is  reserved  to  be  made  as  freight,  and  the 
contract  of  the  parties  must  be  construed  with  reference  to  the  state 
of  things  if  the  ship  had  been  fully  laden,  so  far  as  there  is  any 
subject-matter  for  the  accustomed  lien  to  act  upon.  [Lord  Ellen- 
borough,  C.  J.  If  any  lien  were  established  in  this  case,  it  must 
be  to  the  extent  which  the  arbitrators  should  award;  for  the  amount 
must  be  a  subject  of  reference; l  and  that  would  be  a  novel  species 
of  lien  at  common  law.]  It  may  be  calculated  by  usage,  as  easily  as 
the  value  of  work  in  ordinary  cases.  [Lord  Ellexborough,  C.  J. 
We  must  then  assume  that  there  existed  a  known  usage  in  these 
cases,  and  that  both  parties  were  cognizant  of  it  at  the  time  when 
the  contract  was  entered  into,  and  contracted  with  reference  to  it. 
Does  not  a  lien  for  freight  mean  for  goods  actually  carried?  but  this 
is  a  lien  upon  air;  for  goods  not  carried.  Bayley,  J.  What  terms 
are  there  in  the  charter-party  from  whence  it  can  be  collected  that 
the  freighters  were  bound  to  carry  such  a  proportion  of  each  com- 
modity; for  example,  what  was  there  to  oblige  them  to  load  coffee?] 
Usage  regulates  the  proportions;  and  as  there  is  no  doubt  that  an 
action  of  covenant  would  lie  to  recover  damages  for  the  breach 
in  not  loading  fully,  the  amount  must  be  capable  of  reasonable 
certainty.  If  the  goods  were  not  loaded  by  the  master's  fault,  that 
would  be  an  answer  to  the  demand;  and  whatever  would  be  a  defence 
to  an  action  on  the  covenant  would  take  away  the  lien;  and  the 
plaintiffs  might  have  discharged  the  lien  by  tendering  a  sum  sufficient 
to  discharge  the  demand. 

Lord  Ellexborough,  C.  J.  It  is  impossible  in  this  case,  without 
the  intervention  of  a  jury  or  an  arbitrator,  to  settle  what  is  the  sum 
to  be  tendered:  it  would  be  taking  a  leap  in  the  dark.  Where  there 
is  no  custom  to  regulate  the  proportions  and  the  amount,  the  case 
must  necessarily  rest  in  damages.  What  is  a  lien  for  freight  but  a 
right  to  detain  the  goods  on  board  until  the  freight  which  has  been 
actually  earned  upon  them,  which  is  always  capable  of  being  calcu- 
lated and  ascertained,  has  been  paid,  and  where  the  owner  of  the 
goods  knows  what  he  is  to  tender?  But  here  the  claim  to  retain  is 
for  the  amount  of  damages  unascertained,  which  the  parties  are 
entitled  to  recover  for  the  non-completion  of  the  cargo,  common ly 

l  See  a  case  of  this  sort,  Harrison  v.  Wright,  13  East,  343. 


836  CARRIERS    OF    GOODS. 

called  dead  freight;  but  it  is  that  term,  freight,  which  has  misled 
the  defendants;  for  it  is  not  freight,  but  an  unliquidated  compensa- 
tion for  the  loss  of  freight,  recoverable  in  the  absence  and  place  of 
freight.  The  covenant  is  in  effect  to  load  the  vessel  fully,  or  if  not, 
to  indemnify  the  shipowner  by  paying  so  much  in  addition  as  the 
vessel  would  have  carried :  the  covenant,  in  the  event  of  no  loading, 
is  to  pay  full  freight  for  the  vessel  (not  for  goods  not  loaded),  as  if 
she  had  been  loaded  with  goods  of  the  description  before  mentioned; 
that  must  depend  on  the  tonnage  of  the  vessel.  In  order  to  found 
the  argument,  the  covenant  should  have  been  to  pay  full  freight  as 
if  the  goods  had  been  actually  loaded  on  board,  and  that  the  master 
should  have  the  same  lien  upon  the  goods  actually  on  board  as  if 
the  ship  had  been  fully  laden  with  all  the  goods  covenanted  to  be 
loaded.  But  if  we  were  to  put  this  construction  upon  the  contract 
as  it  now  stands,  it  would  be  making  a  new  contract  for  the  parties. 
There  is  no  pretence  or  color  for  the  lien  now  claimed;  it  is  a  lien 
to  attach  upon  a  nonentity:  the  plaintiffs'  action  of  trover,  there- 
fore, is  not  met  by  any  defence. 

Grose,  'J.     A  lien  must  attach  upon  some  certain  thing;  and  here 
there  is  nothing  for  it  to  attach  upon. 

Postea  to  the  plaintiffs. 


CHICAGO  &  NORTHWESTERN   R.   CO.   v.   JENKINS. 

103  111.  588.     1882. 

Mr.  Justice  Walker. 

It  is  claimed  that  appellant  had  the  right  to  hold  the  property 
until  its  charges  for  demurrage  were  paid,  — that  they  were  a  lien 
on  the  property,  and  it  was  not  required  to  make  delivery  until 
they  were  paid.  The  claim  is  based  on  rules  and  regulations 
adopted  and  published  by  the  company.  It  will  be  conceded  that 
all  liens  are  created  by  law,  or  by  contract  of  the  parties.  Where 
the  law  gives  no  lien,  neither  party  can  create  it  without  the  con- 
sent or  agreement  of  the  other.  Noyes  &  Messenger  were  there- 
fore not  bound  by  these  rules  unless  they  assented  to  them  when 
the  contract  for  snipping  the  goods  was  entered  into  by  the  parties, 
and  such  a  contract  is  not  claimed.  But  it  is  insisted  that  as 
the  rules  were  public,  and  generally  understood,  it  must  be  pre- 
sumed they  assented.  For  the  purpose  of  creating  such  a  lien  on 
property  the  law  will  never  indulge  such  presumptions.  There  is 
no  evidence  or  agreement  that  either  the  consignor  or  consignee  ever 
had  notice  or  knew  of  such  regulations.  But  even  if  they  had, 
unless  they  agreed  to  be  bound  by  them  the  rule  could  create  no 
such  lien. 


carrier's  compensation.  837 

We  held,  in  the  case  of  Illinois  Central  R.  R.  Co.  v.  Alexander, 
20  111.  23,  that  railroad  companies,  when  they  had  carried  goods  to 
their  destination,  if  not  removed  by  the  consignee,  might  store  them 
in  their  warehouses,  and  thus  terminate  their  liability  as  common 
carriers,  and  thereby  assume  the  relation  and  liabilities  of  ware- 
housemen. To  the  same  effect  is  the  case  of  Richards  v.  Michigan 
Southern  and  Northern  Indiana  R.  R.  Co.,  id.  404;  and  in  the  case 
of  Porter  v.  Chicago  and  Rock  Island  R.  R.  Co.,  id.  407,  it  was  held 
it  was  their  duty  to  do  so,  or  remain  liable  for  loss  as  common  car- 
riers. It  was  held  in  the  former  of  these  cases,  that  when  stored, 
and  they  had  placed  the  goods  in  their  warehouse,  they  were  entitled 
to  charge  the  customary  price  for  such  services,  and  on  such  charges 
being  paid  or  tendered,  and  a  refusal  by  the  company  to  deliver  on 
demand,  it  became  liable  for  a  conversion. 

The  right  to  demurrage,  if  it  exists  as  a  legal  right,  is  confined 
to  the  maritime  law,  and  only  exists  as  to  carriers  by  sea-going 
vessels.  But  it  is  believed  to  exist  alone  by  force  of  contract.  All 
such  contracts  of  affreightment  contain  an  agreement  for  demurrage 
in  case  of  delay  beyond  the  period  allowed  by  the  agreement  or  the 
custom  of  the  port  allowed  the  consignee  to  receive  and  remove  the 
goods.  But  the  mode  of  doing  business  by  the  two  kinds  of  carriers 
is  essentially  different.  Railroad  companies  have  warehouses  in 
which  to  store  freights.  Owners  of  vessels  have  none.  Railroads 
discharge  cargoes  carried  by  them.  Carriers  by  ship  do  not,  but  it 
is  done  by  the  consignee.  The  masters  of  vessels  provide  in  the 
contract  for  demurrage,  while  railroads  do  not,  and  it  is  seen  these 
essential  differences  are,  under  the  rules  of  the  maritime  law, 
wholly  inapplicable  to  railroad  carriers. 

Perceiving  no  error  in  the  record,  the  judgment  of  the  Appellate 
Court  is  affirmed. 

Judgment  affirmed. 


POTTS  v.   NEW   YORK  &  NEW   ENGLAND   R.    CO. 

131  Mass.  455.     1881. 

Tort  for  the  conversion  of  a  quantity  of  coal.  Answer,  a  general 
denial.  The  case  was  submitted  to  the  Superior  Court,  and,  after 
judgment  for  the  defendant,  to  this  court,  on  appeal,  upon  an 
agreed  statement  of  facts  in  substance  as  follows :  — 

The  plaintiff,  a  coal  merchant,  sold  to  a  firm  in  Southbridge,  in 
this  commonwealth,  a  large  quantity  of  coal,  and  shipped  205  tons 
thereof  by  a  schooner  to  Norwich,  Connecticut,  to  be  thence  trans- 
ported by  the  defendant  over  its  railroad  to  the  consignees  at  South- 
bridge.  The  defendant  received  the  coal  at  Norwich,  paying  the 
water  freight  to  discharge  the  schooner's  lien,  amounting  to  $20Sj 


838  CARRIERS    OF   GOODS. 

and  then  carried  the  coal  to  Southbridge,  and  delivered  to  the  con- 
signees all  but  119  tons  thereof,  no  part  of  the  advances  for  water 
freight  nor  the  defendant's  freight  being  paid.  On  the  arrival  at 
Southbridge  of  the  119  tons,  which  is  the  coal  in  controversy,  the 
consignees  having  failed,  the  plaintiff  duly  stopped  it  in  transitu, 
and  demanded  it  of  the  defendant.  The  defendant  refused  to  deliver 
it,  claiming  a  lien  on  it  for  the  entire  amount  of  the  water  freight 
on  the  whole  cargo  paid  by  the  defendant,  and  for  the  whole  of  the 
defendant's  freight  on  the  cargo,  amounting  in  all  to  $513.  The 
plaintiff  tendered  to  the  defendant  $297,  which  was  enough  to  cover 
the  water  freight  and  the  defendant's  freight  on  the  coal  in  ques- 
tion.    The  value  of  the  coal  in  controversy  was  $696. 

If  the  defendant  had  no  right  to  hold  the  coal  as  against  the  plain- 
tiff for  the  advances  and  freight  on  the  whole  cargo,  judgment  was 
to  be  entered  for  the  plaintiff  for  $398,  with  interest  from  the  date 
of  the  writ;  otherwise,  judgment  for  the  defendant. 

Gray,  C.  J.  A  carrier  of  goods  consigned  to  one  person  under 
one  contract  has  a  lien  upon  the  whole  for  the  lawful  freight  and 
charges  on  every  part,  and  a  delivery  of  part  of  the  goods  to  the 
consignees  does  not  discharge  or  waive  that  lien  upon  the  rest  with- 
out proof  of  an  intention  so  to  do.  Sodergren  v.  Flight,  cited  in 
6  East,  622;  Abbott  on  Shipping  (7th  ed.),  377;  Lane  v.  Old 
Colony  Railroad,  14  Gray,  143;  New  Haven  &  Northampton  Co. 
v.  Campbell,  128  Mass.  104.  And  when  the  consignor  delivers 
goods  to  one  carrier  to  be  carried  over  his  route,  and  thence  over  the 
route  of  another  carrier,  he  makes  the  first  carrier  his  forwarding 
agent;  and  the  second  carrier  has  a  lien,  not  only  for  the  freight 
over  his  own  part  of  the  route,  but  also  for  any  freight  on  the  goods 
paid  by  him  to  the  first  carrier.  Briggs  v.  Boston  &  Lowell  Rail- 
road, 6  Allen,  246,  250. 

The  right  of  stoppage  in  transitu  is  an  equitable  extension,  recog- 
nized by  the  courts  of  common  law,  of  the  seller's  lien  for  the  price 
of  goods  of  which  the  buyer  has  acquired  the  property,  but  not  the 
possession.  Bloxam  v.  Sanders,  4  B.  &  C.  941,  948,  949,  and  7  D. 
&  R.  396,  405,  406;  Rowley  v.  Bigelow,  12  Pick.  307,  313.  This 
right  is  indeed  paramount  to  any  lien,  created  by  usage  or  by  agree- 
ment between  the  carrier  and  the  consignee,  for  a  general  balance  of 
account.  Oppenheim  v.  Russell,  3  B.  &  P.  42;  Jackson  v.  Nichol, 
5  Bing.  N.  C.  508,  518,  and  7  Scott,  577,  591.  See  also  Butler  v. 
Woolcott,  2  N.  R.  64;  Sears  v.  Wills,  4  Allen,  212,  216.  But  the 
common-law  lien  of  a  carrier  upon  a  particular  consignment  of  goods 
arises  from  the  act  of  the  consignor  himself  in  delivering  the  goods 
to  be  carried;  and  no  authority  has  been  cited,  and  no  reason  offered, 
to  support  the  position  that  this  lien  of  the  carrier  upon  the  whole  of 
the  same  consignment  is  not  as  valid  against  the  consignor  as  against 
the  consignee. 

Judgment  for  the  defendant. 


carrier's  compensation.  839 

CAMPBELL   v.    CONNER. 
70  N.  Y.  424.     1877. 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  affirming  a  judgment  in  favor  of  plaintiff, 
entered  upon  a  verdict. 

This  action  was  brought  by  plaintiff  as  owner  of  the  bark  "John 
Campbell,"  against  defendant,  sheriff  of  the  city  and  county  of  New 
York,  to  recover  damages  for  unlawfully  taking  and  removing  from 
said  vessel  a  quantity  of  flour,  and  for  detention  of  the  vessel.  The 
sheriff  sought  to  justify  by  virtue  of  certain  warrants  of  attachment 
against  the  shipper  of  the  flour  to  whom  bills  of  lading  had  been 
delivered.  The  flour  was  shipped  to  Hamburgh.  At  the  time  of 
the  seizure  the  attention  of  the  sheriff  was  called  by  plaintiff's  coun- 
sel to  the  fact  that  no  bond  of  indemnity  was  given,  as  required  by 
the  statute,  chap.  242,  Laws  of  1841,  and  he  was  forbidden  to  take 
the  goods;  he,  however,  persisted  in  so  doing,  detained  the  vessel, 
unloaded  and  carried  away  the  flour.  Upon  the  vessel  being  re- 
leased, the  master  procured  a  quantity  of  rosin  to  make  up  the  cargo, 
and  employed  a  stevedore  to  restow  the  cargo. 

The  seizure  of  the  vessel  and  flour  was  made  April  30,  1S74;  at 
that  time  the  vessel  was  ready  and  about  to  go  to  sea,  and  on  May  10, 
1874,  as  soon  as  able  after  the  flour  was  removed,  she  left  port. 

The  bills  of  lading,  which  had  been  issued  for  the  flour,  were 
outstanding  at  the  time  of  trial. 

On  the  trial,  plaintiff's  counsel  stated  that,  unless  a  satisfactory 
bond  of  indemnity  was  given  to  indemnify  plaintiff  from  any  lia- 
bility on  the  bills  of  lading,  he  would  require  to  be  indemnified,  by 
a  verdict,  for  the  value  of  the  flour,  and  requested  defendant  to  fur- 
nish such  bond,  which  his  counsel  declined  to  do. 

The  court  directed  a  verdict  for  $9,207.57,  composed  of  the 
following  items :  — 

Further  facts  appear  in  the  opinion. 

Church,  Ch.  J.  The  principal  question  in  this  case  is,  whether 
the  value  of  the  property  seized  and  removed  from  the  ship  was 
properly  included  as  an  item  of  damages,  which  the  plaintiff  was 
entitled  to  recover.  The  goods  had  been  shipped,  bills  of  lading 
issued,  and  were  outstanding,  and  the  vessel  was  ready  to  sail  when 
the  attachments  were  levied  and  the  goods  taken.  The  freight,  and 
charges  were  not  paid,  nor  was  any  bond  of  indemnity  given.  The 
sheriff  refused  to  give  any  bond  at  the  time  or  since.  It  did  not 
appear  on  the  trial  that  the  plaintiff  had  paid  but  a  small  amount. 
by  reason  of  the  bills  of  lading,  although  they  were  still  outstanding. 


840  CARRIERS    OF    GOODS. 

It  is  well  settled  at  common  law  that  a  shipper  cannot  insist  upon 
having  his  goods  relanded  and  delivered  to  him  at  the  port  of  outfit, 
without  paying  the  freight  and  indemnifying  the  master  against  the 
consequences  of  any  bill  of  lading  signed  by  him.  Abbott  on  Ship- 
ping, 531,  595  [4th  ed.];  Bartlett  v.  Carnley,  6  Duer,  195. 

An  assignee  of  the  bills  of  lading  for  value  would  be  entitled  to 
the  property,  and  the  master  or  owner  would  be  estopped  from  deny- 
ing that  he  had  the  goods.  28  L.  &  Eq.  R.  216.  Neither  creditors 
nor  the  sheriff  can  acquire,  through  attachment  or  other  process, 
any  better  right  to  the  property  than  the  shipper  had.  6  Duer, 
supra. 

The  Act  of  1841,  chapter  242,  carries  out,  to  some  extent,  the 
common-law  rule  by  making  it  lawful  for  the  master  to  proceed  on 
the  voyage,  notwithstanding  the  issuing  of  any  attachment  unless 
a  bond  is  given  conditioned  to  pay  all  expenses,  damages,  and  charges 
which  may  be  incurred,  or  to  which  they  may  be  subjected  for  un- 
loading the  goods,  and  for  all  necessary  detention. 

Both  the  common  law  and  the  statute  recognize  the  right  of  the 
master  or  shipowner  to  a  lien  for  freight,  expenses,  and  charges,  and 
for  his  liability  upon  outstanding  bills  of  lading,  and  they  are  neces- 
sarily co-extensive  with  the  value  of  the  goods.  It  follows,  I  think, 
that  neither  the  owner  of  the  goods  nor  any  creditor  can  take  the 
goods,  without  first  giving  the  indemnity  which  the  common-law 
rule  and  the  statute  prescribe. 

An  attachment  cannot  be  levied.  The  sheriff  is  commanded  to 
levy  the  goods  of  the  defendant  in  the  action.  The  goods  in  ques- 
tion were  not  his  property.  A  lien,  in  the  nature  of  a  special  prop- 
erty, existed  in  favor  of  the  plaintiff  to  their  full  value.  Neither 
the  shipper  nor  sheriff  had  any  more  right  to  seize  the  goods,  with- 
out furnishing  indemnity,  than  any  stranger.  The  plaintiff  was 
entitled  to  hold  the  goods  as  his  security ;  and,  if  taken  by  a  stranger, 
it  would  have  been  a  trespass,  for  which  the  plaintiff  could  recover 
their  value,  and  hold  the  proceeds  in  lieu  of  the  goods.  The  con- 
tention of  the  defendant  is  that  the  plaintiff  has  not  been  damnified. 
He  insists  that  the  rights  of  parties  are  the  same  as  if  the  action 
was  upon  the  bond,  if  one  had  been  given.  In  this,  I  think,  he  is 
in  error.  The  condition  precedent  to  his  right  to  interfere  with  the 
property  was  the  indemnity  which  the  law  requires,  and,  without 
furnishing  this  indemnity,  he  had  no  right  and  was  a  trespasser, 
unless,  perhaps,  he  could  show  bad  faith  on  the  part  of  the  carrier. 
The  plaintiff  held  the  property  as  his  security,  and,  when  unlawfully 
taken,  he  is  entitled  to  recover  its  value,  and  hold  the  amount  for 
the  same  purpose  and  to  the  same  extent  as  he  held  the  property. 
If  he  escapes  liability  upon  the  bills  of  lading,  the  equitable  powers 
of  the  court,  upon  motion  or  by  action,  can  be  invoked  to  award 
restitution  to  the  owner  of  his  creditors,  but,  until  this  is  ascer- 
tained, he  has  a  right  to  retain  the  property  or  its  value.     Any  other 


carrier's  compensation.  841 

rule  would  destroy  the  protection  which  the  law  affords.  If  the 
plaintiff  could  not  recover  the  value  of  the  goods  in  this  action,  he 
might  be  remediless,  if  his  liability  upon  the  bills  of  lading  should 
afterward  be  enforced  against  him. 

I  assume  that  the  bond  required,  at  common  law  and  by  statute,  is 
an  indemnity  only.  If  the  defendant  had  complied  with  the  law 
and  furnished  the  bond,  he  would  have  been  in  a  condition  to  invoke 
the  rule  which  he  claims,  in  respect  to  damages,  but  this  he  has 
deliberately  refused  to  do.  He  was,  therefore,  a  wrong-doer  in 
taking  the  property,  and  the  legal  consequences  follow. 

The  judgment  must  be  affirmed. 


STEAMBOAT   VIRGINIA  v.   KRAFT. 

25  Mo.  76.     1857. 

One  Whiting,  acting  as  a  forwarding  merchant  in  New  Orleans, 
shipped  for  St.  Louis,  per  the  steamboat  "Virginia,"  five  cases  of 
scythes.  When  said  goods  were  received  on  board  of  said  steam- 
boat, the  said  Whiting  demanded,  and  the  clerk  of  said  steamboat 
paid  to  said  Whiting  the  sum  of  $153.42.  Said  sum  was  entered 
as  "charges"  in  the  bill  of  lading.  Of  said  sum  of  $153.42,  a  por- 
tion—$147.92— formed  no  part  of  the  charges  paid  by  or  due 
Whiting  on  account  of  the  said  merchandise  shipped  on  the  "  Vir- 
ginia ; "  it  was  a  charge  made  by  Whiting  on  account  of  the  former 
advances,  travelling  expenses,  lawyer's  charges  for  collecting,  etc. 
The  merchandise  shipped  by  said  Whiting  as  forwarding  agent  was 
delivered  to  E.  E.  Kraft  &  Co.,  the  owners  thereof,  at  St.  Louis, 
who  refused  to  pay  to  said  steamboat  the  said  item  of  $147.92, 
alleging  that  they  were  not  liable  therefor,  but  admitting  their  lia- 
bility to  the  extent  of  the  remaining  advances.  This  suit  was 
brought  in  behalf  of  said  steamboat  to  recover  said  sum  of  $153.42. 

The  jury  returned  a  verdict  for  plaintiff  for  the  whole  amount 
sued  for. 

Scott,  Judge.  In  the  case  of  White  v.  Vann,  6  Hump.  73,  the 
court  said  it  was  "proved  by  several  enlightened  merchants  and 
well-informed  owners  of  steamboats,  that  it  is  the  long  and  well- 
established  custom  and  usage  of  trade,  not  only  on  the  Tennessee 
River,  but  throughout  the  United  States,  for  freighters  of  goods  to 
advance  to  the  forwarding  agents  the  existing  charges  upon  them, 
which  the  consignees  and  owners  are  liable  to  refund;  that  this 
usage  is  indispensable  to  the  successful  prosecution  of  commercial 
operations,  and  of  great  and  mutual  advantage  to  all  parties."     \\  a 


842  CARRIERS    OF   GOODS. 

have  copied  the  above  extract  as  showing  the  usage,  because  upon 
examination  we  have  not  been  enabled  to  find  much,  if  anything,  in 
relation  to  it.  The  advantages  resulting  from  this  usage  are  so 
obvious  that  it  must  commend  itself  to  every  one;  and  we  should 
regret  to  see  it  a  stranger  to  our  courts.  But  advantageous  as  this 
usage  is  shown  to  be,  we  do  not  know,  nor  can  we  conceive  anything 
that  would  more  effectually  render  it  odious  than  such  an  extension 
of  it  as  would  make  it  cover  advances  for  claims  or  demands  on  the 
owner  or  consignees  wholly  foreign  to  and  disconnected  with  any 
cost  or  charge  for  transportation.  If  this  were  tolerated,  not  only 
tfie  forwarding  agent,  but  every  one  who  would  collude  with  him, 
might  obtain  payment  of  demands,  whose  justice  the  owners  or  con- 
signees refused  to  recognize.  It  would  be  the  introduction  of  a 
novel  mode  for  the  collection  of  debts  where  payment  had  been 
denied  on  the  ground  of  their  invalidity,  and  a  means  of  compelling 
the  owner  to  submit  to  unjust  exactions  or  to  refuse  him  his  goods. 

As  the  debt  paid  by  the  plaintiff  through  her  agent  was  in  nowise 
incurred  by,  or  in  any  way  connected  with,  the  transportation  of 
the  merchandise,  she  could  not  by  such  voluntary  payment,  unsup- 
ported by  any  usage,  make  herself  a  creditor  of  the  defendant.  Nor 
can  the  officers  of  the  plaintiff,  by  any  custom  or  usage,  protect  her 
from  the  consequences  of  their  neglect  in  not  ascertaining  whether 
their  advances  were  the  costs  of  transportation.  Would  they 
advance  any  amount,  however  enormous,  and  expect  to  save  her 
from  loss  by  a  usage  which  did  not  require  them  to  ascertain  the 
validity  of  the  charges?  A  custom  to  encourage  negligence  at  the 
expense  of  others  would  scarcely  be  tolerated  by  the  law.  Being 
familiar  in  the  business  of  transporting  merchandise,  if  the  items 
of  the  charges  were  produced  and  examined,  the  agent  could  see  at 
once  whether  they  were  usual  and  proper. 

The  principle  that,  where  one  of  two  innocent  persons  must  suffer 
by  the  act  of  a  third,  be  should  bear  the  loss  who  has  placed  it  in 
the  power  of  the  third  person  to  do  the  injury,  has  no  application 
here.  The  plaintiff  is  not  an  innocent  party.  Her  agents  were 
guilty  of  gross  negligence  in  not  informing  themselves  of  the  nature 
of  the  charges  for  which  they  made  an  advance.  There  is  no  pre- 
tence in  the  circumstances  of  the  case  to  warrant  the  instruction  to 
the  effect  that  the  defendants,  by  receiving  the  goods,  acknowledged 
the  justice  of  the  charges,  and  were  liable  to  pay  them,  unless  the 
plaintiff,  when  she  advanced  them  through  her  agent,  knew  that 
they  were  not  the  ordinary  and  usual  charges  incurred  in  the  trans- 
portation and  shipment  of  goods. 

As  the  charge  was  illegal  and  unjust;  as  there  was  no  evidence 
that  the  defendants  were  aware  of  its  nature  when  they  received  the 
goods;  as  they  objected  to  it  so  soon  as  it  was  known;  and  as  they 
could  not  contemplate  that  an  improper  charge  would  be  made  against 
them,  —there  is  no  foundation  for  the  presumption  that  they  acqui- 


CARRIERS    COMPENSATION. 

esced  in  or  acknowledged  the  justice  of  the  plaintiff's  demand.  The 
defendants,  upon  tendering  the  legal  advances,  would  have  been 
entitled  to  the  possession  of  their  goods,  and  might  by  an  action 
have  compelled  their  delivery.  As  they  have  thein  lawfully  with- 
out suit,  there  is  no  reason  why  they  should  be  placed  in  a  worse 
situation  than  if  they  had  obtained  them  by  suit.  The  other  jnd 
concurring,  the  judgment  will  be  reversed,  and  the  cause  remanded. 


WELLS   v.   THOMAS. 

* 

27  Mo.  17.     1858. 

This  was  an  action  for  the  possession  of  an  omnibus.  The  cause 
was  tried  by  the  court  without  a  jury  upon  an  agreed  statement  of 
the  facts,  of  which  the  following  is  the  substance:  Plaintiffs  pur- 
chased the  omnibus  mentioned  in  the  petition,  of  the  value  of  five 
hundred  dollars,  of  John  Stephenson,  in  New  York,  and  instructed 
him  to  ship  it  to  them  at  St.  Louis,  Missouri.  Thereupon  said 
Stephenson,  for  the  plaintiffs,  on  the  24th  of  September,  1855.  made 
a  contract  with  the  New  York  Central  Railroad  Company  (being 
a  railroad  running  from  New  York  to  Buffalo,  in  the  State  of  New 
York)  to  deliver  said  omnibus  to  the  plaintiffs  at  St.  Louis  for 
the  sum  of  $49.33.  The  bill  of  lading  (which  was  set  forth  in 
the  agreed  statement)  was  forwarded  to  plaintiffs  at  St.  Louis. 
Stephenson  delivered  the  omnibus  to  the  New  York  Central  R ail- 
road  Company  to  be  transported  to  St.  Louis,  by  which  it  was  car- 
ried  in  the  usual  mode  and  time  to  Buffalo,  and  there  delivered  to 
the  Michigan  Central  Railroad  Company,  which  transported  the 
same  to  Joliet.  At  Joliet  the  omnibus  was  delivered  to  the  Chicago, 
Alton,  and  St.  Louis  Railroad  Company  to  be  transported  to  St. 
Louis.  The  Chicago,  Alton,  and  St.  Louis  Railroad  Company  re- 
ceived said  omnibus  in  due  course  of  business,  without  any  notice  of 
any  special  contract  for  its  transportation,  and  paid  to  the  Michigan 
Central  Railroad  Company  the  sum  of  seventy-two  dollars,  the 
amount  of  their  bill  for  the  freight  on  the  omnibus  from  Buffalo  to 
Joliet,  and  the  charges  they  had  paid  on  receiving  the  same.  It  is 
customary  for  one  railroad  company,  when  receiving  goods  from 
another  railroad  company,  to  be  carried  forward  by  the  former,  to 
pay  the  freight  and  charges  upon  said  goods  and  property  up  to  the 
point  where  they  are  so  received.  Said  omnibus  arrived  in  St.  Louis, 
and  was  in  the  possession  of  defendant,  the  agent  of  the  Chicago, 
Alton,  and  St.  Louis  Railroad  Company.  The  defendant  notified 
plaintiffs  of  the  arrival  of  the  omnibus,  and  requested  them  to  call 
and  pay  freight  and  charges,  amounting  to  $102.40.     The  plaintiffs 


844  CARRIERS    OF    GOODS. 

offered  to  pay  $49.33,  and  demanded  of  defendant  the  omnibus. 
The  defendant  refused  to  deliver  it  until  the  freight  and  charges 
advanced  to  the  Michigan  Central  Railroad  Company  and  the  freight 
from  Joliet  to  St.  Louis,  the  latter  amounting  at  the  customary  rates 
to  $30.37,  should  be  paid.  The  plaintiffs  refused  to  pay  more  than 
the  amount  tendered.  There  was  nothing  in  the  amount  or  charac- 
ter of  the  charges  paid  by  the  Chicago,  Alton,  and'St.  Louis  Railroad 
Company  to  the  Michigan  Central  Railroad  Company  to  excite  any 
suspicion  that  the  charges  were  unreasonable. 

The  court  decided  the  cause  for  the  plaintiffs.  A  motion  for  a 
review  was  made  and  overruled. 

Napton,  Judge.  Upon  the  case  agreed,  our  opinion  is  that  the 
defendant  was  entitled  to  judgment. 

We  do  not  see  how  the  contract  made  with  the  New  York  com- 
pany is  to  bind  the  Alton  and  St.  Louis  Railroad  Company  without 
showing  some  privity  between  these  corporations  or  a  knowledge  of 
the  contract  on  the  part  of  the  Alton  and  St.  Louis  company.  No 
such  privity  is  shown,  nor  is  it  pretended  that  the  companies  at  this 
end  of  the  route  were  apprised  of  any  special  agreement  about  the 
freight.  The  cases  of  Fitch  &  Gilbert  v.  Newberry,  1  Dougl.  Mich., 
and  Robinson  v.  Baker,  5  Cush.  137  [852],  are  not  applicable.  The 
Illinois  Railroad  Company  received  the  omnibus  in  the  usual  course  of 
trade  from  the  Michigan  company,  and  paid  the  freight  due  at  Joliet, 
as  the  Michigan  company  had  paid  what  was  due  at  Buffalo.  The 
omnibus  was  transported  by  the  route  desired  and  directed  by  the 
plaintiffs  and  indicated  by  the  bills  of  lading.  These  transporta- 
tion companies  received  the  omnibus  from  the  New  York  Railroad 
Company,  who  were  authorized  to  give  it  this  destination.  It  is  not 
the  case  of  goods  shipped  on  a  different  line  from  that  directed  by 
the  owner  or  sent  to  points  not  authorized. 

It  is  manifest  that  if  we  hold  the  carriers  at  this  end  of  the  route 
not  entitled  to  their  freight  because  of  a  contract  made  by  the  car- 
riers at  the  eastern  terminus,  of  which  they  had  no  knowledge,  great 
injustice  is  done  to  the  carriers  here,  and  still  greater  injury  inflicted 
upon  consignees.  The  carriers  must  protect  themselves  by  requir- 
ing freight  in  advance,  contrary  to  what  has  been  found  in  this  case 
to  be  the  established  custom. 

What  may  be  the  proper  construction  of  the  bill  of  lading  for- 
warded to  the  plaintiffs  here  by  the  New  York  Central  Railroad 
Company  is  not  material  to  be  determined.  If  the  meaning  of  it  be 
as  intended  by  the  plaintiffs,  the  New  York  company  is  of  course 
responsible ;  but  this  is  no  reason  why  defendants  should  lose  their 
lien.  If  any  arrangement  or  understanding  existed  among  these 
corporations  relative  to  through  transportation,  the  rule  would  be 
different. 

The  judgment  is  reversed. 


carrier's  compensation.  845 


BRIGGS   v.   BOSTON  &   LOWELL  R.    CO. 
6  Allen  (Mass.),  246.     1863. 

Tort  for  the  conversion  of  sixty -seven  barrels  of  flour  Upon 
agreed  facts,  which  are  stated  in  the  opinion,  judgment  was  ren- 
dered in  the  Superior  Court  for  the  plaintiff,  for  the  amount  received 
by  the  defendants  upon  the  sale  of  the  flour  by  them,  deducting  the 
sum  claimed  by  them  as  the  amount  for  which  they  had  a  lien  on 
the  flour,  and  the  expenses  of  the  sale ;  and  the  defendants  appealed 
to  this  court. 

Merrick,  J.  The  plaintiff,  who  resides  at  Racine,  in  the  State 
of  Wisconsin,  delivered  the  flour,  the  value  of  which  he  seeks  to 
recover  in  this  action,  to  the  Racine  and  Mississippi  Railroad  Com- 
pany, taking  from  their  agents  a  receipt,  in  which  they  agreed  to 
forward  and  deliver  it  to  Franklin  E.  Foster,  at  Williamstown,  in 
this  State.  By  mistake  of  the  agents  of  that  company,  the  flour 
was  erroneously  directed  or  billed  to  Wilmington,  where  there  is  a 
freight  station  on  the  road  of  the  defendants.  It  was  carried  by 
the  Racine  and  Mississippi  Company  over  their  road,  and  at  its 
eastern  termination  delivered  to  the  carriers  next  in  succession  in 
the  line  and  route  from  Racine  to  Wilmington.  And  it  was  thus 
transported  by  the  successive  carriers  in  that  line  and  route  in  their 
vessels  and  cars  respectively,  according  to  the  bills  and  directions 
under  which  it  was  forwarded  from  Racine,  until  it  arrived  in  due 
time  at  Groton,  the  point  of  the  commencement  of  the  road  of  the 
defendants.  And  it  was  there  received  by  them,  they  paying  the 
freight  earned  by  all  the  preceding  carriers,  and  carried  to  Wil- 
mington, where  it  was  duly  deposited  in  their  freight  depot.  But 
Franklin  E.  Foster,  to  whom  it  was  directed,  did  not  reside  or  have 
any  place  of  business  at  Wilmington,  and  the  defendants  were 
unable  to  find  there  any  consignee  who  could  be  notified  of  its 
arrival,  or  to  whom  it  could  be  delivered.  The  defendants'  agents 
immediately  instituted  a  diligent  inquiry,  but  they  could  not  ascer- 
tain where  the  consignee  or  any  other  person  entitled  to  have  pos- 
session of  the  flour  was 'to  be  found,  or  could  be  notified.  At  the 
time  of  its  arrival  at  Wilmington  it  was  beginning  to  become  sour, 
and  would  soon  have  greatly  deteriorated  in  value.  The  defendants 
kept  it  on  hand  in  store  for  about  two  months;  and  at  the  expira- 
tion of  that  time,  still  unable  to  find  either  the  owner  or  the  con- 
signee, and  it  being  out  of  their  power  to  procure  a  warehouse  in 
which  they  could  store  it  for  a  longer  time,  they  caused  it  to  be  sold 
at  public  auction,  and  received  the  proceeds  of  the  sale,  which  they 
have  since  retained  in  their  possession. 


846  CARRIERS    OF    GOODS. 

Upon  these  facts,  the  plaintiff  in  the  first  place  contends  that  as 
Williamstown  was  the  place  of  destination  of  the  flour  under  the 
directions  which  he  gave  to  the  Racine  and  Mississippi  Railroad 
Company,  and  according  to  their  agreement  in  the  receipt  given  for 
it  by  them  to  him  the  defendants  had  no  right  to  receive  the  flour 
at  G-roton,  and  were  guilty  of  the  unlawful  conversion  of  it  to  their 
own  use  by  transporting  it  thence  to  Wilmington;  although  in  such 
reception  and  transportation  of  it  over  their  road  they  acted  in  good 
faith,  and  strictly  in  conformity  to  the  bills  and  directions  which 
were  made  and  given  by  the  agents  of  the  Racine  and  Mississippi 
Company,  and  by  which  it  was  regularly  accompanied  over  each  and 
all  the  lines  and  routes  of  the  successive  carriers. 

The  same  person  may  be,  and  often  is,  not  only  a  common  carrier 
but  also  the  forwarding  agent  of  the  owner  of  the  goods  to  be  trans- 
ported. Story  on  Bailm.  §§  502,  537.  He  must  necessarily  act  in 
the  latter  capacity  whenever  he  receives  goods  which  are  to  be  for- 
warded not  only  on  his  own  line,  but  to  some  distant  point  beyond 
it  on  the  line  of  the  next  carrier,  or  on  that  of  the  last  of  several 
successive  carriers  on  the  regular  and  usual  route  and  course  of 
transportation,  to  which  they  are  to  be  carried  and  delivered  to  the 
consignee.  The  owner  generally  does  not  and  cannot  always  accom- 
pany them  and  give  his  personal  directions  to  each  one  of  the  suc- 
cessive carriers.  He  therefore  necessarily,  in  his  own  absence, 
devolves  upon  the  carrier  to  whom  he  delivers  the  goods  the  duty, 
and  invests  him  with  authority  to  give  the  requisite  and  proper 
directions  to  each  successive  carrier  to  whom,  in  due  course  of 
transportation,  they  shall  be  passed  over  for  the  purpose  of  being 
forwarded  to  the  place  of  their  ultimate  destination.  Otherwise 
they  would  never  reach  that  place.  For  the  first  carrier  can  only 
transport  the  goods  over  his  own  portion  of  the  line;  and  if  he  is 
not  authorized  to  give  the  carrier  with  whose  route  his  own  connects 
directions  in  reference  to  the  further  transportation,  they  must  stop 
at  that  point;  for  although,  in  general,  every  carrier  is  bound  to 
accept  and  forward  all  goods  which  are  brought  and  tendered  to 
him,  yet  he  is  not  so  bound  unless  he  is  duly  and  seasonably  informed 
and  advised  of  the  place  to  which  they  are  to  be  transported.  Story 
on  Bailm.  §  532;  Judson  v.  Western  Railroad,  4  Allen,  520. 

Hence  it  results  by  inevitable  implication  that  when  an  owner  of 
goods  delivers  them  to  a  carrier  to  be  transported  over  his  route, 
and  thence  over  the  route  of  a  succeeding  carrier,  or  the  routes  of 
several  successive  carriers,  he  makes  and  constitutes  the  persons  to 
whom  he  delivers  them  his  forwarding  agents,  for  whose  acts  in  the 
execution  of  that  agency  he  is  himself  responsible.  And  therefore 
if  the  several  successive  carriers  carry  the  goods  according  to  the 
directions  which  are  given  by  the  forwarding  agents,  they  act  under 
the  authority  of  the  owner,  and  cannot  in  any  sense  be  considered 
as  wrong-doers,  although  they  are  carried  to  a  place  to  which  he  did 


carrier's  compensation.  847 

not  intend  that  they  should  be  sent.  And  in  such  case  the  last  car- 
rier will  be  entitled  to  a  lien  upon  the  goods,  w>>\  only  for  the 
freight  earned  by  him  on  his  own  part  of  the  route,  but  also  for 
the  freight  which  has  been  accumulating  from  the  coinmencemenl 
of  the  carriage  until  he  receives  them,  which,  according  to  a  very 
convenient  custom,  which  is  now  fully  recognized  and  established 
as  a  proper  and  legal  proceeding,  he  has  paid  to  the  preceding  car- 
riers.    Stevens  v.  Boston  &  Worcester  Railroad,  8  Gray,  266. 

Applying  these  rules  and  principles  to  the  facts  developed  in  the 
present  case,  the  conclusion  is  plain  and  inevitable.  It  is  conceded 
by  the  plaintiff,  and  agreed  by  the  parties,  that  the  flour  was  carried 
by  the  Racine  and  Mississippi  Railroad  Company  over  their  road, 
and  was  then  delivered  to  the  carrier  with  whose  route  their  own 
connected,  and  was  thence  transported  in  strict  compliance  with 
and  exactly  according  to  the  directions  given  by  them  and  contained 
in  the  bills  which  they  forwarded  with  and  caused  to  accompany 
the  flour  over  the  whole  route  from  Racine  to  Wilmington,  by  the 
several  successive  carriers,  and  among  others  by  the  defendants. 
The  Racine  and  Mississippi  Company  were  the  duly  constituted  for- 
warding agents  of  the  plaintiff;  and  as  the  defendants  acted  under 
their  authority,  they  rightfully  received  the  flour  at  Groton  and 
carried  it  to  Wilmington.  And  having  under  that  authority  paid 
all  the  freight  which  had  accumulated  in  the  whole  course  of  the 
conveyance,  including  that  which  had  been  charged  by  the  forward- 
ing agent,  up  to  the  time  when  they  received  the  flour,  they  were, 
as  soon  as  it  was  conveyed  to  and  deposited  in  their  own  freight 
house,  entitled  to  a  lien  thereon  for  the  entire  freight  thus  paid  and 
earned.  And  they  cannot,  either  by  the  transportation  of  it  under 
such  circumstances  over  their  own  road,  or  by  the  detention  thereof 
for  the  purpose  of  enforcing  their  lien  upon  it,  be  held  to  have 
unlawfully  converted  it  to  their  own  use. 

This  conclusion  does  not  at  all  conflict  with  the  decision  in  the  case 
of  Robinson  v.  Baker,  5  Cush.  137  [852],  upon  which  the  plaintiff, 
in  support  of  his  position,  chiefly  relies.  For  there  is  an  essential 
difference  between  the  facts  in  the  present  and  those  which  appeared 
in  that  case.  There  it  was  shown  that  the  plaintiff,  the  owner  of  a 
parcel  of  flour,  delivered  it  at  Black  Rock,  on  board  of  one  of  their 
canal  boats,  to  the  Old  Clinton  Line  Company,  who  gave  for  it  bills 
of  lading  in  duplicate,  wherein  they  undertook  and  agreed  to  trans- 
port it  to  Albany,  and  there  deliver  it  to  Witt,  the  agent  of  the 
Western  Railroad.  The  plaintiff  sent  one  of  these  bills  of  lading 
to  Witt  and  the  other  to  the  consignee  at  Boston,  thus  reserving  to 
himself  the  right  and  assuming  the  responsibility  of  giving  to  Witt 
the  directions  under  which  he  was  to  act.  The  service  which  the 
Old  Clinton  Line  Company  was  to  render  was  exclusively  in  their 
capacity  as  common  carriers.  They  had  only  to  carry  the  flour  to 
Albany  and  there  deliver  it  to  Witt.     They  had  no  other  duty  ti 


848  CARRIERS    OF    GOODS. 

perform;  no  right  to  exercise  any  control  over  it  for  any  other  pui ' 
pose.  They  were  not,  therefore,  the  forwarding  agents  of  the 
plaintiff,  nor  invested  by  him  with  any  authority  to  give  directions 
as  to  further  transportation  of  the  flour,  or  to  make  any  other  dis- 
position of  it  than  its  delivery  to  Witt.  Yet  upon  its  arrival  in 
Albany,  in  consequence  of  the  inability  of  Witt  immediately  to 
receive  and  take  charge  of  it,  the  agents  of  the  Clinton  Line  Com- 
pany, without  right  and  in  violation  of  their  duty,  shipped  the  flour 
to  the  city  of  New  York,  and  from  there  to  Boston  in  the  schooner 
"Lady  Suffolk,"  whose  owners  claimed  a  right  to  detain  it  under 
lien  upon  it  for  the  freight.  But  the  court,  upon  the  general  prin- 
ciple that  if  a  carrier,  though  innocently,  receives  goods  from  a 
wrongdoer  without  the  consent  of  the  owner,  express  or  implied,  he 
cannot  detain  them  against  the  true  owners  until  the  freight  or 
carriage  is  paid,  determined  that  they  had  no  lien  upon  the  flour, 
and  that  their  claim  to  that  effect  could  not  be  sustained.  But  if 
they  had  been  the  forwarding  agents  of  the  owner  he  would  have 
been  responsible  for  their  acts,  and  his  consent  to  the  diversion  of 
the  property  from  its  intended  route  of  transportation  would  have 
resulted  by  implication  from  their  directions,  and  the  respective  car- 
riers would  then  have  become  entitled  to  hold  it  under  a  lien  to 
secure  payment  of  the  freight. 

When  the  flour  had  been  carried  over  their  road  to  Wilmington 
and  deposited  at  that  place  in  their  warehouse,  the  defendants  had, 
as  has  been  shown  above,  a  lien  upon  it  for  all  the  freight  which 
had  been  earned  in  its  transportation  from  Racine.  But  this  gave 
them  only  a  right  to  detain  it  until  they  were  paid;  not  to  sell  it  to 
obtain  the  remuneration  to  which  they  were  entitled.  In  the  case 
of  Lickbarrow  v.  Mason,  6  East,  21,  it  is  said  by  the  court  that  an 
owner  may  sell  or  dispose  of  his  property  as  he  pleases;  but  he  who 
has  a  lien  only  on  goods  has  no  right  to  do  so;  he  can  only  detain 
them  until  payment  of  the  sum  for  which  they  are  chargeable.  And 
the  rule  which  is  now  well  established,  that  a  party  having  a  lien 
only,  without  a  power  of  sale  superadded  by  special  agreement,  can- 
not lawfully  sell  the  chattel  for  his  reimbursement,  is  as  applicable 
to  carriers  as  it  is  to  all  other  persons  having  the  like  claim  upon 
property  in  their  possession.  Jones  v.  Pearle,  1  Stra.  56;  2  Kent 
Com.  (6th  eel.),  642;  Doane  v.  Russell,  3  Gray,  382.  It  is  in  dis- 
tinct recognition  of  this  principle  that  the  legislature  have  provided 
that  when  the  owner  or  consignee  of  fresh  meat,  and  of  certain  other 
enumerated  articles  liable  soon  to  perish  for  want  of  care,  shall  not 
pay  for  the  transportation  and  take  them  away,  common  carriers 
who  have  a  lien  thereon  for  the  freight  may  sell  the  same  without 
any  delay,  and  hold  the  proceeds,  subject  to  their  own  lawful 
charges,  for  the  use  of  the  owner.  And  such  also  is  the  provision 
in  relation  to  trunks,  parcels,  and  passengers'  effects  left  unclaimed 
at  any  passenger  station  of  a  railroad  company  for  a  period  of  six 


carrier's  compensation. 

months  after  arrival  and  deposit  therein.     Gen.  Sts.  c.  80,  §§  1 ,  2  5 
This  enumeration  of  particular  cases,  in  which  the  right  to  sell  and 
dispose  of  certain  goods  and  chattels  transported  is  conferred  upon 
common  carriers,  operates,  according  to  a  familiar  rule  of  law,  as  a 
denial  or  exclusion  of  their  right  in  all  other  instances. 

None  of  the  provisions  of  the  statute  referred  to  extends  to  the 
case  of  flour  transported  in  barrels  as  an  article  of  merchandise. 
And  therefore  the  defendants  had  no  authority  under  the  statute 
and  no  right  at  law  to  sell  the  flour  which  belonged  to  the  plaintiff, 
although  they  had  a  valid  and  subsisting  lien  upon  it,  and  were 
unable  to  find,  after  diligent  inquiry,  where  the  person  to  whom  it 
ought  to  be  delivered  resided  or  had  his  place  of  business,  and  there 
was  danger  of  its  becoming  worthless  by  longer  detention  of  it  in 
their  warehouse.  And  consequently  the  sale  which  they  made  was 
an  unlawful  conversion  of  it  to  their  own  use  which  renders  them 
liable  in  an  action  of  tort  to  the  owner,  for  its  value,  or  rather  for 
the  value  of  all  the  right  and  interest  which  he  at  that  time  had  in 
it,  which  is  the  merchantable  value  less  the  amount  of  the  lien  upon 
it.  The  plaintiff,  therefore,  may  maintain  this  action,  and  is 
entitled  to  recover  as  damages  the  balance  left  after  deducting  from 
the  sum  which  was  the  fair  merchantable  value  of  the  flour  at  the 
time  of  the  conversion  the  amount  for  which,  upon  the  principles 
before  stated,  they  had  a  lien  upon  it,  with  interest  from  the  time 
of  demand,  or  the  date  of  the  writ.  And  as  the  sale  was  unlawful, 
the  expenses  incurred  in  making  it  cannot  be  proved  for  the  purpose 
of  diminishing  the  damages  which  the  plaintiff  ought  to  recover. 

Judgment  is  therefore  to  be  rendered  for  him.  Unless  the  parties 
agree  upon  the  amount,  the  cause  must  be  sent  to  an  assessor,  or 
submitted  to  a  jury  if  either  party  requires  it,  to  assess  the 
damages. 


ROBERTS   v.   KOEHLER. 

30  Fed.  R.  (U.  S.  C.  C.)  94.     1S87. 

Deady,  J.  This  action  was  brought  against  the  defendant,  the 
receiver  of  the  Oregon  &  California  Railway,  to  recover  damages  for 
alleged  maltreatment  of  the  plaintiff  while  travelling  on  the  road 
between  Portland  and  Ashland,  Oregon.  The  cause  was  tried  with 
a  jury,  who  gave  a  verdict  for  the  defendant,  and  is  now  before  the 
court  on  a  motion. for  a  new  trial.  It  appeared  on  the  trial  that  the 
plaintiff  purchased  from  the  defendant  a  combination  ticket  from 
Portland  to  San  Francisco,  where  he  resided,  and  started  on  the 
south-bound  Oregon  &  California  train  on  July  13,  1885;  that  about 
200  miles  south  of  Portland  the  conductor  cut  off  from  said  com- 


850  CARRIERS    OF    GOODS. 

bination  ticket  and  took  up  the  coupon,  entitling  the  plaintiff  to 
transportation  on  the  railway  between  Portland  and  Ashland,  a 
distance  of  about  300  miles,  and  gave  hirn  his  private  check  for 
future  identification;  that  at  Grant's  Pass,  a  station  some  miles 
south  of  Roseburg,  the  plaintiff  was  left  behind,  and  a  large  leather 
valise  belonging  to  him  was  carried  on  the  train  to  Ashland.  The 
next  passenger  train  going  south  passed  Grant's  Pass  in  the  evening 
of  July  14th,  and  the  plaintiff  got  on  the  same,  when  the  conductor, 
in  obedience  to  the  rules  of  the  company,  demanded  his  fare  to 
Ashland,  $1.79,  which  the  plaintiff  refused  to  pay,  alleging  that  he 
had  paid  his  fare  once,  and  had  been  left  behind  by  the  misconduct 
of  the  conductor  on  the  train  of  the  day  previous;  to  which  the  con- 
ductor replied  that  he  would  give  him  a  receipt  for  the  payment, 
and,  if  his  statement  proved  correct,  the  money  would  be  refunded 
to  him.  The  plaintiff  still  refused  to  pay,  and  suggested  to  the  con- 
ductor that  he  might  put  him  off  the  car,  to  which  the  latter  replied 
that  he  would  hold  his  valise  for  the  fare.  When  the  train  arrived 
at  Ashland,  the  plaintiff  attempted  to  take  his  valise  out  of  the 
office  where  it  had  been  deposited  the  day  before,  which  the  con- 
ductor resisted,  and,  with  the  aid  of  a  brakeman,  finally  prevented. 

The  plaintiff  in  his  testimony  attributed  his  being  left  at  Grant's 
Pass  to  the  misconduct  of  the  conductor  in  starting  the  train  with- 
out warning,  and  without  waiting  the  usual  time.  But  on  the  whole 
evidence  it  was  so  manifest  that  his  testimony  was  grossly  and  wil- 
fully false  in  this  respect,  and  that  he  was  left  in  consequence  of 
his  own  wilfulness  in  leaving  the  train  just  as  it  was  about  to  start, 
and  after  he  was  warned  of  the  fact,  and  going  some  distance  from 
the  track  to  get  something  to  eat,  that  his  counsel  abandoned  the 
claim  for  damages  on  that  account  before  the  jury,  and  only  asked 
a  verdict  for  the  alleged  mistreatment  of  the  plaintiff  at  Ashland  in 
the  struggle  for  the  possession  of  the  valise. 

The  court  instructed  the  jury  that,  if  they  believed  the  plaintiff's 
statement  about  the  affray  at  Ashland  arising  out  of  his  attempt  to 
possess  himself  of  the  valise,  they  ought  to  find  a  verdict  for  him, 
but  if  they  did  not  believe  it,  and  were  satisfied  that  the  conductor 
used  only  such  force  as  was  necessary  and  proper  to  prevent  the 
plaintiff  from  taking  the  valise  out  of  the  possession  of  the  defend- 
ant without  first  paying  the  extra  fare,  they  ought  to  find  for  the 
defendant.  In  this  connection  the  court  also  instructed  the  jury 
that  under  the  circumstances  the  defendant  had  a  lien  on  the  plain- 
tiff's valise  for  his  fare  from  Grant's  Pass  to  Ashland  on  July  14th, 
and  therefore  the  conductor  had  a  right  to  retain  the  possession  of 
the  same  until  such  fare  was  paid.  To  this  latter. instruction  coun- 
sel for  the  plaintiff  then  excepted,  and  now  asks  for  a  new  trial  on 
account  thereof. 

A  carrier  of  passengers  is  responsible,  as  a  common  carrier,  for 
the  baggage  of  a  passenger,  when  carried  on  the  same  conveyance  as 


carrier's  compensation.  851 

the  owner  thereof.  The  transportation  of  the  baggage,  and  the  risk 
incurred  by  the  carrier,  is  a  part  of  the  service  for  which  the  fare  is 
charged.  Hollister  v.  Nowlen,  19  Wend.  236  [465];  Cole  v.  Good- 
win, id.  257;  Powell  v.  Myers,  26  Wend.  594  [696];  Merrill  v. 
Grinnell,  30  N.  Y.  609;  Burnell  v.  New  York  Cent.  Ry.  Co.  45 
N.  Y.  186;  Thomp.  Carr.  520,  §8;  Story,  Bailm.  §  499.  Corre- 
spondingly, a  carrier  of  passengers  has  a  lien  on  the  baggage  that 
a  passenger  carries  with  him  for  pleasure  or  convenience.  I  (vert 
Liens,  §  142;  Thomp.  Carr.  524,  §  11;  Ang.  Carr.  §  375;  2  Ror. 
Rys.  1003,  §  11.  But  this  lien  does  not  extend  to  the  clothing  oi 
other  personal  furnishings  or  conveniences  of  the  passenger  in  his 
immediate  use  or  actual  possession.  Eamsden  v.  Boston  &  A.  Ry. 
Co.,  104  Mass.  121. 

A  ticket  for  transportation  on  a  railway  between  certain  termini, 
which  is  silent  as  to  the  time  when  or  within  which  it  may  be  used, 
does  not  authorize  the  holder  to  stop  over  at  any  point  between  such 
termini,  and  resume  his  journey  thereon  on  the  next  or  any  follow- 
ing train.  The  contract  involved  in  the  sale  and  purchase  of  such  a 
ticket  is  an  entire  one,  and  not  divisible.  It  is  a  contract  to  carry 
the  passenger  through  to  the  point  of  his  destination  as  one  con- 
tinuous service,  and  not  by  piecemeal,  to  suit  his  convenience  or 
pleasure.  2  Ror.  Rys.  971,  §  10;  2  Wood,  Ry.  Law,  §  347;  Cleve- 
land, &c.  Ry.  Co.  v.  Bartram,  Jl  Ohio  St.  457;  Drew  v.  Central 
Pac.  Ry.  Co.,  51  Cal.  425. 

Admitting  these  legal  propositions,  counsel  for  the  plaintiff  insists 
that  the  defendant  had  no  lien  on  the  valise  in  question,  and  there- 
fore no  right  to  retain  it;  and  in  support  of  this  proposition  he 
ingeniously  argues  that  the  journey  from  here  to  Ashland  was 
divided  into  two  distinct  parts,  —  one  from  Portland  to  Grant's  Pass 
on  July  13th,  for  which  his  fare  was  paid  to  Ashland,  and  on  which 
the  valise  went  through  to  that  point,  and  one  from  said  pass  to 
Ashland,  on  which,  although  no  fare  was  paid,  yet  no  baggage  was 
carried. 

Before  considering  this  proposition,  it  is  well  to  remember  that 
the  undertaking  of  the  company  to  transport  this  valise,  as  baggage, 
was  only  incidental  to  the  principal  undertaking  to  carry  the  owner 
thereof;  and,  when  the  latter  was  performed  or  discharged,  the 
former  was  also.  Therefore,  if  the  journey  in  reference  to  which 
the  defendant  undertook  to  carry  the  same  ended,  by  the  act  of  the 
plaintiff,  at  Grant's  Pass,  the  carriage  of  the  valise  from  there  to 
Ashland  on  the  same  train  was  an  additional  service  performed  for 
him,  for  which  the  defendant  was  entitled  to  an  additional  compen- 
sation as  the  carrier  of  so  much  freight,  and  a  lien  thereon  for  the 
same;  for  a  traveller  is  not  entitled  to  have  his  personal  baggage 
carried  in  consideration  of  the  fare  paid  by  him,  unless  it  is  on  the 
same  train  which  carries  him.     Thomp.  Carr.  521,  §  8. 

But,  in  my  judgment,  the  transaction  must  be  regarded,  for  the 


852  CARRIERS    OF    GOODS. 

purpose  of  this  question,  as  one  journey,  in  the  course  of  which  the 
plaintiff  incurred  an  additional  charge  of  $  1.79  for  transportation. 
In  effect,  the  plaintiff  paid  his  fare  to  Ashland  on  the  train  of 
July  13th,  with  the  privilege  of  stopping  over  at  Grant's  Pass,  and 
finishing  the  journey  on  the  next  day's  train,  on  the  payment  of  the 
extra  charge  of  $1.79.  He  saw  proper  to  avail  himself  of  this 
privilege,  and  thereby  became  indebted  to  the  defendant  accord- 
ingly. And  whether  the  plaintiff  allowed  his  baggage  to  be  carried 
through  on  the  first  train,  or  kept  it  with  him,  the  defendant  had  a 
lien  on  it  for  all  the  unpaid  charges  for  transportation  which  the 
plaintiff  incurred  during  the  journey.  There  was  but  one  contract 
for  the  transportation  of  the  plaintiff,  including  his  baggage,  which 
was  modified  or  altered,  in  the  course  of  its  performance, by  his  own 
act  or  omission. 

Suppose  there  were  first  and  second-class  carriages  on  this  road, 
and  on  July  13th  the  plaintiff  paid  for  and  took  passage  in  one  of 
the  latter  for  Ashland,  but,  arriving  at  Grant's  Pass,  he  got  into 
one  of  the  former,  and  rode  to  Ashland,  refusing  to  pay  the  addi- 
tional fare  when  demanded,  can  there  be  any  doubt  that  the  defend- 
ant would  have  a  lien  on  his  baggage  for  the  same,  and  might,  if  he 
had  or  got  possession  of  it,  retain  it  until  such  fare  was  paid?  Cer- 
tainly not.  Substantially,  this  is  the  parallel  of  the  plaintiff's  case. 
The  defendant  was  clearly  in  the  right  in  detaining  the  valise  until 
the  fare  was  paid,  and  the  plaintiff  was  as  clearly  in  the  wrong  in 
attempting  to  take  it  without  doing  so.  Indeed,  his  conduct  through- 
out this  transaction  looks  very  much  like  he  was  playing  a  game  to 
involve  the  defendant  in  a  lawsuit  out  of  which  he  might  make  some 
money. 

The  motion  for  a  new  trial  is  disallowed. 


ROBINSON  v.   BAKER. 
5  Cush.  (Mass.)  137.     1849. 

This  was  an  action  of  replevin,  for  six  hundred  barrels  of  flour, 
tried  before  Dewey,  J.,  and  reported  by  him  for  the  consideration 
of  the  whole  court.     The  materia]  facts  are  as  follows: 1  — 

The  plaintiff,  in  October,  1847,  by  his  agent,  purchased,  at 
Buffalo,  600  barrels  of  flour,  which  the  agent  caused  to  be  put  on 
board  a  canal  boat,  to  be  transferred  to  Albany.  The  boat  was 
owned  by  a  company  known  by  the  name  of  the  Old  Clinton  Line, 
engaged  in  the  business  of  common  carriers  between  Buffalo  and 
Albany.     On  receiving  the  flour,  the  agent  of  the  company  executed 

1  The  statement  of  facts  is  abridged. 


CARRIER  S   COMPENSATION. 

and  delivered  to  plaintiff's  agent  duplicate  bills  of  lading,  by  which 
the  company  undertook  to  deliver  the  flour  to  the  agent  of  the  V, 
tern  Railroad  at  East  Albany.  On  the  arrival  of  the  flour  at  Albany, 
Nov.  5,  1847,  the  agents  of  the  Old  Clinton  Line  informed  the  agent 
of  the  Western  Railroad  of  the  fact,  asking  him  if  he  would  take  it 
off  the  boat  that  day.  On  his  refusal  to  do  so,  by  reason  of  the  fact 
that  other  boats  were  to  be  first  unloaded,  the  agents  of  the  Old 
Clinton  Line  shipped  the  flour  to  New  York  City  by  the  Albany  and 
Canal  Line,  common  carriers  engaged  in  the  transportation  of  mer- 
chandise between  that  city  and  Albany,  requesting  that  company  to 
ship  the  flour  from  New  York  to  Boston  for  the  plaintiff;  which  was 
done  by  the  agent  of  the  Albany  and  Canal  Line  at  New  York, 
placing  the  flour  on  board  a  schooner  of  which  defendant  was  mas- 
ter, consigned  to  the  agents  of  the  Albany  and  Canal  Line  at  Boston, 
with  directions  to  deliver  the  flour  to  plaintiff  on  his  paying,  or 
agreeing  to  pay,  the  freight  by  the  Old  Clinton  Line,  and  also  by 
the  Boston  and  Albany  Line,  and  the  freight  also  from  New  York 
to  Boston.  On  the  arrival  of  defendant's  vessel  at  Boston,  Nov.  23, 
1847,  plaintiff  demanded  the  flour  which  defendant  refused  to  deliver, 
on  the  ground  that  he  had  a  lien  thereon  for  freight. 

Fletcher,  J.  [After  stating  the  facts,  the  instructions  requested, 
and  the  instructions  given.]  As  the  ruling  of  the  judge,  that  the 
defendant,  as  a  carrier,  had  a  lien  for  his  freight,  was  placed  upon 
grounds  wholly  independent  of  any  rightful  authority  in  the  agents 
of  the  Old  Clinton  Line  and  the  Albany  and  Canal  Line,  to  divert 
the  goods  from  the  course  in  which  the  plaintiff  had  directed  them 
to  be  sent,  and  to  forward  them  by  the  defendant's  vessel,  and 
wholly  independent  of  the  plaintiff's  consent,  express  or  implied, 
the  simple  question  raised  in  the  case  is  whether,  if  a  common  car- 
rier honestly  and  fairly  on  his  part,  without  any  knowledge  or  sus- 
picion of  any  wrong,  receives  goods  from  a  wrongdoer,  without  the 
consent  of  the  owner,  express  or  implied,  he  may  detain  them  against 
the  true  owner,  until  his  freight  or  hire  for  carriage  is  paid;  or  to 
state  the  question  in  other  words,  whether,  if  goods  are  stolen  and 
delivered  to  a  common  carrier,  who  receives  them  honestly  and  fairly 
in  entire  ignorance  of  the  theft,  he  can  detain  them  against  the  true 
owner  until  the  carriage  is  paid. 

It  is  certainly  remarkable  that  there  is  so  little  to  be  found  in 
the  books  of  the  law,  upon  a  question  which  would  seem  likely  to 
be  constantly  occurring  in  the  ancient  and  extensive  business  of  the 
carrier.  In  the  case  of  York  v.  Grenaugh,  2  Ld.  Ray.  866,  the 
decision  was,  that  if  a  horse  is  put  at  the  stable  of  an  inn  by  a 
guest,  the  innkeeper  has  a  lien  on  the  animal  for  his  keep,  whether 
the  animal  is  the  property  of  the  guest  or  of  some  third  party  from 
whom  it  has  been  fraudulently  taken  or  stolen.  In  that  case,  Lord 
Chief  Justice  Holt  cited  the  case  of  an  Exeter  common  carrier, 
where  one  stole  goods  and  delivered  them  to  the  Exeter  carrier,  to 


§54  CARRIERS    OF    GOODS. 

be  carried  to  Exeter;  the  right  owner,  finding  the  goods  in  posses- 
sion of  the  carrier,  demanded  them  of  him;  upon  which  the  carrier 
refused  to  deliver  them  unless  he  was  first  paid,  for  the  carriage. 
The  owner  brought  trover,  and  it  was  held  that  the  carrier  might 
justify  detaining  the  goods  against  the  right  owner  for  the  carriage; 
for  when  they  were  brought  to  him,  he  was  obliged  to  receive  them 
and  carry  them,  and  therefore,  since  the  law  compelled  him  to  carry 
them,  it  will  give  him  a  remedy  for  the  premium  due  for  the  car- 
riage. Powell,  J.,  denied  the  authority  of  the  case  of  the  Exeter 
carrier,  but  concurred  in  the  decision  as  to  the  innkeeper.  There  is 
no  other  report  of  the  case  of  the  Exeter  carrier  to  be  found.  Upon 
the  authority  of  this  statement  of  the  case  of  the  Exeter  carrier,  the 
law  is  laid  down  in  some  of  the  elementary  treatises  to  be,  that  a 
carrier,  who  receives  goods  from  a  wrongdoer  or  thief,  may  detain 
them  against  the  true  owner  until  the  carriage  is  paid. 

In  the  case  of  King  v.  Richards,  6  Whart.  418,  the  court,  in  giv- 
ing an  opinion  upon  another  and  entirely  different  and  distinct 
point,  incidentally  recognized  the  doctrine  of  the  case  of  the  Exeter 
carrier.  But  until  within  six  or  seven  years  there  was  no  direct 
adjudication  upon  this  question  except  that  referred  to  in  York  v. 
Grenaugh  of  the  Exeter  carrier.  In  1843  there  was  a  direct  adjudi- 
cation upon  the  question  now  under  consideration  in  the  Supreme 
Court  of  Michigan,  in  the  case  of  Fitch  v.  Newberry,  1  Doug.  1. 
The  circumstances  of  that  case  were  very  similar  to  those  in  the 
present  case.  There  the  goods  were  diverted  from  the  course 
authorized  by  the  owner,  and  came  to  the  hands  of  the  carrier  with- 
out the  consent  of  the  owner,  express  or  implied;  the  carrier,  how- 
ever, was  wholly  ignorant  of  that,  and  supposed  they  were  rightfully 
delivered  to  him;  and  he  claimed  the  right  to  detain  them  until  paid 
for  the  carriage.  The  owner  refused  to  pay  the  freight,  and  brought 
an  action  of  replevin  for  the  goods.  The  decision  was  against  the 
carrier.  The  general  principle  settled  was,  that  if  a  common  car- 
rier obtain  possession  of  goods  wrongfully  or  without  the  consent  of 
the  owner,  express  or  implied,  and  on  demand  refuse  to  deliver  them 
to  the  owner,  such  owner  may  bring  replevin  for  the  goods  or  trover 
for  their  value.  The  case  appears  to  have  been  very  fully  con- 
sidered, and  the  decision  is  supported  by  strong  reasoning  and  a 
very  elaborate  examination  of  authorities.  A  very  obvious  distinc- 
tion was  supposed  to  exist  between  the  cases  of  carriers  and  inn- 
keepers, though  the  distinction  did  not  affect  the  determination  of 
the  case. 

This  decision  is  supported  by  the  case  of  Buskirk  v.  Purin,  2  Hall, 
561.  There  property  was  sold  on  a  condition,  which  the  buyer  failed 
to  comply  with,  and  shipped  the  goods  on  board  the  defendant's 
vessel.  On  the  defendant's  refusal  to  deliver  the  goods  to  the  owner 
he  brought  trover  and  was  allowed  to  recover  the  value,  although 
the  defendants  insisted  on  the  right  of  lien  for  the  freight. 


CARRIER'S    COMPENSATION.  s.",- 

Thus  the  case  stands  upon  direct  ami  express  authorities.  How 
does  it  stand  upon  general  principles?  In  the  case  of  Saltus  v. 
Everett,  20  Wend.  267,  275,  it  is  said:  "The  universal  and  funda- 
mental principle  of  our  law  of  personal  property  is,  that  no  man  can 
be  divested  of  his  property  without  his  consent,  and  consequently, 
that,  even  the  honest  purchaser  under  a  defective  title  cannot  hold 
against  the  true  proprietor."  There  is  no  case  to  be  found,  or  any 
reason  or  analogy  anywhere  suggested,  in  the  books,  which  would 
go  to  show  that  the  real  owner  was  concluded  by  a  bill  of  lading  not 
given  by  himself,  but  by  some  third  person,  erroneously  or  fraudu- 
lently. If  the  owner  loses  his  property,  or  is  robbed  of  it,  or  it  is 
sold  or  pledged  without  his  consent,  by  one  who  has  only  a  tem- 
porary right  to  its  use  by  hiring  or  otherwise,  or  a  qualified  posses- 
sion of  it  for  a  specific  purpose,  as  for  transportation,  or  for  work 
to  be  done  upon  it,  the  owner  can  follow  and  reclaim  it  in  the 
possession  of  any  person,  however  innocent. 

Upon  this  settled  and  universal  principle,  that  no  man's  property 
can  be  taken  from  him  without  his  consent,  express  or  implied,  the 
books  are  full  of  cases,  many  of  them  hard  and  distressing  cases, 
where  honest  and  innocent  persons  have  purchased  goods  of  others, 
apparently  the  owners,  and  often  with  strong  evidence  of  ownership, 
but  who  yet  were  not  the  owners,  and  the  purchasers  have  been 
obliged  to  surrender  the  goods  to  the  true  owners,  though  wholly 
without  remedy  for  the  money  paid.  There  are  other  hard  and 
distressing  cases  of  advances  made  honestly  and  fairly  by  auc- 
tioneers and  commission  merchants,  upon  a  pledge  of  goods  by  per- 
sons apparently  having  the  right  to  pledge,  but  who,  in  fact,  had 
not  any  such  right,  and  the  pledges  have  been  subjected  to  the  loss 
of  them  by  the  claim  of  the  rightful  owner.  These  are  hazards  to 
which  persons  in  business  are  continually  exposed  by  the  operation 
of  this  universal  principle,  that  a  man's  property  cannot  be  taken 
from  him  without  his  consent.  Why  should  the  carrier  be  exempt 
from  the  operation  of  this  universal  principle?  Why  should  not  the 
principle  of  caveat  emptor  apply  to  him?  The  reason,  and  the  only 
reason,  given  is,  that  he  is  obliged  to  receive  goods  to  carry,  and 
should  therefore  have  a  right  to  detain  the  goods  for  his  pay.  But 
he  is  not  bound  to  receive  goods  from  a  wrongdoer.  He  is  bound 
only  to  receive  goods  from  one  who  may  rightfully  deliver  them  to 
him,  and  he  can  look  to  the  title,  as  well  as  persons  in  other  pur- 
suits and  situations  in  life.  Nor  is  a  carrier  bound  to  receive 
goods,  unless  the  freight  or  pay  for  the  carriage  is  first  paid  to 
him;  and  he  may,  in  all  cases,  secure  the  payment  of  the  carriage 
in  advance.  In  the  case  of  King  v.  Richards,  6  Wharf.  418,  it 
was  decided  that  a  carrier  may  defend  himself  from  a  claim  for 
goods  by  the  person  who  delivered  them  to  him,  on  the  ground  that 
the  bailor  was  not  the  true  owner,  and  therefore  not  entitled  to  the 
goods. 


856  CARRIERS    OF    GOODS. 

The  common  carrier  is  responsible  for  the  wrong  delivery  of 
goods,  though  innocently  done,  upon  a  forged  order.  Why  should 
not  his  obligation  to  receive  goods  exempt  him  from  the  necessity 
of  determining  the  right  of  the  person  to  whom  he  delivers  the  goods, 
as  well  as  from  the  necessity  of  determining  the  right  of  the  person 
from  whom  he  receives  goods?  Upon  the  whole,  the  court  are  satis- 
fied that  upon  the  adjudged  cases,  as  well  as  on  general  principles, 
the  ruling  in  this  case  cannot  be  sustained,  and  that  if  a  carrier 
receives  goods,  though  innocently,  from  a  wrongdoer,  without  the 
consent  of  the  owner,  express  or  implied,  he  cannot  detain  them 
against  the  true  owner,  until  the  freight  or  carriage  is  paid. 


BASSETT   v.    SPOFFOKD. 

45  N.  Y.  387.     1871. 

Appeal    from    the    General   Term    of    the   New   York   Common 

Pleas. 

The  action  was  replevin  for  four  cases  of  shoes,  which  came  to 
the  possession  of  the  defendant's  testator  from  one  Careras,  to  be 
carried  and  conveyed  on  steamer  from  New  York  to  Havana,  con- 
signed  to   one  Oliver.     At   the  time  the   plaintiff,   by  his   agent, 
notified  the  testator  and  the  master  and  officers  of  the  steamer  of 
his  claim,  and  demanded  a  delivery  of  the  property,  the  cases  were 
stowed  in  the  hold  of  the  vessel  and  difficult  of  access,  and  incapable 
of  delivery,  except  with  considerable  labor  and  at  some  expense. 
The  delivery  would  have  delayed  the  departure  of  the  vessel,  which 
was  about  to  commence  her  voyage.     There  was  evidence  tending  to 
show  that  bills  of  lading  for  the  property  had  been  issued  in  the 
usual  form,  before  any  notice  of  the  plaintiff's  claim.     The  plaintiff 
claimed  as  owner.     He  was  a  resident  of  Boston,  and  contracted  to 
sell  four  cases  of  shoes  to  Careras,  to  be  delivered  in  New  York,  and 
paid  for  on  delivery.     The  shoes  were  forwarded  to  New  York  by 
railroad  and  steamboat,  the  plaintiff  taking  a  receipt  for  their  car- 
riage and  giving  the  same  to  a  clerk,  whom  he  sent  with  the  goods 
to  New  York,  with  directions  to  deliver  the  goods  to  the  purchaser 
on  receiving  the  pay  therefor.     On  his  arrival   in  New  York  the 
clerk  called  on  Careras,  and   informed  him  of  the  arrival  of  the 
goods,  and  that  he  was  ready  to  deliver  them  on  receipt  of  the  pur- 
chase price.     He  was  informed  by  Careras  that  he  would  be  pre- 
pared to  pay  at  a  later  hour  of  the  day ;  but  as  the  clerk  was  leaving, 
Careras  remarked  that  he  would  like  to  examine  the  goods,  and  the 
bill  of  lading  or  receipt  was  given  him  "  for  the  purpose  of  examin- 


carrier's  compensation.  S57 

ing  the  goods."  The  clerk  called  at  one  o'clock,  the  time  appointed, 
for  the  payment  of  the  money,  and  was  promised  it  at  three  o'clock 
of  the  same  day.  On  calling  at  the  last-named  hour,  the  payment 
was  again  deferred,  and  he  then  went  to  look  after  the  goods  and 
found  they  had  been  removed.  They  were  traced  to  the  testator's 
ship,  to  which  they  had  been  taken  by  Careras,  and  put  on  board  for 
transportation  to  Havana,  consigned  to  one  Oliver.  The  plaintiff 
demanded  his  goods,  and  upon  their  non-delivery  this  action  was 
brought. 

At  the  close  of  the  trial  the  plaintiff  asked  the  court  to  direct  a 
verdict  for  the  plaintiff,  on  the  grounds :  1st.  That  the  goods  were 
feloniously  obtained  by  Careras,  and  2d.  That  there  was  no  evi- 
dence for  a  delivery  of  the  bill  of  lading,  and  a  verdict  was  ordered 
as  requested,  to  which  the  defendant  excepted.  The  judgment 
entered  upon  the  verdict  was  affirmed  by  the  General  Term  of  the 
Common  Pleas  of  New  York  City,  and  from  the  latter  judgment  the 
defendant  has  appealed  to  this  court. 

Allen,  J.  By  the  larcenous  taking  of  chattels  the  owner  is  not 
divested  of  his  property,  and  a  transfer  to  a  purchaser  does  not 
impair  the  right  of  the  true  owner.  A  purchase  of  stolen  goods 
either  directly  from  the  thief  or  from  any  other  person,  although  in 
the  ordinary  course  of  trade  and  in  good  faith,  will  not  give  a  title 
as  against  the  owner.  In  the  case  of  a  felonious  taking  of  goods, 
the  owner  may  follow  and  reclaim  them  wherever  he  may  find  them. 
A  carrier  or  other  bailee  can  stand  in  no  better  situation  than  a 
purchaser  who  has  received  them  in  good  faith,  on  a  purchase,  for 
their  full  value. 

A  larceny  has  been  defined  as  "the  felonious  taking  the  property 
of  another,  without  his  consent  and  against  his  will,  with  intent  to 
convert  it  to  the  use  of  the  taker  "  (Hammond's  Case,  2  Leach,  1089), 
or  "  the  wrongful  or  fraudulent  taking  or  carrying  away  by  any  per- 
son of  the  personal  goods  of  another,  with  a  felonious  intent  to  con- 
vert them  to  his  (the  taker's)  own  use  and  make  them  his  own  prop- 
erty without  the  consent  of  the  owner.  2  East,  P.  C.  553;  2  Kuss. 
on  Crimes,  1;  Mowrey  v.  Walsh,  8  Cow.  238. 

The  fraudulent  and  wrongful  taking  being  proved  with  the  felo- 
nious intent,  the  animo  furandi,  the  only  question  remaining  in  any 
case  is  whether  the  taking  was  with  the  consent  of  the  owner;  for  if 
so,  although  the  consent  was  obtained  by  gross  fraud,  there  is  no 
larceny.  But  the  consent  must  be  to  part  with  the  property,  and 
not  the  naked  possession  for  a  special  purpose.  If  the  owner  does 
not  intend  or  consent  to  part  with  his  property,  then  the.  taking  and 
conversion  of  it  with  a  felonious  intent  by  one  having  possession  of 
it,  as  the  property  of  the  owner  and  for  a  special  purpose,  is  larceny. 
If  it  appear  that  although  there  is  a  delivery  by  the  owner  in  fact, 
yet  there  is  no  change  of  property  nor  of.  legal  possession,  but  the 
legal  possession  still  remains  exclusively  in  the  owner,  larceny  may 


858  CARRIERS    OF   GOODS. 

be  committed  as  if  no  such  delivery  had  been  made.     Mowrey  v. 
Walsh,  supra,  and  cases  cited;  and  2  Russ.  on  Crimes,  22;  Lewis 
y.  Commonwealth,  15  S.  &  R.  93;  Commonwealth  v.  James,  1  Pick. 
375;  Cary  v.  Hotaling,  1  Hill,  311.     The  general  owner  of  personal 
property  holds  the  constructive  possession  and  may  maintain  tres- 
pass,  though  the  actual  possession  be   in   another;    and   one  who 
obtains  the  bailment  of  goods,  or  the  possession  for  a  special  pur- 
pose, fraudulently  intending  to  deprive  the  owner  of  his  property, 
may  be  convicted  of  larceny.     But  if  the  owner  intends  to  part  with 
the  property  and  delivers  the  possession,  there  can  be  no  larceny, 
although  fraudulent  means  have  been  used  to  induce  him  to  part 
with  the  goods.     The  delivery  of  the   receipt  to  Careras  was   to 
enable  him  to  examine  the  goods  before  paying  for  them,  and  for  no 
other  purpose ;  and  with  the  consent  of  the  plaintiff  he  had  access 
to  and  possession  of  the  goods  for  this  special  purpose.      The  sale 
of  the  goods  was  for  cash,  to  be  paid  on  delivery;  the  condition  was 
never  waived,  and  there  was  no  absolute  delivery  of  the  goods  or  of 
the  receipt  for  them  with  intent  to  part  with  the  property,  except 
upon   the   payment   of   the   purchase  price.     Had   the   ship-owner 
received  from  Careras  the  original  receipt  or  bill  of  lading  for  the 
goods,  and  dealt  with  him  on  the  faith  of  it,  as  evidence  of  owner- 
ship, a   different   question   might   have   arisen.     But   Careras   had 
availed  himself  of  that  document  to  possess  himself  of  the  property, 
which  he  took  and  removed  from  its  place  of  deposit  to  the  ship 
of  the  defendant's  testator.     Careras  had  the  naked  possession  of 
stolen  property,  and  the  ship-owner  was  not  misled  or  induced  to 
receive    it  by  the  production  of  any  other  evidence  of  ownership. 
Neither  did  any  question  arise  upon  the  trial  as  to  the  effect,  upon 
the  right  of  the  plaintiff  to  demand  an  immediate  delivery,  of  the 
fact  that  the  goods  were  stored  in  the  hold  of  the  vessel  under  other 
goods,  and  that  a  breaking  up  of  the  cargo  would  cause  delay  and 
expense,  and  that  the  officers  of  the  vessel  offered  to  deliver  the 
goods  to  the   owner  on  the  return  of  the  ship  from  Havana. 

There  was  no  conflict  of  evidence,  nor  any  question  to  submit,  as 
to  the  felonious  taking  of  the  goods,  to  the  jury. 

The  plaintiff  being  clearly  entitled  to  a  verdict  upon  the  ground 
that  the  goods  had  been  feloniously  stolen  and  taken  from  him,  the 
other  questions  made  were  wholly  immaterial.  The  actual  delivery 
of  a  bill  of  lading  to  the  shipper  by  the  testator  would  have  given 
him  no  better  right  to  retain  the  goods  for  his  indemnity  than  a 
purchaser  in  good  faith  and  for  value  would  have  done.  Neither 
could  acquire  any  right  to  withhold  stolen  property  from  the  plaintiff, 
the  rightful  owner. 

The  goods  having  been  stolen  there  was  no  question  of  negligence 
or  estoppel  in  the  case.  A  party  whose  horse  is  stolen  may  pursue 
and  reclaim  his  property,, although  he  has  negligently  left  his  stable 
unlocked. 


carrier's  compensation.  859 

The  question  of  estoppel  would  have  arisen  if  the  ship-owner  had 
had  knowledge  of,  and  acted  on,  the  faith  of  the  original  ship] 
receipt  delivered  to  Careras. 

The  delivery  of  the  goods  for  the  purpose  named,  although  it 
enabled  Careras  to  perpetrate  a  fraud  upon  the  defendant's  testator, 
did  not  divest  the  plaintiff  of  his  title  or  estop  him  from  reclaiming 
them  wherever  found. 

The  judgment  must  be  affirmed. 


860  CARRIERS   OF   PASSENGERS,, 


VIII.     CARRIERS   OF   PASSENGERS. 

1.   WHO   DEEMED. 

BOYCE   v.    ANDERSON. 
2  Pet.  (U.  S.)  150.     1829. 

Writ  of  error  to  the  Circuit  Court  of  Kentucky. 

The  case  was  submitted  to  the  court,  on  the  part  of  the  counsel 
for  the  plaintiff  in  error,  Mr.  Rowan,  upon  the  following  brief. 

This  was  an  action  in  the  Court  below  against  defendants  in  error, 
owners  of  the  steamboat  "Washington,"  to  recover  from  them  the 
value  of  four  slaves,  the  property  of  the  plaintiff,  who,  he  alleged, 
were  delivered  to  the  commandants  of  said  boat,  to  be  carried  there- 
on, and  who,  he  alleged,  were  drowned  by  the  carelessness,  negli- 
gence, neglect  or  mismanagement  of  the  captain  and  commandants 
of  the  said  steamboat. 

[The  evidence  as  set  out  in  the  report  is  omitted.  The  facts  are 
sufficiently  stated  in  the  opinion.] 

Upon  this  evidence  the  plaintiff  moved  the  court  to  instruct  the 

jury, 

1.  That  if  they  find,  from  the  evidence,  that  the  defendants  were 
owners  of  the  steamboat,  and  by  themselves,  their  officer,  or  ser- 
vants of  the  boat,  did  actually  receive  into  their  yawl  the  negroes 
of  the  plaintiff,  to  be  carried  from  shore  on  board  the  steamboat, 
they  are  responsible  for  neglect  and  imprudent  management,  not- 
withstanding no  reward,  or  hire,  or  freight,  or  wages,  were  to  have 
been  paid  by  Boyce  to  defendants. 

2.  That  if  they  find  from  the  evidence  that  the  steamboat "  Wash- 
ington "  was  owned  by  defendants,  and  used  by  them,  on  the  river, 
as  a  common  carrier  for  wages  and  freight,  and  that  the  slaves  of 
plaintiff  were  actually  received  by  the  agents  and  servants  of  the 
defendants,  on  board  of  the  yawl,  of  and  belonging  to  the  defendants 
as  a  tender  of  the  steamboat,  to  be  carried  from  the  land,  and  put 
on  board  the  steamboat,  to  be  therein  carried  and  transported,  that 
the  defendants  were  bound  to  the  most  skilful  and  careful  manage- 
ment; and  if  the  slaves  were  drowned  in  consequence  of  any  omis- 
sion of  such  skilful  and  careful  management  by  the  agents  and 
servants  in  the  conduct  and  navigation  of  the  boat  and  tender,  the 
defendants  are  answerable  to  the  plaintiffs  for  the  value  of  the 
slaves. 


WHO   DEEMED.  Mi! 

3.  That  if  the  jury  believe  the  evidence  in  this  case,  the  defend- 
ants would  have  had  a  legal  right  to  demand  a  reasonable  compensa- 
tion for  their  undertaking  to-transport  said  slaves  on  board  their 
boat;  and  their  afterwards  waiving,  or  declining  that  right,  from 
motives  of  humanity,  or  any  other  motive,  does  not  change  or 
diminish  their  legal  responsibility  as  common  carriers  for  hire  or 
reward. 

The  defendants  moved  the  court  "to  instruct  the  jury  that  if  they 
find  from  the  evidence  that  the  slaves  in  controversy  were  taken  on 
board  of  the  yawl  at  the  instance  and  in  pursuance  of  the  request 
of  the  captain  of  the  'Teche,'  from  motives  of  humanity  and  cour- 
tesy alone,  that  the  defendants  are  not  liable,  unless  they  shall  be' 
of  opinion  that  the  slaves  were  lost  through  the  gross  neglect  of  the 
captain  of  the  steamboat,  or  the  other  servants  or  agents  of  the 
defendants." 

The  court  gave  the  first  instruction  moved  by  the  plaintiff,  with 
this  qualification,  "that  gross  negligence  or  unskilful  conduct  was 
required  to  charge  the  defendants."  The  second  and  third  instruc- 
tion moved  by  the  plaintiff,  the  court  refused  to  give,  and  instructed 
the  jury  "  that  the  doctrine  of  common  carriers  did  not  apply  to  the 
case  of  carrying  intelligent  beings,  such  as  negroes;  but  that  the 
defendants  were  chargeable  for  negligence  or  unskilful  conduct." 
The  court  gave  the  instructions  asked  for  by  the  defendants. 

It  is  believed  and  alleged  that  the  court  erred  in  refusing  to  give 
the  instructions  required  by  plaintiff  and  in  giving  those  required 
by  defendants,  and  especially  in  instructing  the  jury  that  the  doc- 
trine of  common  carriers  did  not  apply  to  the  case. 

Mr.  Chief  Justice  Marshall.  This  was  an  action  brought  in 
the  Court  of  the  United  States,  for  the  seventh  Circuit  and  District 
of  Kentucky,  against  the  defendants,  owners,  &c. 

There  being  no  special  contract  between  the  parties  in  this  case, 
the  principal  question  arises  on  the  opinion  expressed  by  the  court, 
"  that  the  doctrine  of  common  carriers  does  not  apply  to  the  case  of 
carrying  intelligent  beings,  such  as  negroes." 

That  doctrine  is,  that  the  carrier  is  responsible  for  every  loss 
which  is  not  produced  by  inevitable  accident.  It  has  been  pressed 
beyond  the  general  principles  which  govern  the  law  of  bailment, 
by  considerations  of  policy.  Can  a  sound  distinction  be  taken 
beween  a  human  being  in  whose  person  another  has  an  interest  and 
inanimate  property?  A  slave  has  volition,  and  has  feelings  whieh 
cannot  be  entirely  disregarded.  These  properties  cannot  be  over- 
looked in  conveying  him  from  place  to  place.  He  cannot  be  stowed 
away  as  a  common  package.  Not  only  does  humanity  forbid  this 
proceeding,  but  it  might  endanger  his  life  or  health.  Consequently 
this  rigorous  mode  of  proceeding  cannot  safely  be  adopted,  unless 
stipulated  for  by  special  contract.  Being  left  at  liberty,  he  may 
escape.     The  carrier  has  not,  and  cannot  have,  the  same  absolute 


862  CARKIERS    OF    PASSENGERS. 

control  over  him  that  he  has  over  inanimate  matter.  In  the  nature 
of  things,  and  in  his  character,  he  resembles  a  passenger,  not  a 
package  of  goods.  It  would  seem  reasonable,  therefore,  that  the 
responsibility  of  the  carrier  should  be  measured  by  the  law  which 
is  applicable  to  passeugers  rather  than  by  that  which  is  applicable 
to  the  carriage  of  common  goods. 

There  are  no  slaves  in  England,  but  there  are  persons  in  whose 
service  another  has  a  temporary  interest.  We  believe  that  the 
responsibility  of  a  carrier,  for  injury  which  such  person  may  sus- 
tain, has  never  been  placed  on  the  same  principle  with  his  respon- 
sibility for  a  bale  of  goods.  He  is  undoubtedly  answerable  for  any 
injury  sustained  in  consequence  of  his  negligence  or  want  of  skill; 
but  we  have  never  understood  that  he  is  responsible  farther. 

The  law  applicable  to  common  carriers  is  one  of  great  rigor. 
Though  to  the  extent  to  which  it  has  been  carried,  and  in  the  cases 
to  which  it  has  been  applied,  we  admit  its  necessity  and  its  policy, 
we  do  not  think  it  ought  to  be  carried  farther,  or  applied  to  new 
cases.  We  think  it  has  not  been  applied  to  living  men,  and  that  it 
ought  not  to  be  applied  to  them. 

The  directions  given  by  the  Court  to  the  jury  informed  them  that 
the  defendants  were  responsible  for  negligence  or  unskilful  conduct, 
but  not  otherwise. 

Sir  William  Jones,  in  his  Treatise  on  Bailments,  p.  14,  says, 
"When  the  contract  is  reciprocally  beneficial  to  both  parties,  the 
obligation  hangs  in  an  even  balance;  and  there  can  be  no  reason  to 
recede  from  the  standard:  nothing  more,  therefore,  ought  in  that 
case  to  be  required  than  ordinary  diligence,  and  the  bailee  should 
be  responsible  for  no  more  than  ordinary  neglect."  In  another 
place  (p.  141)  the  same  author  says,  "A  carrier  for  hire  ought,  by 
the  rule,  to  be  responsible  only  for  ordinary  neglect;  and  in  the 
time  of  Henry  VIII.  it  appears  to  have  been  generally  holden  that 
a  common  carrier  was  chargeable  in  case  of  a  loss  by  robbery  only 
when  he  had  travelled  by  ways  dangerous  for  robbing,  or  driven  by 
night,  or  at  any  inconvenient  hour." 

This  rule,  as  relates  to  the  conveyance  of  goods,  was  changed  as 
commerce  advanced,  from  motives  of  policy.  But  if  the  court  is 
right  in  supposing  that  the  strict  rule  introduced  for  general  com- 
mercial objects  does  not  apply  to  the  conveyance  of  slaves,  the 
ancient  rule  "that  the  carrier  is  liable  only  for  ordinary  neglect" 
still  applies  to  them. 

If  the  slaves  were  taken  on  board  the  yawl  to  be  conveyed  in  the 
steamboat,  solely  in  consequence  of  their  distress  and  from  motives 
of  humanity  alone,  no  reward,  hire,  or  freight  being  to  be  paid  for 
their  passage,  as  the  first  prayer  of  the  plaintiff  and  the  prayer  of 
the  defendant  suppose,  the  carrier  would  certainly  be  responsible 
only  in  a  case  of  gross  neglect;  and  the  qualification  annexed  to  this 
construction  was  correct. 


WHO   DEEMED. 

We  think  that  in  the  case  stated  for  the  instruction  of  the  Circuit 
Court  the  defendants  were  responsible  for  the  injury  sustained,  only 
in  the  event  of  its  being  caused  by  the  negligence  or  the  unskilful- 
ness  of  the  defendants  or  their  agents,  and  that  there  is  no  error  in 
the  opinion  given. 


SHOEMAKER   v.   KINGSBURY. 
12  Wall.  (U.  S.)  369.     1870. 

Error  to  the  Circuit  Court  for  the  District  of  Kansas. 

Suit  for  damages  for  personal  injuries  happening  on  a  rail  car; 
the  case  being  thus :  — 

In  1867  Shoemaker  and  another  were  contractors  for  building  the 
Eastern  Division  of  the  Union  Pacific  Railway  in  Kansas;  and  in 
October  of  that  year  they  ran  a  construction  train  over  a  portion 
of  the  road,  carrying  material  for  it.  To  this  train  was  attached 
what  was  called  a  "caboose  car,"  —  a  car  for  the  accommodation  of 
the  men  connected  with  the  train,  who  had  their  "  sleeping  bunks  " 
in  this  car,  and  who  stored  their  tools  there,  as  also  the  lamps  used 
on  the  cars.  The  road  was  not  yet  delivered  over  to  the  Pacific 
Railway  Company,  and  the  contractors  did  not  wish  to  carry  pas- 
sengers. Persons,  however,  were  sometimes  carried  on  the  caboose 
car,  and  sometimes  fare  had  been  charged  for  their  passage,  but  not 
always. 

In  this  state  of  things,  one  Kingsbury,  a  sheriff  in  Kansas,  and  a 
deputy  marshal,  wanted  to  make  an  arrest  on  the  line  of  the  road, 
and  he  applied  for  passage  as  far  as  to  a  place  called  Wilson's 
Creek,  asking  the  conductor  to  stop  the  train  there,  in  order  that 
he  might  make  the  arrest.  He  was  accordingly  taken  on  the  train, 
and  the  train  stopped  until  he  had  made  the  arrest. 

A  part  of  the  fare  charged  was  paid  by  Kingsbury  on  the  cars, 
and  the  balance  afterwards.  The  train  ran  from  Ellsworth  to 
Walker's  Creek  in  Kansas.  In  going  towards  Walker's  Creek  the 
train  was  made  up  and  ran  in  the  usual  way  of  making  up  and  run- 
ning railway  trains,  the  engine  being  in  front,  with  the  caboose  and 
flat  cars  attached  in  regular  order.  But  on  the  return  from  Walker's 
Creek,  as  there  was,  as  yet,  no  turntable  on  the  road,  the  usual 
order  for  making  up  such  trains  was  reversed,  and  both  engine  and 
tender  were  backed  over  the  road,  a  distance  of  more  than  fifty 
miles:  the  tender  being  ahead,  the  engine  next,  the  caboose  and 
other  cars  attached,  and  following  in  regular  order.  When  about 
three  miles  from  Ellsworth,  on  this  return  trip,  both  the  engine  and 
tender  were  thrown  from  the  track  and  upset.  At  the  time  this  acci- 
dent occurred,  Kingsbury  was  riding  in  the  caboose  car  with  the 


854  CARRIERS    OF   PASSENGERS, 

conductor  of  the  train,  and  either  jumped  out  or  was  thrown  out, 
which  of  the  two  did  not  exactly  appear.  Whichever  of  the  two 
things  was  true,  he  was  hurt,  and  for  the  injuries  which  he  received 
he  brought  the  action  below. 

The  accident  was  occasioned  by  the  engine  running  against  a 
young  ox,  which  leaped  on  to  the  track  about  twenty  feet  in  front 
of  the  advancing  train,  from  grass  or  weeds  five  or  six  feet  high, 
growing  on  the  sides  of  the  road.  The  train  was  running  at  its 
usual  rate  of  speed.  The  accident  occurred  just  after  dark;  but  it 
was  a  moonlight  night,  and  the  engineer  testified  that  he  could  have 
seen  an  animal  two  hundred  yards  distant  on  the  track;  that  the 
animal  was  only  about  twenty  feet  from  the  engine  when  first  seen. 
He  continued  his  testimony  thus :  — 

"As  soon  as  1  saw  the  animal  I  shut  off  the  steam,  and  seized  the 
lever  to  reverse  the  engine,  and  had  it  about  half  over  when  the 
engine  went  off  the  track.  Something  struck  me  on  the  head  and  I 
did  not  know  anything  more.  I  was  injured.  I  did  what  I  thought 
was  best  to  be  done  to  stop  the  train.  The  whistle  lever  was  in  the 
top  of  the  cab.  I  did  not  whistle  for  brakes.  I  had  no  time  to  do 
so  after  I  saw  the  animal  and  before  the  engine  went  off  the  track. 
The  train  could  have  been  stopped  in  about  one  hundred  and  fifty 
yards.  When  danger  appears  the  first  thing  to  be  done  is  to  reverse 
the  engine  and  then  sound  the  whistle  for  brakes.  Both  could  not 
be  done  at  the  same  time.  In  order  to  reverse  and  blow  the  whistle 
two  motions  are  necessary,  —  first,  to  cut  off  the  steam,  and  then 
take  hold  of  the  lever  to  throttle  valve  and  move  it  over.  It  takes 
both  hands  to  reverse.  The  whistle  is  sounded  by  a  lever  in  the 
top  of  the  cab.  Brakemen  would  know,  by  shutting  off  steam  and 
reversing,  that  something  was  the  matter.  It  would  take  about  ten 
seconds  to  do  all  this.  I  did  it  as  quick  as  I  could.  I  could  have 
done  nothing  more  than  I  did  do." 

There  was  no  fence  on  the  sides  of  the  road.  The  plaintiff  had 
been  several  times  before  over  the  road  and  knew  its  condition,  and 
the  manner  in  which  the  trains  were  made  up  and  run. 

The  court,  among  other  instructions,  gave  the  following  as  a  fifth 
to  the  jury,  to  which  the  defendants  excepted :  — 

"  When  it  was  proved  that  the  car  was  thrown  from  the  track, 
and  the  plaintiff  injured,  it  is  incumbent  on  the  defendants  to  prove 
that  the  agents  and  servants  in  charge  of  the  trains  were  persons  of 
competent  skill,  of  good  habits,  and  in  every  respect  qualified  and 
suitably  prepared  for  the  business  in  which  they  were  engaged,  and 
that  they  acted  on  this  occasion  with  reasonable  skill,  and  with  the 
utmost  prudence  and  caution;  and  if  the  disaster  in  question  was 
occasioned  by  the  least  negligence,  or  want  of  skill  or  prudence  on 
their  part,  then  the  defendants  are  liable  in  this  action." 

There  was  no  evidence  in  the  case  in  relation  to  the  skill,  habits , 
or  qualifications  of  the  agents  and  servants  of  the  defendants,  except 


WHO   DEEMED. 

what  arose  from  the  fact  that  the  engineer  had  been  employed  on  a 
railroad  about  four  years,  and  had  been  engineer  for  more  than  two 
years,  and  that  the  fireman  had  been  on  a  railroad  for  about  eighteen 
months. 

Verdict  and  judgment  having  gone  for  the  plaintiff,  the  defendants 
brought  the  case  here  on  error. 

Mr.  Justice  Field.  From  the  whole  evidence  in  this  case  it  is 
plain  that  the  defendants  were  not  common  carriers  of  passengers  at 
the  time  the  accident  occurred,  which  has  led  to  the  present  actio]). 
They  were  merely  contractors  for  building  the  Eastern  Division  of 
the  Union  Pacific  Railway,  and  were  running  a  construction  train 
to  transport  material  for  the  road.  The  entire  train  consisted, 
besides  the  engine  and  its  tender,  of  cars  for  such  material,  and 
what  is  called  in  the  testimony  a  "'caboose  car."  This  latter  car 
was  intended  solely  for  the  accommodation  of  the  men  connected 
with  the  train;  it  contained  their  bunks  and  mattresses;  they  slept 
in  it,  and  deposited  in  it  the  lamps  of  the  car,  and  the  tools  they 
used.  It  was  not  adapted  for  passengers,  and,  according  to  the  tes- 
timony of  the  conductor,  the  defendants  did  not  wish  to  carry  pas- 
sengers, although  when  persons  got  on  to  ride  the  defendants  did 
not  put  them  off,  and  sometimes,  though  not  always,  fare  was 
charged  for  their  carriage. 

The  plaintiff,  who  was  sheriff  of  a  county  in  Kansas,  and  deputy 
marshal  of  the  district,  desired  to  arrest  a  person  on  the  line  of  the 
road,  and,  to  enable  him  to  accomplish  this  purpose,  he  applied  to 
the  conductor  for  passage  on  the  train  as  far  as  Wilson's  Creek,  and 
requested  that  the  train  would  stop  there  until  the  arrest  could  be 
made.  His  wishes  were  granted  in  both  respects,  and  for  the  ser- 
vices rendered  he  paid  at  the  time  a  portion  of  the  fare  charged,  and 
the  balance  subsequently. 

In  the  rendition  of  these  services  for  the  plaintiff  the  defendants 
trere  simply  private  carriers  for  hire.  As  such  carriers,  having  only 
i  construction  train,  they  were  not  under  the  same  obligations  and 
responsibilities  which  attach  to  common  carriers  of  passengers  by 
railway.  The  latter  undertake,  for  hire,  to  carry  all  persons  indif- 
ferently who  apply  for  passage;  and  the  law,  for  the  protection  of 
travellers,  subjects  such  carriers  to  a  very  strict  responsibility.  It 
imposes  upon  them  the  duty  of  providing  for  the  safe  conveyance  of 
passengers,  so  far  as  that  is  practicable  by  the  exercise  of  human 
care  and  foresight.  They  are  bound  to  see  that  the  road  is  in  good 
order;  that  the  engines  are  properly  constructed  and  furnished;  that 
the  cars  are  strong,  and  fitted  for  the  accommodation  of  passengers, 
and  that  the  running  gear  is,  so  far  as  the  closest  scrutiny  can 
detect,  perfect  in  its  character. 

If  any  injury  results  from  a  defect  in  any  of  these  particulars  they 
are  liable. 

They  are  also  bound  to  provide  careful  and  skilful  servants,  com- 


866 


CARRIERS    OF    PASSENGERS. 


petent  in  every  respect  for  the  positions  to  which  they  are  assigned 
in  the  management  and  running  of  the  cars;  and  they  are  respon- 
sible for  the  consequences  of  any  negligence  or  want  of  skill  on  the 
part  of  such  servants. 

They  are  also  bound  to  take  all  necessary  precautions  to  keep 
obstructions  from  the  track  of  the  road;  and  although  it  may  not  be 
obligatory  upon  them,  in  the  absence  of  legislative  enactment,  to 
fence  in  the  road  so  as  to  exclude  cattle,  it  is  incumbent  upon  them 
to  use  all  practical  means  to  prevent  the  possibility  of  obstruction 
from  the  straying  of  cattle  on  to  the  track  as  well  as  from  any  other 
cause.  As  said  by  the  Supreme  Court  of  Pennsylvania,  in  speaking 
of  the  duty  of  railway  companies  in  this  particular:1  "Having 
undertaken  to  carry  safely,  and  holding  themselves  out  to  the  world 
as  able  to  do  so,  they  are  not  to  suffer  cows  to  endanger  the  life  of 
a  passenger  any  more  than  a  defective  rail  or  axle.  Whether  they 
maintain  an  armed  police  at  cross-roads,  as  is  done  by  similar  com- 
panies in  Europe,  or  fence,  or  place  cattle-guards  within  the  bed  of 
their  road,  or  by  any  other  contrivance  exclude  this  risk,  is  for 
themselves  to  consider  and  determine.  We  do  not  say  they  are 
bound  to  do  the  one  or  the  other,  but  if,  by  some  means,  they  do  not 
exclude  the  risk,  they  are  bound  to  respond  in  damages  when  injury 


accrues." 


It  is  evident  that  the  defendants  in  this  case  were  not  subject  to 
any  such  stringent  obligations  and  responsibilities  as  are  here  men- 
tioned. They  did  not  hold  themselves  out  as  capable  of  carrying 
passengers  safely ;  they  had  no  arrangements  for  passenger  service, 
and  they  were  not  required  to  make  provisions  for  the  protection  of 
the  road  such  as  are  usually  adopted  and  exacted  of  railroad  com- 
panies. They  did  not  own  the  road,  and  had  no  interest  in  it 
beyond  its  construction.  It  was  no  part  of  their  duty  to  fence  it 
in  or  to  cut  away  the  bushes  or  Weeds  growing  on  its  sides. 

The  plaintiff  knew  its  condition  and  the  relation  of  the  defendants 
to  it  when  he  applied  for  passage.  He  had  been  previously  over  it 
several  times,  and  was  well  aware  that  there  was  no  turntable  on  a 
portion  of  the  route;  a  fact,  which  compelled  the  defendants  to 
reverse  the  engine  on  the  return  of  the  train  from  Walker's  Creek. 
He,  therefore,  took  upon  himself  the  risks  incident  to  the  mode  of 
conveyance  used  by  the  defendants  when  he  entered  their  cars.  All 
that  he  could  exact  from  them,  under  these  circumstances,  was  the 
exercise  of  such  care  and  skill  in  the  management  and  running  of 
the  train  as  prudent  and  cautious  men,  experienced  in  that  business, 
are  accustomed  to  use  under  similar  circumstances.  Such  care 
implies  a  watchful  attention  to  the  working  of  the  engine,  the  move- 
ment of  the  cars  and  their  running  gear,  and  a  constant  and  vigilant 
lookout  for  the  condition  of  the  road  in  advance  of  the  train.  If 
such  care  and  skill  were  used  by  the  defendants,  they  discharged 

1  Sullivan  v.  Pennsylvania  &  Reading  R.  Co.,  30  Penn.  St.  234. 


WHO    DEEM  K 1 1. 


867 


their  entire  duty  to  the  plaintiff,  and  if  an  accident,  notwithstand- 
ing, occurred,  by  which  he  was  injured,  they  were  not  liable.  They 
were  not  insurers  of  his  safety,  nor  responsible  for  the  consequences 
of  unavoidable  accident. 

The  question  should  have  been  put  to  the  jury  whether  the  defend- 
ants did,  in  fact,  exercise  such  care  and  skill  in  the  management 
and  running  of  the  train  at  the  time  the  accident  occurred.  They 
were  not  responsible  to  the  plaintiff  unless  the  accident  was  directly 
attributable  to  their  negligence  or  unskilfulness  in  that  particular. 

The  evidence  in  the  case  shows  that  the  accident  was  occasioned 
by  the  tender  and  engine  running  against  a  steer.  The  train  was 
proceeding  at  its  usual  rate  of  speed  when  the  steer  suddenly,  from 
a  mass  of  high  weeds  or  grass  growing  on  the  sides  of  the  road, 
leaped  upon  the  track  directly  in  front  of  the  advancing  train,  at  a 
distance  from  it  of  about  twenty  feet.  This  distance  was  so  short, 
and  the  movement  of  the  animal  was  so  sudden,  that  it  was  impos- 
sible to  arrest  the  train,  and  a  collision  followed  which  threw  the 
engine  and  tender  from  the  track.  The  plaintiff,  on  the  happening 
of  the  collision,  either  leaped  from  the  "  caboose  car,"  in  which  he 
was  at  the  time  sitting,  or  was  thrown  from  it,  it  is  immaterial 
which,  and  was  injured. 

The  fifth  instruction  given  by  the  court  turned  the  attention  of 
the  jury  from  the  simple  question  at  issue  for  their  determination, 
and  directed  it  to  the  skill,  habits,  and  attainments  for  their  busi- 
ness of  the  agents  and  servants  of  the  defendants,  as  well  as  to  their 
conduct  on  the  occasion  of  the  accident.  It  held  proof  that  the 
agents  and  servants  were  possessed  of  competent  skill,  of  good 
habits,  and  in  every  respect  qualified  and  suitably  prepared  for  the 
business  in  which  they  were  engaged,  as  essential  as  proof  that  they 
acted  on  the  occasion  with  skill,  prudence,  and  caution.  And  it 
made  the  occurrence  of  the  accident  presumptive  evidence  that  they 
were  destitute  of  such  skill,  habits,  and  qualifications. 
'  We  are  of  opinion  that  the  court  erred  in  this  instruction,  and 
that  it  misled  the  jury.  On  this  ground  the  judgment  of  the  court 
below  must  be 

Reversed,  and  the  cause  remanded  for  a  new  trial. 


HOAR  v.    MAINE   CENTRAL   R.    CO. 

70  Maine,  65.     1879. 

Appleton,  C.  J.  The  material  and  substantive  allegations  in  the 
several  counts  in  the  plaintiff's  writ  are  that  the  defendants  are 
common  carriers  of  passengers  between  Waterville  and  West  Water- 


868  CARRIERS    OF   PASSENGERS. 

ville ;  that  as  such  carriers  they  are  bound  to  carry  all  passengers 
and  persons  lawfully  on  their  road  carefully  and  safely  over  the 
same;  that  the  plaintiff's  intestate,  being  invited  by  one  Potter,  a 
foreman  of  a  section  in  their  employ  and  intrusted  by  them  with 
the  care  and  control  of  one  of  their  hand-cars,  to  ride  with  him  on 
said  hand-car  from  Waterville  to  West  Waterville,  accepted  the 
invitation;  that  the  plaintiff's  intestate,  while  riding,  was  run  over 
by  one  of  the  defendants'  engines,  to  which  a  paymaster's  car  was 
attached,  and  injured  so  that  he  died,  and  that  this  was  through  the 
negligence  of  the  defendants  and  their  servants,  the  deceased  being 
in  the  exercise  of  due  care. 

To  each  count  of  the  declaration  the  defendants  filed  a  general 
demurrer. 

I.  The  liability  of  a  railroad  company  differs  as  to  their  duty  to 
their  servants  and  to  passengers.  They  are  liable  to  servants,  for 
injuries  resulting  from  want  of  due  care  in  the  selection  of  fellow- 
servants,  but  if  duly  selected,  they  do  not  guarantee  against  their 
negligence.  Blake  v.  M.  C.  R.  R.  Co.,  ante.  Not  so  as  to  passen- 
gers, to  whom  they  are  responsible  for  injuries  arising  from  their 
negligence  or  incapacity,  irrespective  of  the  question  of  more  or  less 
care  in  their  selection.  It  is  obvious  that  there  is  no  defect  in  the 
declaration  so  far  as  it  relates  to  the  negligence  of  the  defendants, 
if  they  are  to  be  deemed  common  carriers  by  hand-cars. 

II.  The  plaintiff's  intestate  was  to  be  carried  gratuitously.  But 
that  does  not  place  him  in  a  different  position,  so  far  as  relates  to 
his  right  to  protection  from  neglect,  from  a  pay  passenger,  —  if  he 
is  to  be  regarded  as  a  passenger  to  be  carried  by  the  defendants. 
Phil.  &  Read.  R.  R.  Co.  v.  Derby,  14  How.  (U.  S.)  468.  Wilton 
v.  'Middlesex  R.  R.  Co.,  107  Mass.  108  [912].    Whar.  Neg.,  §  355. 

III.  The  plaintiff  places  her  right  to  recover  upon  a  neglect  by' 
the  defendants  of  their  duties  to  the  intestate  as  common  carriers. 
To  impose  upon  the  defendants  the  duties  and  responsibilities  of 
common  carriers,  they  must  be  shown  to  be  such.  The  grave  and 
important  question,  then,  is  whether  the  defendants,  though  com- 
mon carriers  of  passengers  along  their  road  and  in  their  cars  for 
that  purpose,  are  common  carriers  of  passengers  by  their  hand-cars 
used  by  their  section  men.  Were  the  defendants  chartered  as  com- 
mon carriers  save  by  their  cars  for  passengers?  Have  they  by  their 
acts  or  conduct  held  out  to  the  public,  or  authorized  their  agents  to 
hold  out  to  the  public,  that  they  are  common  carriers  by  their  hand- 
cars? If  they  have  not  been  chartered,  and  have  not  in  any  way  held 
themselves  out,  as  common  carriers  by  hand-cars,  then  the  duties 
and  obligations  resting  upon  them  as  carriers  have  not  arisen. 

If  the  defendants  were  common  carriers  in  relation  to  the  plain- 
tiff's intestate,  they  would  be  bound  to  carry  all  who  should  apply. 
Were,  then,  the  defendants  bound  to  carry  on  their  hand-cars  any 
one  asking  to  be  so  conveyed?     Assuredly  not. 


WHO   DEEMED. 


809 


In  Graham  v.  Toronto,  Grey  &  Bruce  Railway  Co.,  23  Up.  Can. 
(C.  P.)  514,  the  defendants  agreed,  with  a  contractor  for  the  con- 
struction of  their  railway,  to  furnish  a  construction  train  for  bal- 
lasting and  laying  the  track  for  a  portion  of  their  road  then  under 
construction;  the  defendants  to  provide  the  conductor,  engineer  and 
fireman ;  the  contractor  furnishing  the  brakeinen.  On  October  31 
1872,  after  work  was  over  for  the  day  and  the  train  was  returning  to 
Owen  Sound,  where  the  plaintiff,  one  of  the  contractor's  workmen 
lived,  the  plaintiff,  with  the  permission  of  the  conductor  but  with- 
out the  authority  of  the  defendants,  got  on.  Through  the  negli- 
gence of  the  person  in  charge  of  the  train  an  accident  happened, 
and  the  plaintiff  was  injured.  "The  fact,"  remarks  Hagarty,  ('.  .)., 
"that  the  defendant's  engine-driver  or  conductor  allowed  him  to  get 
on  the  platform,  does  not  alter  my  view  of  the  case. 

"I  cannot  distinguish  it  from  the  case  of  a  cart  sent  by  its  owner 
under  his  servant's  care  to  haul  bricks  or  lumber  for  a  house  he  is 
building.  A  workman,  either  with  the  driver's  assent  or  without 
any  objections  from  him,  gets  upon  the  cart.  It  breaks  down,  or 
by  careless  driving  runs  against  another  vehicle,  or  a  lamp  post,  and 
the  workman  is  injured.  I  cannot  understand  by  what  process  of 
reasoning  the  owner  can  in  such  case  be  held  to  incur  any  liability 
to  the  person  injured.  Nor  in  my  opinion,  would  the  fact  that  the 
owner  was  aware  that  the  driver  of  his  cart  often  let  a  friend  or  per- 
son doing  work  at  his  house  drive  in  his  cart  make  any  difference. 
...  It  could  never  be,  I  think,  in  the  reasonable  expectation  of 
these  defendants  that  they  were  incurring  any  liability  as  carriers 
of  passengers,  or  that  they  should  provide  against  contingencies  that 
might  affect  them  in  that  character." 

A  similar  question  arose  in  Sheerman  v.  Toronto,  Grey  &  Bruce 
Railway  Co.,  34  Up.  Can.  (Q.  B.)  451,  where  one  of  the  workmen 
was  being  carried,  without  reward,  on  a  gravel  train,  and  was  injured 
so  that  he  died,  it  was  held  that  the  deceased  was  not  lawfully  on 
the  cars  with  the  consent  of  the  defendants,  and  a  nonsuit  was 
directed.  "The  workmen,"  observes  Wilson,  J.,  "were  not  law- 
fully on  the  cars.  They  were  not  passengers  being  carried  b}T  the 
defendants.  They  were  acting  on  their  own  risk,  not  at  the  risk 
of  the  defendants,  and  however  unfortunate  the  disaster  may  have 
been,  it  is  only  right  the  legal  responsibility  should  fall  on  those 
who  ought  to  bear  it,  and  not  upon  those  upon  whom  it  does  not 
rest."  In  this  case  "it  appeared  that  it  was  not  necessary  the 
defendants  should  carry  the  men  to  and  from  their  work,  and  that 
they  never  agreed  to  do  more  than  to  provide  cars  for  carrying  bal- 
lasting and  materials  for  track  laying." 

The  defendants  not  being  common  carriers,  so  far  as  relates  to 
their  liability  to  the  plaintiff's  intestate,  the  declaration  not  disclos- 
ing facts  which  show  such  liability  must  be  adjudged  bad.  Eaton 
v.  Delaware,  L.   &  W.  R.  R.  Co.,  57  N.  Y.  383.     Union  Pacif.  R. 


870  CARRIERS   OF    PASSENGERS. 

R.  Co.  v.  Nichols,  8  Kan.  505.  In  Dunn  v.  Grand  Trunk  R.  R.  Co., 
58  Maine,  187,  the  plaintiff  was  riding  in  a  saloon  car  attached  to 
a  freight  train,  and  paid  the  customary  fare  for  conveyance  in  a 
passenger  car. 

IV.  A  master  is  bound  by  the  acts  of  his  servant  in  the  course 
of  his  employment,  but  not  by  those  obviously  and  utterly  outside 
of  the  scope  of  such  employment.  If  not  common  carriers,  a  section 
foreman  with  his  hand-car  has  no  right  to  impose  upon  the  defend- 
ants the  onerous  responsibilities  arising  from  that  relation.  He 
has  no  right  to  accept  passengers  for  transportation  and  bind  the 
defendants  for  their  safe  carriage,  and  every  man  may  safely  be 
presumed  to  know  thus  much. 

If  the  risk  is  much  greater  by  this  mode  of  conveyance,  the  plain- 
tiff's intestate  by  adopting  it  assumed  the  extra  risks  arising  there- 
from, and  must  be  held  to  abide  the  unfortunate  consequences. 

No  one  becomes  a  passenger  except  by  the  consent,  express  or 
implied,  of  the  carrier.  There  is  no  allegation  of  express  consent 
by  the  defendants,  nor  of  anything  from  which  consent  can  be 
implied  that  the  plaintiff's  intestate  should  be  carried  at  their  risk 
by  this  unusual  mode  of  conveyance. 

Declaration  bad. 


HOUSTON  AND  TEXAS   CENTRAL   R.    CO.   v.    MOORE. 

49  Tex.  31.     1878. 

August  10,  1872,  William  C.  Moore,  husband  of  Mary  A.  Moore, 
was  on  a  freight  train  running  on  the  Houston  and  Texas  Central 
Railway  between  Hempstead  and  Houston.  At  a  point  about  two 
miles  and  a  half  west  of  Hockley  station  the  train  ran  off  the  track, 
and  Moore  received  injuries,  from  the  effects  of  which  he  died. 

March  3,  1873,  Mary  A.  Moore  brought  suit  against  the  railway 
company,  in  her  own  right,  and  as  mother  and  natural  guardian  of 
William  J.  Moore,  aged  about  thirteen  years,  and  Mattie  F.  Moore, 
aged  about  eight  years.  The  plaintiff  alleged  that  her  husband  came 
to  his  death  by  the  negligence  of  the  defendants,  its  agents  and  ser- 
vants, under  circumstances  such  as  to  make  the  defendant  liable, 
and  claimed  damages  to  the  amount  of  fifty  thousand  dollars. 

The  defendant  excepted  to  the  petition,  because  the  proper  parties 
were  not  shown  to  have  been  made;  pleaded  the  general  issue;  and 
specially  alleged  in  defence  that  the  car  or  train  on  which  the 
deceased  was,  at  the  time  he  received  the  injury,  was  a  freight 
train,  and  that  he  was  on  said  train  without  the  consent  of  the 
defendant,  and  knowingly  in  violation  of  defendant's  orders  and 
instructions;  that  the  injuries  were  the  result  of  the  gross  negli* 


WHO   DEEMED.  §7j 

gence  and  carelessness  of  the  deceased,  and  not  owing  to  the  negli- 
gence or  carelessness  of  the  defendant,  its  servants,  or  agents. 

•  •••••*••.., 

The  jury  returned  a  verdict  for  plaintiff  for  five  thousand  dollars, 
upon  which  judgment  was  rendered. 

Writ  of  error  by  the  defendant. 

Moore,  Associate  Justice.       ....... 

It  appears,  on  the  face  of  appellee's  petition,  that  the  deceased, 
when  he  received  the  injuries  which  caused  his  death,  was  on  a 
freight  train.  The  evidence  shows  that  there  was  no  person  on  said 
train  but  the  employees  of  appellant,  except  the  deceased,  who  had 
been  an  engine-driver,  running  a  train  on  appellant's  road  for  a  year 
or  two,  until  about  a  month  or  six  weeks  previous  to  his  death,  and 
well  knew  that  passengers  were  not  allowed  to  travel  on  freight 
trains  on  appellant's  road;  that  the  officers  in  charge  of  such  trains 
were  forbidden  to  allow  parties  to  ride  upon  them  without  a  special 
pass  from  the  general  superintendent  of  the  road;  that  no  such  pass 
could  be  gotten  without  a  release  of  appellant  from  damages  in  case 
of  accident;  that  this  was  the  condition  upon  which  permits  to  ride 
upon  freight  trains  were  given,  because  of  the  greater  risk  of  acci- 
dents to  passengers  on  freight  trains  than  on  passenger  trains,  and 
because  the  company  would  not  assume  such  risks  on  behalf  of  per- 
sons desiring  to  travel  in  this  unusual  and  extra-hazardous  manner. 

On  the  other  hand,  it  cannot  be  doubted  that  deceased  was  riding 
on  the  train  with  the  knowledge  and  consent  of  the  conductor.  But 
whether  he  paid  fare,  or  had  a  pass  or  permit  to  travel  on  a  freight 
train,  is  not  shown. 

Under  this  state  of  case,  the  question  to  be  determined  is  whether 
appellant  had  assumed  the  risk  of  a  common  carrier  of  passengers  in 
respect  to  the  deceased,  while  thus  riding  upon  its  freight  train ;  or, 
in  other  words,  whether  deceased  was,  in  contemplation  of  law,  a 
passenger  on  appellant's  train;  or  if  not  such  passenger,  strictly 
speaking,  whether  the  assent  of  the  conductor  to  his  getting  upon 
the  train  gave  him  the  right  to  ride  upon  it,  and  render  appellant 
responsible  for  any  injury  done  him  while  thus  on  the  train,  to  which 
he  in  no  manner  contributed. 

Appellant,  as  a  railway  company,  is  a  common  carrier  of  both 
freight  and  passengers;  but  has,  unquestionably,  the  right  to  make 
reasonable  regulations  for  conducting  its  business;  and  parties  deal- 
ing with  it  must  conform  to  such  regulations.  That  a  regulation  of 
a  railway  company,  that  freight  and  passengers  will  be  carried  on 
its  road  in  separate  trains,  is  a  reasonable  regulation,  can  hardly  be 
doubted  by  any  one.  Indeed,  it  seems  a  highly  salutary  regulation 
for  the  public  as  well  as  the  company.  Nor  can  it  be  controvert*  d, 
when  a  railroad  company  makes  other  suitable  provision  for  ] 
senger  travel, that  no  one  has  the  right  to  demand  that  he  shall  be 
allowed  to  ride  in  its  trains  devoted  exclusively  to  the  carrying  of 


872  CARRIERS    OF   PASSENGERS. 

freight.  If  a  party,  in  violation  of  such  regulation,  and  without  the 
consent  of  the  company,  forces  himself  into  one  of  its  freight  trains, 
it  surely  cannot  be  supposed  that  the  company  could  be  held  respon- 
sible to  him  in  its  character  as  a  carrier  of  passengers;  or  that  the 
party  who  should  thus  contribute  to  the  injury  which  he  might  sus- 
tain while  thus  wrongfully  in  the  train,  may  maintain  an  action 
against  the  company  for  such  injury.  Unless  he  could,  an  action 
cannot  be  maintained  under  the  statute  by  his  heirs,  representa- 
tives, and  relatives,  in  case  of  his  death. 

It  may  be  true,  where  a  railroad  company  habitually  permits  pas- 
sengers to  travel  on  its  freight  trains,  notwithstanding  it  may 
by  regulation  prohibit  it,  that  the  company  will  incur  the  same 
responsibility  to  such  passengers  as  if  they  were  on  the  regular 
passenger  cars.  But  when  it  is  shown  that  the  regulations  of  the 
company  absolutely  forbid  passengers  riding  on  freight  trains,  and 
where  there  are  no  cars  attached  to  such  trains  except  those  ordi- 
narily accompanying  trains  exclusively  for  freight,  or  such  as,  by 
their  appearance  and  manner  in  which  they  are  fitted  up,  could  not 
be  properly  regarded  as  inviting  passengers  into  the  train,  the  bur- 
den of  proving  that  the  party  injured  was  justified  in  going  upon 
such  train  as  a  passenger,  properly  devolves  upon  those  who  sue  for 
damages  resulting  from  injuries  sustained  by  him  while  on  such 
train.  Do  the  facts  in  this  case  show  that  appellant  permitted  pas- 
sengers  to  travel  on  its  freight  trains,  notwithstanding  its  regulation 
prohibiting  it,  to  an  extent  or  in  a  manner  to  warrant  the  deceased 
in  supposing  that  he  was  authorized  to  get  upon  its  freight  train  as 
a  passenger?     Certainly  they  do  not. 

If,  then,  it  can  be  inferred  that  the  deceased  was  properly  on  the 
train,  it  must  be  upon  the  supposition  that  he  had  a  special  permit; 
or  that  the  conductor  of  the  train  was  authorized  to  annul  or  waive 
the  regulation  of  the  company,  prohibiting  passengers  from  travel- 
ling in  freight  trains.  But  the  evidence  shows  that  the  conductor 
had  no  such  authority,  and  that  the  deceased  must  have  known  that 
he  had  not. 

This  is  not  the  case  of  an  ordinary  traveller,  unacquainted  with 
the  regulations  of  the  railroad,  or  if  acquainted  with  them  at  all, 
only  in  a  general  way ;  or  of  one  who  is  uninformed  as  to  the  powers 
and  functions  of  the  officer  in  charge  of  the  train,  and  who,  if  he 
knew  that  passengers  had  been  sometimes  carried  by  such  train, 
might  suppose  that  the  officer  in  charge  of  it  had  authority  to  relax 
or  set  aside  the  rule  in  special  cases;  which  seems  to  be  the  extent 
to  which  the  case  of  Dunn  v.  Grand  Trunk  Railway,  58  Me.,  187, 
relied  upon  by  appellee,  goes,  — but  which,  even  on  its  facts,  seems 
to  be  greatly  questioned  by  Judge  Bedfield,  the  distinguished  com- 
mentator on  railroad  law  (Redf.  Am.  Railroad  Cases,  490);  and  to 
have  been  denied  by  the  New  York  Commissioners  of  Appeal,  in 
the  case  of  Eaton  v.  The  Delaware,  &c.  [57  N.  Y.  382].     Here,  the 


PUBLIC    CALLING. 

deceased,  who,  only  a  short  time  previously  to  his  going  on  the 
train,  had  been  in  the  employment  of  appellant,  must  have  known 
that  the  conductor  was  forbidden  to  allow  him  to  travel  as  a 
passenger  upon  the  train. 

It  cannot,  in  view  of  all  the  facts  of  this  case,  be  said  that  appel- 
lant had  undertaken  or  contracted  with  the  deceased  to  carry  him  as 
a  passenger  over  its  road,  or  that  we  are  warranted  in  saying  the 
'prima  facie  presumption  that  the  deceased  was  wrongfully  upon 
appellant's  train,  when  he  received  the  injuries  which  caused  his 
death,  has  been  rebutted;  and,  if  death  had  not  ensued,  that  he 
could  have  maintained  an  action  against  appellant  on  account  of  the 
injuries  which  he  received  by  the  wreck  of  the  train.  The  judg- 
ment must  therefore  be  reversed  and  the  cause  remanded.  And  it 
is  so  decreed. 


2.    PUBLIC   CALLING. 

BENNETT   v.    DUTTON. 
10  N.  H.  481.     1839. 

The  declaration  alleged  that  the  defendant  was  part  owner  and 
driver  of  a  public  stage-coach  from  Nashua  to  Amherst  and  Fran- 
cestown ;  that  on  the  31st  January,  1837,  the  plaintiff  applied  to 
him  to  be  received  into  his  coach,  at  Nashua,  and  conveyed  from 
thence  to  Amherst,  offering  to  pay  the  customary  fare ;  and  that  the 
defendant,  although  there  was  room  in  his  coach,  refused  to  receive 
the  plaintiff. 

It  appeared  in  evidence,  that  at  the  time  of  the  grievance  alleged 
there  were  two  rival  lines  of  daily  stages,  running  between  Lowell, 
in  Massachusetts,  and  Nashua;  that  Jonathan  B.  French  was  the 
proprietor  of  one  of  these  lines,  and  Nelson  Tuttle  of  the  other; 
that  Tuttle's  line  ran  no  farther  than  from  Lowell  to  Nashua;  that 
French  and  the  proprietors  of  the  defendant's  line  were  interested 
in  a  contract  for  carrying  the  United  States  mail  from  Lowell  to 
Francestown,  through  Amherst  (dividing  the  mail  money  in  pro- 
portion to  the  length  of  their  respective  routes) ,  so  as  to  form  one 
continuous  mail  route  from  Lowell  to  Francestown;  that  French 
and  the  proprietors  of  the  defendant's  line  had  agreed  to  run  their 
respective  coaches  so  as  to  form  a  continuous  line  for  passengers 
from  Lowell,  through  Amherst,  to  Francestown,  and  that  their 
agents  and  drivers  might  engage  seats  for  the  whole  distance  ;it" 
such  rates  of  fare  as  they  thought  expedient;  and  the  amount  thus 
received,   in   instances   where  they  thought  proper  to  receive   less 


874  CARRIERS    OF   PASSENGERS. 

than  the  regular  fare,  was  to  be  divided  between  said  proprietors, 
in  proportion  to  the  length  of  their  respective  routes ;  that  it  was 
also  agreed,  that  if  the  defendant's  line  brought  down  to  Nashua  an 
extra  number  of  passengers,  French  should  see  them  through,  and 
be  at  the  expense  of  furnishing  extra  coaches  and  horses,  if  neces- 
sary, to  convey  them  to  Lowell;  and,  on  the  other  hand,  if  French's 
line  brought  up  an  extra  number  of  passengers  from  Lowell  to 
Nashua,  the  proprietors  of  the  defendant's  line  were  to  do  the  same, 
for  the  conveyance  of  such  passengers  above  Nashua;  and  that  it 
was  further  agreed  (as  Tuttle's  line  ran  no  farther  than  from  Lowell 
to  Nashua)  by  the  proprietors  of  the  defendant's  line,  that  they 
would  not  receive  into  their  coaches,  at  Nashua,  passengers  for 
places  above  Nashua,  who  came  up  from  Lowell  to  Nashua,  on  the 
same  day,  in  Tuttle's  line;  the  time  of  starting  from  Lowell  and 
arriving  at  Nashua  being  the  same  in  both  lines. 

One  of  the  requisitions  of  mail  contracts  is,  that  each  line  of 
stage-coaches  running  into  another,  so  as  to  form  a  continuous  mail 
line,  shall  give  preference  to  passengers  arriving  in  the  line  with 
which  it  connects,  and  shall  forward  them  in  preference  to  any 
others. 

There  were  several  other  lines  which  started  from  Lowell  at  the 
same  time  with  the  lines  before  mentioned,  running  to  other  places, 
through  Nashua;  and  it  was  generally  the  understanding  between 
their  respective  proprietors,  that  one  line  should  not  take,  for  apart 
of  the  distance  where  the  route  was  the  same,  passengers  who  were 
going  on  further  in  another  line;  though  this  understanding  had 
been  occasionally  interrupted. 

The  plaintiff  being  at  Lowell  on  the  31st  of  January,  1837,  took 
passage  and  was  conveyed  to  Nashua  in  Tuttle's  line;  and  imme- 
diately on  his  arrival  at  Nashua  applied  to  be  received  into  the 
defendant's  coach,  and  tendered  the  amount  of  the  regular  fare. 
There  was  room  for  the  plaintiff  to  be  conveyed  on  to  Amherst,  but 
the  defendant  refused  to  receive  him. 

The  plaintiff  was  notified,  by  the  agent  of  the  line  of  French  and 
the  defendant,  at  Lowell,  previous  to  taking  passage  in  Tuttle's 
coach  for  Nashua,  that  if  he  wished  to  go  from  Nashua  to  Amherst 
on  that  day,  in  the  regular  mail  line,  he  must  take  the  mail  line  at 
Lowell;  and  that  if  lie  took  passage  in  Tuttle's  line  from  Lowell  to 
Nashua  he  would  not  be  received,  at  Nashua,  into  the  defendant's 
coach. 

The  parties  agreed  that  judgment  should  be  rendered  for  the 
plaintiff,  for  nominal  damages,  or  for  the  defendant,  according  to 
the  opinion  of  this  court  upon  these  facts. 

Parker,  C.  J.  It  is  well  settled  that  so  long  as  a  common  car- 
rier has  convenient  room,  he  is  bound  to  receive  and  carry  all  goods 
which  are  offered  for  transportation,  of  the  sort  he  is  accustomed  to 
carry,  if  they  are  brought  at  a  reasonable  time,  and  in  a  suitable 


PUBLIC    GALLING.  s;- 

condition.     Story  on  Bailments,  328;  5  Bing.  R.  217  [461],  Riley  y. 
Home  (15  Eng.  C.  L.  R.  426). 

And  stage-coaches  which  transport  goods  as  well  as  passengers, 
are,  in  respect  of  such  goods,  to  be  deemed  common  carriers,  and 
responsible  accordingly.     Story,  325. 

Carriers  of  passengers,  for  hire,  are  not  responsible,  in  all  partic- 
ulars, like  common  carriers  of  goods.  They  are  not  insurers  of  per- 
sonal safety  against  all  contingencies,  except  those  arising  from  the 
acts  of  God  and  the  public  enemy.  For  an  injury  happening  to  the 
person  of  a  passenger  by  mere  accident,  without  fault  on  their  part, 
they  are  not  responsible;  but  are  liable  only  for  want  of  due  care, 
diligence,  or  skill.  This  results  from  the  different  nature  of  the  case. 
But  in  relation  to  the  baggage  of  their  passengers,  the  better  opinion 
seems  to  be  that  they  are  responsible  like  other  common  carriers  of 
goods. 

And  we  are  of  opinion  that  the  proprietors  of  a  stage-coach,  for 
the  regular  transportation  of  passengers,  for  hire,  from  place  to  place, 
are,  as  in  the  case  of  common  carriers  of  goods,  bound  to  take  all 
passengers  who  come,  so  long  as  they  have  convenient  accommoda- 
tion for  their  safe  carriage,  unless  there  is  a  sufficient  excuse  for 
a  refusal.  2  Sumner,  221  [891],  Jencks  v.  Coleman;  19  Wend. 
R.  239. 

The  principle  which  requires  common  carriers  of  goods  to  take  all 
that  are  offered,  under  the  limitations  before  suggested,  seems  well 
to  apply. 

Like  innkeepers,  carriers  of  passengers  are  not  bound  to  receive 
all  comers.  8  N.  H.  Rep.  523,  Markham  v.  Brown  [245].  The  character 
of  the  applicant,  or  his  condition  at  the  time,  may  furnish  just 
grounds  for  his  exclusion.  And  his  object  at  the  time  may  furnish 
a  sufficient  excuse  for  a  refusal;  as,  if  it  be  to  commit  an  assault 
upon  another  passenger,  or  to  injure  the  business  of  the  proprietors. 

The  case  shows  the  defendant  to  have  been  a  general  carrier  of 
passengers,  for  hire,  in  his  stage-coach,  from  Nashua  to  Amherst, 
at  the  time  of  the  plaintiff's  application.  It  is  admitted  there  was 
room  in  the  coach;  and  there  is  no  evidence  that  he  was  an  improper 
person  to  be  admitted,  or  that  he  came  within  any  of  the  reasons 
of  exclusion  before  suggested. 

It  has  been  contended  that  the  defendant  was  only  a  special  car- 
rier of  passengers,  and  did  not  hold  himself  out  as  a  carrier  of  per- 
sons generally;  but  the  facts  do  not  seem  to  show  a  holding  out  for 
special  employment.  He  was  one  of  the  proprietors,  and  the  driver, 
of  a  line  of  stages  from  Nashua  to  Amherst  and  Francestown.  The} 
held  themselves  out  as  general  passenger  carriers  between  those 
places.  But,  by  reason  of  their  connection  with  French's  line  of 
stages  from  Lowell  to  Nashua,  they  attempted  to  make  an  exception 
of  persons  who  came  from  Lowell  to  Nashua,  in  Tuttle's  stage,  on 
the  same  day  in  which  they  applied  for  a  passage  for  the  north.     It 


876  CARRIERS    OF    PASSENGERS. 

is  an  attempt  to  limit  their  responsibility  in  a  particular  case,  or 
class  of  cases,  on  account  of  their  agreement  with  French. 

It  is  further  contended  that  the  defendant  and  other  proprietors 
had  a  right  to  make  rules  for  the  regulation  of  their  business,  and 
among  them  a  rule  that  passengers  from  Lowell  to  Amherst  and 
onward  should  take  French's  stage  at  Lowell;  and  that  by  a  notice 
brought  home  to  the  individual  the  general  responsibility  of  the 
defendant,  if  it  existed,  is  limited. 

But  we  are  of  opinion  that  the  proprietors  had  no  right  to  limit 
their  general  responsibility  in  this  manner. 

It  has  been  decided,  in  New  York,  that  stage-coach  proprietors 
are  answerable,  as  common  carriers,  for  the  baggage  of  passengers ; 
that  they  cannot  restrict  their  common-law  liability  by  a  general 
notice  that  the  baggage  of  passengers  is  at  the  risk  of  the  owners; 
and  that  if  a  carrier  can  restrict  his  common-law  liability  it  can  only 
he  by  an  express  contract.  19  Wend.  234  [465],  Hollister  v.  Nowlen. 
And  this  principle  was  applied,  and  the  proprietors  held  liable  for 
the  loss  of  a  trunk,  in  a  case  where  the  passenger  stopped  at  a  place 
where  the  stages  were  not  changed,  and  he  permitted  the  stage  to 
proceed,  without  any  inquiry  for  his  baggage.  19  Wend.  251,  Cole 
v.  Goodwin.  However  this  may  be,  as  there  was  room  in  the 
defendant's  coach,  he  could  not  have  objected  to  take  a  passenger 
from  Nashua,  who  applied  there,  merely  because  he  belonged  to 
some  other  town.  That  would  furnish  no  sufficient  reason,  and  no 
rule  or  notice  to  that  effect  could  limit  his  duty.  And  there  is  as 
little  legal  reason  to  justify  a  refusal  to  take  a  passenger  from 
Nashua,  merely  because  he  came  to  that  place  in  a  particular  con- 
veyance. The  defendant  might  well  have  desired  that  passengers 
at  Lowell  should  take  French's  line,  because  it  connected  with  his. 
But  if  he  had  himself  been  the  proprietor  of  the  stages  from  Lowell 
to  Nashua,  he  could  have  had  no  right  to  refuse  to  take  a  passenger 
from  Nashua,  merely  because  he  did  not  see  fit  to  come  to  that  place 
in  his  stage.  It  was  not  for  him  to  inquire  whether  the  plaintiff 
came  to  Nashua  from  one  town  or  another,  or  by  one  conveyance  or 
another.  That  the  plaintiff  proposed  to  travel  onward  from  that 
place  could  not  injuriously  affect  the  defendant's  business;  nor  was 
the  plaintiff  to  be  jmmshed,  because  he  had  come  to  Nashua  in  a 
particular  manner. 

The  defendant  had  good  right,  by  an  agreement  with  French,  to 
give  a  preference  to  the  passengers  who  came  in  French's  stage ;  and 
as  they  were  carriers  of  the  mail  on  the  same  route,  it  seems  he  was 
bound  ,so  to  do  without  an  agreement.  If,  after  they  were  accom- 
modated, there  was  still  room,  he  was  bound  to  carry  the  plaintiff, 
without  inquiring  in  what  line  he  came  to  Nashua. 

Judgment  for  the  plaintiff. 


PUBLIC   CALLING.  877 


NEVIN  v.   PULLMAN  PALA.CE   CAE   CO. 

106  111.  222.     1883. 

Mb.  Justice  Mulkey.  This  was  an  action  on  the  case,  brought 
by  Luke  Nevin,  the  plaintiff  in  error,  in  the  Circuit  Court  of 
McLean  County,  against  the  Pullman  Palace  Car  Company,  the 
defendant  in  error,  for  refusing  to  permit  him  to  occupy  a  sleeping 
berth  in  one  of  its  cars,  which  had  been  assigned  to  him,  and  which 
he  was  ready  and  offered  to  pay  for.  The  Circuit  Court  sustained 
a  general  demurrer  to  the  declaration,  and  the  plaintiff  electing  to 
stand  by  his  declaration,  judgment  was  entered  against  him  for 
costs,  which,  on  appeal,  was  affirmed  by  the  Appellate  Court  for  the 
Third  District,  and  the  plaintiff  in  error  brings  the  record  here  for 
review. 

The  declaration,  omitting  mere  formal  averments  and  unnecessary 
verbiage,  charges,  in  substance,  that  the  plaintiff,  on  the  4th  day  of 
August,  1881,  at  Dubuque,  Iowa,  purchased  of  the  Illinois  Central 
Railroad  Company,  for  his  niece,  wife,  and  himself,  respectively, 
three  first-class  passenger  tickets  over  that  company's  railway,  from 
Dubuque,  Iowa,  to  Chicago,  this  State;  that  having  provided  him- 
self with  these  tickets,  he,  together  with  his  wife  and  niece,  about 
ten  o'clock  of  the  night  of  that  day,  and  just  before  the  train  from 
Dubuque  to  Chicago  started  out,  entered  a  sleeping  car  called  "Kal- 
amazoo," belonging  to  and  constituting  a  part  of  said  train,  which 
said  sleeping  car  was  then  in  the  possession  and  under  control  of 
the  defendant;  that  upon  entering  the  car  he  engaged  of  the  conduc- 
tor of  said  car  two  lower  berths,  at  one  dollar  and  fifty  cents  each; 
that  the  conductor  thereupon  assigned  one  berth  to  his  niece,  and 
one  to  plaintiff  and  his  wife,  promising  to  have  them  made  up  a 
little  later  in  the  night;  that  he  and  his  wife  took  the  seats  in  the 
berth  assigned  to  them,  and  remained  sitting  up,  in  an  orderly  man- 
ner, until  about  twelve  o'clock,  frequently,  in  the  mean  time,  request- 
ing the  conductor  to  have  the  berths  made  up,  so  they  could  retire 
to  rest,  and  at  the  same  time  tendering  to  him  the  price  agreed  to  be 
paid  therefor;  that  on  the  arrival  of  the  train -at  Lena,  this  State, 
about  the  hour  just  stated,  plaintiff  temporarily  left  his  seat,  and 
stepped  out  on  the  platform  of  the  sleeper,  intending  to  return 
immediately  to  his  berth,  when  the  conductor  instantly  closed  and 
secured  the  outer  doors  of  said  sleeper,  and  thereby  prevented  him 
from  again  entering  the  same;  that  plaintiff  endeavored  to  open  said 
doors  and  re-enter  said  car,  and  frequently  requested  the  conductor 
to  permit  him  to  do  so,  but  that  said  conductor,  instead  of  comply- 
ing with  his  request,  removed  his  satchel,  coats,  and  shoes  from  the 


878  CARRIERS    OF    PASSENGERS. 

berth  so  assigned  to  him  and  his  wife,  to  another  car,  and  ejected 
the  latter  from  said  sleeper;  by  means  of  which  plaintiff  was  com- 
pelled to  take  and  occupy  a  seat  in  a  common  passenger  car  on  said 
train  till  its  arrival  in  Chicago,  by  reason  of  which  plaintiff  was 
deprived  of  his  rest  and  sleep,  in  consequence  of  which  "he  became 
exceedingly  weary  and  sick,  and  was  greatly  humiliated,"  &c. ;  that 
his  expulsion  from  his  berth  in  the  manner  stated  was  done  wilfully 
and  maliciously,  and  that  the  only  reason  assigned  by  the  conductor 
for  refusing  the  price  of  the  berths  was,  "  that  they  were  not  made 
up." 

It  is  not  claimed  or  pretended,  as  we  understand  counsel,  that  the 
facts  alleged  in  the  declaration  do  not  show  a  good  cause  of  action, 
but  the  claim  rather  is,  that  they  disclose  a  right  to  recover  in 
assumpsit,  and  not  in  case,  — or,  in  other  words,  the  contention  is, 
that  the  plaintiff  has  misconceived  his  action;  that  the  only  wrong 
complained  of  consists  of  a  breach  of  an  express  contract,  and  there- 
fore the  action  should  have  been  brought  in  form  ex  contractu,  and 
not  in  form  ex  delicto,  as  it  was. 

We  shall  not  attempt  a  review  of  the  authorities,  with  a  view  of 
extracting  from  them  some  general  principle  or  rule  by  which  the 
question  in  hand  may  be  satisfactorily  solved,  but  shall  content  our- 
selves with  adverting  to  such  general  rules  and  principles  relating 
to  the  subject  as  are  fully  established  by  the  authorities,  and  which 
we  regard  as  conclusive  of  the  question.  We  have  been  led  to  adopt 
this  course  mainly  from  two  considerations.  In  the  first  place,  the 
cases  bearing  on  the  question  are  so  very  numerous  that  a  general 
review  of  them  would  be  an  almost  endless  undertaking;. and  in  the 
next  place,  it  would  be  impossible  to  harmonize  all  that  has  been 
said  by  the  courts,  even  of  the  highest  character,  in  attempting  to 
define  the  true  and  exact  limits  of  an  action  on  the  case. 

To  proceed,  then,  it  is  agreed  by  all  the  authorities  the  gravamen 
of  the  charge  in  an  action  on  the  case  is  the  tort  or  wrong  of  the 
defendant,  notwithstanding  such  tort  or  wrong  may  be  also  a  breach 
of  an  express  or  implied  contract,  whereas  in  an  action  ex  contractu 
the  gist  of  the  action  is  the  breach  of  the  contract,  without  regard 
to  the  tortious  character  of  the  act  of  the  defendant.  It  follows, 
therefore,  if  there  is  a  right  of  recovery  at  all  in  this  case,  it  must 
be  upon  the  ground  the  defendant  has  been  guilty  of  some  tort  or 
wrong  resulting  in  damage  to  the  plaintiff.  That  the  conduct  of  the 
defendant  was  wrong  and  indefensible,  and  that  the  plaintiff  was 
subjected  to  great  inconvenience  and  suffering  in  consequence  of  it, 
is  not,  and  cannot  be  denied;  but  the  contention  is,  that  all  the 
defendant  did  on  the  occasion  was  a  mere  breach  of  the  special  con- 
tract between  the  parties,  and  that  the  remedy  therefore  is  on  the 
contract,  and  not  in  tort,  —  and  this  is  the  vital  question  in  the 
case. 

AVithout  stopping,  for  the  present,  to  inquire  whether  the  posi- 


PUBLIC   CALLING.  879 

fcion  of  the  defendant  is  well  founded  to  the  extent  claimed,  but  con- 
ceding it  to  be  so  for  the  purposes  of  the  argument,  is  it  true,  as  a 
universal  proposition,  that  this  form  of  action  will  not  lie  in  any 
case  where  the  conduct  complained  of  is  a  direct  breach  of  an  express 
contract?  Certainly  not.  A  simple  illustration  will  demonstrate 
the  fallacy  of  such  a  position.  Suppose  A  contracts  with  B  to  keep 
the  latter's  horse  for  an  indefinite  period  at  fifty  cents  a  da)',  the 
horse  to  be  returned  to  B  on  demand,  and  A,  after  having  been  paid 
all  charges  for  the  keep  of  the  horse,  should  refuse  to  redeliver  him 
to  B,  on  demand,  no  one,  in  such  case,  would  question  for  a  moment 
the  right  of  B  to  maintain  an  action  of  trover  against  A  for  the 
horse,  which  is  one  species  of  the  action  on  the  case,  and  yet,  in  the 
case  supposed,  the  refusal  of  A  to  deliver  the  horse,  the  real  cause 
of  action  is,  in  the  strictest  sense  of  the  term,  a  direct  breach  of  the 
special  contract  between  the  parties.  While  the  fact  that  the  act  or 
acts  complained  of  constitute  the  breach  of  a  special  contract  between 
the  parties  may  always  be  looked  to,  in  connection  with  other  ele- 
ments that  enter  into  the  question,  it  is  by  no  means  conclusive  in 
determining  whether  case  will  lie.  An  examination  of  the  standard 
authors  who  have  treated  of  this  subject,  as  well  as  of  the  decisions 
bearing  on  the  question,  conclusively  shows  that  there  are  many 
elements  that  often  enter  into  the  question  besides  the  one  just  men- 
tioned, such  as  the  business,  profession  or  calling  of  the  wrong-doer; 
the  character  of  the  relations  between  the  parties,  —  whether  one 
of  trust  and  confidence,  or  otherwise;  whether  the  defendant  rests 
under  any  implied  duties  or  obligations  to  the  plaintiff,  arising 
either  ex  contractu  or  ex  lege,  and  the  like.  One  or  more  of  these 
considerations  often  become  important  factors  in  determining  whether 
the  action  will  lie. 

It  is  a  familiar  doctrine  that  case  will  lie  for  a  mere  nonfeasance 
against  persons  exercising  certain  public  trades  or  employments, 
where  no  contractual  relation  exists  between  them  and  the  plaintiff, 
as  where  a  common  carrier,  having  the  requisite  means  of  transpor- 
tation, refuses  to  carry  goods  or  passengers.  Chitty,  in  discussing 
this  matter,  in  his  work  on  Pleadings,  says:  "There  are,  however, 
some  particular  instances  of  persons  exercising  certain  public  trades 
or  employments,  who  are  bound  by  law  to  do  what  is  required  of 
them  in  the  course  of  their  employments  without  aid  of  express  con- 
tract, and  are  in  return  entitled  to  a  recompense,  and  may.  there- 
fore, be  sued  in  case,  as  for  a  breach  of  duty  in  refusing  to  exereise 
their  callings, — as,  where  a  common  carrier,  having  convenience, 
refuses  to  carry  goods,  being  tendered  satisfaction  for  the  carriage: 
or  an  inn-keeper  to  receive  a  guest,  having  room  for  him;  or  a  smith 
having  materials  for  the  purpose,  to  shoe  a  horse  for  a  traveller:  or 
a  ferryman  to  convey  one  over  a  common  ferry ,  and  the  like."  (Vol. 
I.  136.)  It  is  clear,  from  the  language  of  this  author,  the  classes  of 
persons  enumerated  are  intended  as  mere  examples  of  the  applica 


880 


CARRIERS    OF    PASSENGERS. 


tion  of  the  general  principle  stated,  and  not  as  a  limitation  of  the 
rule  itself,  and  by  a  well-recognized  rule  of  the  common  law  the 
same  principle  should  be  extended  to  all  other  trades  and  callings 
that  bear  the  same  relation  to  the  public  as  those  just  enumerated, 
and  the  fact  that  no  precedent  can  be  found  for  it  is  entitled  to  but 
little  consideration,  when  it  is  clear  the  case  in  hand  falls  within 
the  principle.     This  is  particularly  true  with  respect  to  extending 
as  a  remedy  the  action  we  are  considering,  to  new  states  of  facts, 
where  they  clearly  fall  within  the  general  principle  upon  which  the 
action  is  maintained.     To  the  objection  there  was  no  precedent  for 
the  action  made  on  a  certain  occasion  before  Pratt,  Ch.  J.  (after- 
wards Lord  Camden),  he  is  reported  to  have  said:  "I  wish  never  to 
hear   this  objection  again.     The   action    is   for  a  tort.     Torts  are 
infinitely  various,  not  limited  or  confined,  for  there  is  nothing  in 
nature  but  may  be  an  instrument  of  mischief."     Indeed,  the  writ  in 
case,  as  its  very  name  imports,  was  invented  for  the  express  pur- 
pose of  giving  a  remedy  where  none,  of  the  old  forms  of  writs  were 
applicable,  and  the  British  Parliament,   by  Stat.   Westm.  2  C.  24, 
with  the  view  of  promoting  the  remedy   by   this    writ,    expressly 
directed  thai  "  where  in  one  case  a  writ  is  granted,   in  like  case, 
when  like  remedy  falleth,  the  writ  shall  be  made  as  hath  been  used 
before;"  and  when  "in  one  case  a  writ  is  found,  and  in  like  case, 
falling  under  like  law,  and  requiring  like  remedy,  is  found  none,  the 
clerks  of  the  chancery  shall  agree  in  making  the  writ."    2  Inst.  404. 
Since,  as  we  have  just  seen,  certain  legal  consequences  affecting 
the  question  we  are  considering  result  from  the  exercise  of  certain 
public  trades  or  employments,  it  becomes  important  to  determine, 
with  some  degree  of  particularity,  the  true  relation  which  the  Pull- 
man Palace  Car  Company  sustains  to  the  public,  and  to  point  out, 
so  far  as  we  are  able,  the  difference  between  it  and  persons  or  com- 
panies exercising  public  callings  or  employments  like  those  above 
enumerated,  if,  indeed,  any  such  difference  exists.     Like  an  ordinary 
railway  company  engaged  in  the  transportation  of  freight  and  pas- 
sengers,  this  company  transacts   its  entire  business,   so  far  as   it 
relates  to  this  case,   over  the  various   railways  in   this    and   other 
States.     Like  railway  companies,  it  exercises  special  privileges  and 
franchises  granted  to  it  by  the  State,  and  its  business  is  transacted 
almost  exclusively  with  the  travelling  public.     Its  cars  on  the  various 
lines  of  road  are  extensively  advertised  all  over  the  country,  setting 
forth,  in  fitting  terms,  the  accommodations  and  comforts  they  afford, 
rates  of  charges,  &c,  and  the  public  are  earnestly  invited  to  avail 
themselves  of  the  advantages  and  comforts  they  thus  offer.     In  what 
respect,  then,  does  this  company  differ  in  its  relation  to  the  public, 
so  far  as  the  present  inquiry  ie  concerned,  from  an  ordinary  rail- 
way company?     No  difference  has  been  pointed  out  by  counsel,  and 
we  are  confident  none  can  be.     Why,   then,  should  not  the  same 
principles  be  held  to  apply  to  it  that  apply  to  common  carriers,  and 


PUBLIC    CALLING.  881 

others  in  like  employments,  in  so  far  as  their  relation  to  the  public 
is  the  same?     To  say  there  is  no  precedent  for  it,  we  have  just  seen, 
is  not  a  sufficient  answer.     Indeed,  it  has  ever  been  the  boast  of  the 
common  law,  that,  by  reason  of  its  elasticity,  it  adjusts  and  moulds 
itself  to  meet  the  constant  changes  in  the  affairs  of  life,  and  that  it 
never  hesitates  to  apply  old  rules  to  new  cases,  when  it  is  clear  they 
come  within  the  reasons  or  principles  of  such  rules.     The  business 
of  this  company  in  running  its   elegant  and  commodious  sleepers 
over  various  lines  of  railways  has  become  one  of  the  great  industries 
and  enterprises  of  the  country,   contributing,   perhaps,  as  much  or 
more,  than   any  one   thing  to  the  convenience  and  comfort  of  the 
travelling  public.     Indeed,  the  running  of  these  sleepers  has  become 
a  business  and  social   necessity.     Such  being  the  case,  can  it  be 
maintained  the  law  imposes  no  obligations  or  restrictions  on  this 
company  in   the  discharge  of  its   duties  to  the  public?     Or,  more 
accurately  put,  is  it  true  this  company  owes  no  duties  to  the  public 
except  such  as  are  due  from  one  mere  private  person  to  another? 
Can  it  be  possible  that  the  common  carrier,  the  ferryman,  the  inn- 
keeper, and  even  the  blacksmith  on  the  roadside,  are  all,  by  reason 
of  the  public  character  of  their  business,  by  mere  force  of  law,  placed 
under  special  obligations  and  duties  to  the  public  which  they  are 
bound  to  observe  in  the  exercise  of  their  respective  callings,  while, 
at  the  same  time,  this  company  is  entirely  relieved  from  the  observ- 
ance of   all    such  duties   and   obligations  which  are  not  expressly 
contracted  for?     We  think  not.     To  so  hold  would  be  to  unjustly 
discriminate  between  parties  similarly  situated,  and  make  the  law 
inconsistent  with  itself,  to  the  great  detriment  of  the  public. 

If,  then,  this  company  owes  any  duties  to  the  community  by 
reason  of  its  relation  to  the  public,  as  we  hold  it  does,  manifestly 
one  of  them  is,  that  it  shall  treat  all  persons  whose  patronage  it  has 
solicited  with  fairness  and  without  unjust  discrimination.  When, 
therefore,  a  passenger,  who,  under  the  rules  of  the  company,  is 
entitled  to  a  berth  upon  payment  of  the  usual  fare,  and  to  whom  no 
personal  objection  attaches,  enters  the  company's  sleeping  car  at  a 
proper  time  for  the  purpose  of  procuring  accommodations,  and  in  an 
orderly  and  respectful  manner  applies  for  a  berth,  offering  or  ten- 
dering the  customary  price  therefor,  the  company  is  bound  to  fur- 
nish it,  provided  it  has  a  vacant  one  at  its  disposal.  To  require 
this  of  the  company  is  merely  exacting  of  it  that  which  is  clearly 
dictated  by  the  plainest  principles  of  justice  and  fair  dealing.  To 
construe  the  law  otherwise  might  lead  to  great  abuses  and  tin' 
grossest  injustice,  detrimental  alike  to  public  and  private  interests. 
Suppose,  for  instance,  a  party  who,  by  reason  of  advanced  age  or 
feeble  health,  is  unable  to  travel  after  night  except  in  a  sleeper, 
having  an  important  business  engagement  at  a  distant  point  on  a 
specified  day,  with  a  choice  of  several  routes,  after  having  examined 
the  advertisements  relating  to  them  makes  his  selection  of  the  one 


8S2  CARRIERS    OF    PASSENGERS. 

that   has  through  sleepers,   and  accordingly  arranges  his  time  of 
departure  so  as  to  reach  his  destination  by  travelling  day  and  night. 
At  the  appointed  time  for  leaving  he  provides  himself  with  a  first- 
class  ticket  over  the  road  and  enters  the   sleeper,   where  he  finds 
plenty  o±  vacant  berths,  and  asks  the  conductor  to  assign  him  one, 
tendering  the   customary  price  therefor,    but  the  conductor,   from 
some  private  pique,  or  from  mere  wantonness,   refuses  to   let  him 
have  one,  and  by  reason  of  such  refusal  he  is  unable  to  meet  his 
business  engagement,   whereby  he  is  subjected  to  great  pecuniary 
loss.     Can  it  be  said  there  is  no  remedy  in  such  case?     Certainly  it 
can,  if  the  law  does  not,  under  the  circumstances  supposed,  impose 
upon  the  company  the  duty  of  furnishing  berths  when  it  has  them 
for  disposal.     But,  as  we  have  already  seen,  such  is   not  the  law. 
Holding  then,  as  we  do,  where  there  are  sleeping  berths  not  engaged, 
it  is  the  duty  of  the  company,  upon  the  payment  or  tender  of  the 
customary  price,  to  furnish  them  to  applicants  when  properly  called 
for  by  unobjectionable  persons,    it  follows  the   defendant  was  not 
justifiable  in  refusing  to  let  the  plaintiff  have  one  for  himself  and 
wife,  and   it  is  well  settled  the   fact  there   was   a   special  contract 
between  the  company  and  the  plaintiff,  upon  which   an  action   of 
assumpsit  might  have  been  maintained,  does  not  at  all  affect  the 
right  to   recover   in   the  present  form  of  action,  which  is  founded 
upon  the  defendant's  common  law  liability,  as  above  stated. 

But  outside  of  this  view,  of  the  soundness  of  which  we  have  no 
doubt,  the  same  result  may  be  reached  by  a  somewhat  different 
process,  though  the  principle,  perhaps,  is  the  same  in  both  cases. 
Let  us  assume,  then,  for  the  purposes  of  the  argument,  the  defend- 
ant owes  to  the  public  no  common  law  duties  in  the  absence  of  any 
contract  relating  to  its  business.  It  would  then  follow  the  defend- 
ant is  under  no  obligation  to  the  plaintiff,  except  such  as  grew  out 
of  the  contract  entered  into  between  them.  But  it  does  not  follow 
that  all  the  duties  growing  out  of  the  contract  on  either  side  must 
have  been  expressly  stipulated  for.  On  the  contrary,  nothing  is 
better  settled  than  that  in  many  contracts,  especially  those  which 
establish  peculiar  relations  between  the  parties,  as,  those  of  confi- 
dence and  trust,  the  law  silently  annexes  certain  conditions,  and 
imposes  mutual  obligations  and  duties,  which  are  not  all,  in  express 
terms,  provided  for  in  the  contract,  yet,  in  contemplation  of  law, 
they  are  nevertheless  regarded  as  a  part  of  the  contract,  and  the 
non-performance  of  them  may,  in  an  action  on  the  contract,  be 
assigned  as  a  breach  thereof.  But  while  assumpsit  will  certainly 
lie  for  a  breach  of  these  implied  duties,  it  is  equally  well  settled 
that  case  will  lie  also.  Strictly  speaking,  these  duties  arise  ex  lege 
out  of  the  relation  created  by  the  contract.  As  familiar  illustrations 
of  this  class  of  contracts,  which  give  rise  to  an  almost  infinite  variety 
of  implied  duties  and  obligations,  may  be  mentioned  those  between 
client  and  attorney,  physician  and  patient,  carrier  and  shipper,  and, 


PUBLIC    CALLING.  gS3 

in  short,  every  species  of  bailment.  In  all  these  and  analogous 
cases  it  is  conceded  case  is  a  concurrent  remedy  with  assumpsit  for  a 
breach  of  the  implied  duties  growing  out  of  any  of  these  relations. 

Now,   when  we  look  at  the  contract  between  the   plaintiff  and 
defendant,  the  character  of  the  business  of  the  company,  the  subject 
matter  of  the  contract,  the  relations  of  the  parties  with  respect  to 
such  subject  matter,  and  all  the  circumstances  attending  the  transac- 
tion, can  it  be  doubted  for  a  moment,  that  the  contract  falls  within 
the  same  class  of  contracts  as  those  between  carrier  and  passenger, 
and  the  like?     Can  it  be  questioned  that  upon   assigning  the  two 
berths  to  the  plaintiff  upon  the  terms  which  he  agreed  to  and  offered 
to  comply  with,  and  which  the  company  agreed  to  accept,  the  con- 
tract thus  made  at  once  became  obligatory   and  binding   upon  the 
-parties,  and  that  it  established  a  special  relation  between  them,  such 
as  that  between  carrier  and  passenger,  and  the  like,  to  which  the 
law,    of    its    own    force,    annexed    certain    implied    obligations    and 
duties,    to  be  respectively  observed  and  performed   b}T  the  parties 
towards  each  other?     Clearly  not.     What  were  some  of  these  implied 
duties?     On  the  part  of  the  plaintiff,  he  impliedl}*  agreed  to  conduct 
himself  in  a  cpiiet  and  orderly  manner,  to  take  due  and  proper  care 
of  the  berths  while  in  his  possession,  and  surrender  the  same  at  the 
end  of  his  journey  in  as  good  condition  as  when  assigned  to  him, 
necessary  wear  excepted.     On  the    part  of  the  company  it  was  im- 
pliedly stipulated  that  it  would  use  all  reasonable  and  proper  means 
within  its  power  to  preserve  order  and  decorum  in  the  sleeper  dur- 
ing the  journey,  and  especially  during  sleeping  hours,  and  that  it 
would  furnish  and  keep  on  hand  such  supplies  and  conveniences  as 
are  usually  found  in  like  sleepers,  and  are  necessary  to  the  health 
and  comfort  of  passengers,  and  also  that  it  would  permit  the  plain- 
tiff to  quietly  and  peaceably  occupy  the  berth  engaged  by  him  dur- 
ing the  journey,  and  not  expel  him  or  his  wife  from  the  car  or  such 
berth,  or    otherwise   attempt   to   interfere  with  its   proper  use  and 
enjoyment,  so  long  as  he  and  his  wife  demeaned  themselves  with 
m-opriety.     Xone  of  these  duties  were,  or  ever  are,  expressly  stipu- 
lated for  by  one  engaging  a  sleeping  berth,  for  the  simple  reason  the 
law  always  implies  them  from  the  relation  of  the  parties  created 
by  the  contract  securing  a  berth ;  and  for  a  breach  of  any  of  these 
implied  duties    it   is   clear,  as   already  shown,  case   is   a  concurrent 
remedy  with  assumpsit,  and,  indeed,  is  always  the  more  appropriate 
remedy  where  matters  of  aggravation  are  relied  on  as  an  element  of 
damage.     It  is  clear,  in  the  present  case,  the  defendant  utterly  dis- 
regarded its  duty  in  not  making  up  the  berth  of  the   plaintiff,  and 
in  not  permitting  him  and  his  wife  to  occupy  it  through  the  night, 
and  in  expelling  them  from  the  car,  and  for  this  it  must  be  held 
liable. 

The  view  here  expressed  is  believed  to  be  in  consonance  with  the 
general  principles  of  the  law,  and  is  clearly  sustained  by  some   of 


884  CARRIERS    OF    PASSENGERS. 

the  best-considered  cases,  both  English  and  American.  Burnett  v. 
Lynch,  5  Barn.  &  Cress.  589;  11  Eng.  Com.  Law,  597;  Hancock  v. 
Coffin,  21  Eng.  Com.  Law,  318;  Dickson  v.  Clifton,  2  Wils.  319; 
Boorman  v.  Brown,  3  Adol.  &  E.  (N.  S.)  525.  In  this  last  case, 
Chief  Justice  Tindal,  in  delivering  the  judgment  in  the  Exchequer 
Chamber,  entered  into  an  extended  review  of  the  authorities,  and  in 
summing  up  used  this  language:  "The  principle  in  all  these  cases 
would  seem  to  be,  that  the  contract  creates  a  duty,  and  the  neglect 
to  perform  that  duty,  or  the  nonfeasance,  is  a  ground  of  action  upon 
a  tort,"  —  and  this  case  was  affirmed  on  appeal  to  the  House  of 
Lords.  11  CI.  &  Fin.  44.  In  this  case,  Lord  Campbell,  in  deliver- 
ing the  judgment  in  the  House  of  Lords,  says :  "  I  think  the  judg- 
ment of  the  Court  of  Exchequer  Chamber  is  right,  for  you  cannot 
confine  the  right  of  recovery  merely  to  those  cases  where  there  is  an 
employment  without  any  special  contract.  But  wherever  there  is  a 
contract,  and  something  to  be  done  in  the  course  of  the  employment 
which  is  the  subject  of  that  contract,  if  there  is  a  breach  of  the  duty 
in  the  course  of  that  employment  the  plaintiff  may  recover,  either 
m  tort  or  in  contract."  This,  subject  to  the  limitation  hereafter  to 
be  stated,  we  regard  as  the  true  rule  on  the  subject. 

It  is  often,  and  indeed  generally,  stated,  the  action  lies  only  for 
the  breach  of  the  common  law  duty,  and  this  we  believe  to  be 
strictly  true;  yeb  there  is  some  confusion  in  the  cases  as  to  what  is 
meant  by  a  common  law  duty,  growing  out  of  the  fact  that  it  some- 
times arises  without  the  intervention  of  a  contract  and  sometimes 
with  it,  and  in  the  latter  case  it  is  often  said,  as  in  the  case  last 
cited,  "the  contract  creates  the  duty,"  and  while  this  is  true  and 
accurate  enough  in  a  certain  sense,  yet  when  we  attempt  to  define 
with  precision  just  when  the  action  will  lie  and  when  it  will  not, 
the  statement  is  not  sufficiently  definite,  for  it  must  be  conceded  the 
law  makes  it  the  duty  of  every  one  to  perform  his  contract,  and  it  is 
clear  case  will  not  lie  for  the  breach  of  every  duty  created  by  con- 
tract. If  one  contracts  to  deliver  to  another  a  load  of  wood,  or  pay 
a  specific  sum  of  money  on  a  given  day,  and  fails  to  do  so,  an  action 
on  the  contract  alone  will  lie,  — and  yet  it  is  manifest,  in  the  case 
supposed,  there  has  been  a  breach  of  duty  created  by  the  contract. 
We  think  it  more  accurate,  therefore,  to  say  that  case  lies  only  for 
the  breach  of  such  duties  as  the  law  implies  from  the  existing  rela- 
tions of  the  parties,  whether  such  relations  have  been  established 
with  or  without  the  aid  of  a  contract;  but  if  created  by  contract,  it 
is  no  objection  to  the  action  that  the  performance  of  the  duty  in 
question  has  been  expressly  stipulated  for,  if  it  would  have  existed 
by  reason  of  such  relations  without  such  stipulation.  This  is  well 
illustrated  by  the  case  put  in  the  early  part  of  this  opinion,  where 
B  let  his  horse  to  A,  to  be  kept  at  a  stipulated  price  per  day,  and 
returned  on  demand.  Now,  in  that  case,  by  the  mere  delivery  of 
the  horse,  to  be  kept  at  the  price  agreed  upon,  the  law  implied  or 


PUBLIC    CALLING. 

imposed  the  duty  of  returning  him*  upon  demand,  without  any  agree- 
ment to  that  effect,  and  the  duty  being  thus  implied  by  law,  inde- 
pendently of  the  express  stipulation  for  its  performance,  case  clearly 
would  lie  for  its  breach. 

The  general  principle  seems  to  be  this:  Where  the  duty  for  whose 
breach  the  action  is  brought  would  not  be  implied  by  law  by  reason 
of  the  relations  of  the  parties,  whether  such  relations  arose  out  of 
a  contract  or  not,  and  its  existence  depends  solely  upon  the  fact  that 
it  has  been  expressly  stipulated  for,  the  remedy  is  in  contract,  and 
not  in  tort,  —  when  otherwise,  case  is  an  appropriate  remedy.  Of 
course,  assumpsit  is  a  concurrent  remedy  with  case,  in  all  cases  where 
there  is  an  express  or  implied  contract. 

The  judgment  of  the  Appellate  Court  is  reversed,  and  the  cause 
remanded,  with  directions  to  that  court  to  reverse  the  judgment  of 
the  Circuit  Court,  and  remand  the  cause  for  further  proceedings  not 
inconsistent  with  the  views  here  expressed. 


THE   D.    E.    MARTIN". 
11  Blatchf.  (U.  S.  C.  C)  233.     1873. 

Hunt,  J.  On  a  trial  before  the  district  judge,  the  libellant,  David 
F.  Barney,  recovered  the  sum  of  f  1000  as  his  damages  for  ejecting 
him  from  the  steamboat  "D.  R.  Martin,"  on  the  morning  of  October 
23,  1871.  On  an  application  subsequently  made  to  him,  the  dis- 
trict judge  reduced  the  recovery  to  the  sum  of  f  500.  A  careful 
perusal  of  all  the  testimony  satisfies  me  that  the  libellant  was  pur- 
suing his  business  as  an  express  agent  on  board  of  the  boat,  that  he 
persisted  in  it  against  the  remonstrance  of  the  claimant,  and  that  it 
was  to  prevent  the  transaction  of  that  business  by  him  on  board  of 
the  boat  that  he  was  ejected  therefrom  by  the  claimant. 

The  steamboat  company  owning  this  vessel  were  common  carriers 
between  Huntington  and  New  York.  They  were  bound  to  trans- 
port every  passenger  presenting  himself  for  transportation,  who  was 
in  a  fit  condition  to  travel  by  such  conveyance.  They  were  bound, 
also,  to  carry  all  freight  presented  to  them  in  a  reasonable  time 
before  their  hours  of  starting.  The  capacity  of  their  accommoda- 
tion was  the  only  limit  to  their  obligation.  A  public  conveyance  of 
this  character  is  not,  however,  intended  as  a  place  for  the  transac- 
tion of  the  business  of  the  passengers.  The  suitable  carriage  of 
persons  or  property  is  the  only  duty  of  the  common  carrier.  A 
steamboat  company  or  a  railroad  company  is  not  bound  to  furnish 
travelling  conveniences  for  those  who  wish  to  engage  on  their 
vehicles  in  the  business  of  selling  books,  papers,  or  articles  of  food, 


886  CARRIERS    OF   PASSENGERS. 

or  in  the  business  of  receiving  arid  distributing  parcels  or'baggage, 
nor  to  permit  the  transaction  of  this  business  in  their  vehicles,  when 
it  interferes  with  their  own  interests.  If  a  profit  may  arise  from 
such  business,  the  benefit  of  it  belongs  to  the  company,  and  they 
are  entitled  to  the  exclusive  use  of  their  vehicles  for  such  purposes. 
This  seems  to  be  clear  both  upon  principle  and  authority.  Story 
on  Bailm.,  §  591a;  Jencks  v.  Coleman,  2  Sumn.,  221  [891]  ;  Burgess 
v.  Clements,  4  Maule  &  S.,  306;  Fell  v.  Knight,  8  Mees.  &  W.,269; 
Commonwealth  v.  Power,  1  Am.  R'y  Cas.,  389.  These  cases  show 
that  the  principle  thus  laid  down  is  true  as  a  general  rule.  The  case 
of  The  New  Jersey  Steam  Xav.  Co.  v.  Merchants'  Bank,  6  How., 
344,  shows  that  it  is  especially  applicable  to  those  seeking  to  do  an 
express  business  on  such  conveyances.  It  is  there  held,  in  sub- 
stance, that  the  carrier  is  liable  to  the  owner  for  all  the  goods 
shipped  on  a  public  conveyance  by  an  express  company,  without 
regard  to  any  contract  to  the  contrary  between  the  carrier  and  the 
express  company.  Although  the  carrier  may  have  no  custody  or 
control  of  the  goods,  he  is  liable  to  the  owner  in  case  of  loss  if  he 
allows  them  to  be  brought  on  board.  It  is  the  simplest  justice  that 
he  should  be  permitted  to  protect  himself  by  preventing  their  being 
brought  on  board  by  those  having  them  in  charge.  This  rule  would 
not  exclude  the  transmission,  as  freight,  of  any  goods  or  property 
which  the  owners  or  agents  should  choose  to  place  under  the  care 
and  control  of  the  carrier. 

That  persons  other  than  the  libellant  carried  a  carpet-bag  without 
charge,  or  that  such  bag  occasionally  contained  articles  forwarded 
by  a  neighbor  or  procured  for  a  friend,  does  not  affect  the  carrier's 
right.  The  cases  where  this  was  proved  to  have  been  done  were 
rare  and  exceptional,  and  do  not  appear  to  have  been  known  to  the 
carrier,  nor  does  it  appear  that  any  compensation  was  paid  to  the 
agent.  They  were  neighborly  and  friendly  services,  such  as  people 
in  the  country  are  accustomed  to  render  for  each  other.  But,  if  the 
service  and  the  business  had  been  precisely  like  that  of  the  libellant, 
the  rule  would  have  been  the  same.  The  rights  of  the  carrier  in 
respect  to  A  are  not  gone  or  impaired  for  the  reason  that  he  waives 
his  rights  in  respect  to  B,  especially  if  A  be  notified  that  the  rights 
are  insisted  upon  as  to  him.  If  Mr.  Prime  was  permitted  to  carry 
a  bag  without  charge  on  the  claimant's  boat,  or  to  do  a  limited 
express  business  thereon,  this  gave  the  libellant  no  right  to  do  such 
business,  when  notified  by  the  carrier  that  he  must  refrain  from 
it.  A  carrier,  like  all  others,  may  bestow  favor  where  he  chooses. 
Rights,  not  favors,  are  the  subject  of  demand  by  all  parties  indis- 
criminately. The  incidental  benefit  arising  from  the  transaction  of 
such  business  as  may  be  done  on  board  of  a  boat  or  on  a  car  belongs 
to  the  carrier,  and  he  can  allow  the  privilege  to  one  and  exclude 
from  it  another,  at  his  pleasure.  A  steamboat  company,  or  a  rail- 
road company,  may  well  allow  an  individual  to  open  a  restaurant 


PUBLIC    CALLING. 

or  a  bar  on  their  conveyance,  or  to  do  the  business  of  boot  blacking, 
or  of  peddling  books  and  papers.  This  individual  is  under  their 
control,  subject  to  their  regulation,  and  the  business  interferes  in 
no  respect  with  the  orderly  management  of  the  vehicle.  But,  if 
every  one  that  thinks  fit  can  enter  upon  the  performance  of  these 
duties,  the  control  of  the  vehicle  and  its  good  management  would 
soon  be  at  an  end.  The  cars  or  boats  are  those  of  the  carrier,  and, 
I  think,  exclusively  his,  for  this  purpose.  The  sale  or  leasing  of 
these  rights  to  individuals,  and  the  exclusion  of  others  therefrom, 
come  under  the  head  of  reasonable  regulations,  which  the  courts 
are  bound  to  enforce.  The  right  of  transportation,  which  belongs 
to  all  who  desire  it,  does  not  carry  with  it  a  right  of  traffic  or  of 
business. 

It  is  insisted  that  the  libellant  could  not  legally  be  ejected  from 
the  boat  for  any  offence,  or  violation  of  rules,  committed  on  a  former 
occasion.  It  is  insisted,  also,  that,  having  purchased  a  ticket  from 
the  agent  of  the  company,  his  right  to  a  passage  was  perfect. 
Neither  of  these  propositions  is  correct.  In  Commonwealth  v. 
Power,  7  Mete,  596,  the  passenger  had  actually  purchased  his 
ticket,  and  the  Chief  Justice  says,  "If  he,  Hall,  gave  no  notice  of 
his  intention  to  enter  the  car  as  a  passenger,  and  of  his  right  to  do 
so,  and  if  Power  believed  that  his  intention  was  to  violate  a  reason- 
able subsisting  regulation,  then  he  and  his  assistants  were  justified 
in  forcibly  removing  him  from  the  depot."  In  Pearson  v.  Duane, 
4  Wall.,  605,  Mr.  Justice  Davis,  in  giving  the  opinion  of  the  court, 
held  the  expulsion  of  Duane  to  have  been  illegal,  because  it  was 
delayed  until  the  vessel  had  sailed.  "But  this  refusal,"  he  says, 
"should  have  preceded  the  sailing  of  the  ship.  After  the  ship  had 
got  to  sea,  it  was  too  late  to  take  exceptions  to  the  character  of  a 
passenger,  or  to  his  peculiar  position,  provided  he  violated  no  in- 
flexible rule  of  the  boat  in  getting  on  board."  The  libellant,  in  this 
case,  refused  to  give  any  intimation  that  he  would  abandon  his  trade 
on  board  the  vessel.  The  steamboat  company,  it  is  evident,  were 
quite  willing  to  carry  him  and  his  baggage,  and  objected  only  to  his 
persistent  attempts  to  continue  his  traffic  on  their  boat.  He  insisted 
that  he  had  the  right  to  pursue  it,  and  the  company  resorted  to  the 
only  means  in  their  power  to  compel  its  abandonment,  to  wit,  his 
removal  from  the  boat.  This  was  done  with  no  unnecessary  force, 
and  was  accompanied  by  no  indignity.  In  my  opinion,  the  removal 
was  justified,  and  the  decree  must  be  reversed. 


888  CARRIERS    OF    PASSENGERS. 


THURSTON   v.    UNION   PACIFIC   R.    CO. 
4  Dillon  (U.  S.  C.  C),  321.     1877. 

It  was  alleged,  and  not  denied,  that  plaintiff  had  purchased  from 
the  road,  for  fifty  cents,  a  ticket  for  crossing  the  river  on  the  trans- 
fer train,  and  that  when  the  train  was  about  starting  he  attempted 
to  board  it,  but  was  prevented.  He  also  purchased,  for  ninety 
cents,  from  the  company  a  ticket  good  on  another  road,  but  was 
forcibly  ejected  from  the  train,  and  obliged  to  remain  in  Omaha 
several  days  before  he  could  safely  get  away,  for  which  he  asked 
$5000  damages.  The  defendant  admitted  that  the  necessary  force 
(but  no  more)  was  used  to  prevent  his  entering  the  train.  It  was 
claimed  that  he  had  been  for  years  a  notorious  gambler,  —  a"inonte- 
man,"  so-called,  — and  was  then  engaged  in  travelling  on  the  defend- 
ant's road  for  the  purpose  of  plying  that  calling,  and  was  about  to 
enter  the  train  for  that  purpose.  This  the  plaintiff  denied.  The 
question  was,  whether  the  defendant  has  the  right  to  exclude  gam- 
blers from  its  trains?  Upon  this  point  the  charge  of  the  court  is 
given  below. 

Dundy,  J.  The  railway  company  is  bound,  as  a  common  carrier, 
when  not  over-crowded,  to  take  all  proper  persons  who  may  apply 
for  transportation  over  its  line,  on  their  complying  with  all  reason- 
able rules  of  the  company.  But  it  is  not  bound  to  carry  all  persons 
at  all  times,  or  it  might  be  utterly  unable  to  protect  itself  from  ruin. 
It  would  not  be  obliged  to  carry  one  whose  ostensible  business  might 
be  to  injure  the  line;  one  fleeing  from  justice;  one  going  upon  the 
train  to  assault  a  passenger,  commit  larceny  or  robbery,  or  for  inter- 
fering with  the  proper  regulations  of  the  company,  or  for  gambling 
in  any  form,  or  committing  any  crime;  nor  is  it  bound  to  carry  per- 
sons infected  with  contagious  diseases,  to  the  danger  of  other  pas- 
sengers. The  person  must  be  upon  lawful  and  legitimate  business. 
Hence  defendant  is  not  bound  to  carry  persons  who  travel  for  the 
purpose  of  gambling.  As  gambling  is  a  crime  under  the  State  laws, 
it  is  not  even  necessary  for  the  company  to  have  a  rule  against  it. 
It  is  not  bound  to  furnish  facilities  for  carrying  out  an  unlawful 
purpose.  Necessary  force  may  be  used  to  prevent  gamblers  from 
entering  trains,  and  if  found  on  them  engaged  in  gambling,  and 
refusing  to  desist,  they  may  be  forcibly  expelled. 

Whether  the  plaintiff  was  going  upon  the  train  for  gambling  pur- 
poses, or  whether,  from  his  previous  course,  the  defendant  might 
reasonably  infer  that  such  was  his  purpose,  is  a  question  of  fact  for 
the  jury.  If  they  find  such  to  have  been  the  case,  they  cannot  give 
judgment  for  any  more  than  the  actual  damage  sustained. 


PUBLIC   CALLING.  889 

After  the  ticket  is  purchased  and  paid  for,  the  railroad  company 
can  only  avoid  compliance  with  its  part  of  the  contract  by  the  exis- 
tence of  some  legal  cause  or  condition  which  will  excuse  it.  The 
company  should,  in  the  first  case,  refuse  to  sell  tickets  to  persons 
whom  it  desires  and  has  the  right  to  exclude  from  the  cars,  and 
should  exclude  them  if  they  attempt  to  enter  the  car  without  tickets. 

If  the  ticket  has  been  inadvertently  sold  to  such  person  and  the 
company  desires  to  rescind  the  contract  for  transportation,  it  should 
tender  the  return  of  the  money  paid  for  the  ticket.  If  it  does  not 
do  this,  plaintiff  may,  under  any  circumstances,  recover  the  amount 
of  his  actual  damage,  viz. :  what  he  paid  for  the  ticket,  and,  perhaps, 
necessary  expenses  of  his  detention. 

In  this  case  the  jury  rendered  a  verdict  for  actual  damages  ($1.74) 
and  costs,  the  company  not  having  tendered  the  money. 

Judgment  on  verdict* 


VINTON  v.   MIDDLESEX   E.    CO. 

11  Allen  (Mass.),  304.     1865. 

Tort  against  a  street  railway  corporation  to  recover  damages  for 
the  act  of  one  of  their  conductors  in  expelling  the  plaintiff  from  a 
car  in  which  he  was  a  passenger. 

At  the  trial  in  the  Superior  Court,  before  Morton,  J.,  it  appeared 
that  the  plaintiff  was  a  passenger  in  one  of  the  defendant's  cars, 
and  was  expelled  by  the  conductor.  There  was  no  evidence  that  any 
rule  or  regulation  had  ever  been  adopted  by  the  defendants,  authoriz- 
ing their  conductors  to  expel  passengers  for  any  cause.  The  defend- 
ants introduced  evidence  tending  to  show  that  at  the  time  of  the 
expulsion  the  plaintiff  was  intoxicated,  and  used  loud,  boisterous, 
profane  and  indecent  language  towards  the  conductor  and  attempted 
to  strike  him,  and  that  he  was  therefore  expelled.  But  the  evi- 
dence on  this  point  was  conflicting.  There  were  four  women  in  the 
car  as  passengers. 

The  defendants  requested  the  court  to  instruct  the  jury,  amongst 
other  things,  as  follows:  "If  the  jury  find  that  the  plaintiff  was  in 
the  defendants'  car  in  a  state  of  intoxication,  so  as  reasonabl; 
induce  the  conductor  to  believe  that  the  plaintiff  would  be  an  annoy- 
ance to  the  passengers,  or  if  the  plaintiff  so  conducted,  or  used  bois- 
terous, profane,  or  indecent  language,  naturally  calculated  to  annoy 
the  passengers,  and  persisted  in  so  doing  after  being  requested  to  be 
quiet,  the  conductor  would  be  justified  in  removing  him,  using  no 
more  violence  than  was  necessary  to  affect  his  removal." 

The  judge  declined  so  to  rule,  and  instructed  the  jury  as  follows: 
"  If  the  plaintiff,  by  reason  of  intoxication  or  otherwise,  was,  in  act 


890  CARRIERS    OF   PASSENGERS. 

or  language,  offensive  or  annoying  to  the  passengers,  the  conductor 
had  a  right  to  remove  him,  using  reasonable  force.  If  the  conduc- 
tor, in  the  performance  of  his  service  as  conductor,  forcibly  removed 
the  plaintiff  without  justifiable  cause,  or  if,  having  justifiable  cause, 
he  used  unnecessary  and  unreasonable  violence,  in  kind  or  degree, 
in  removing  him,  the  defendants  are  liable." 

The  jury  returned  a  verdict  for  the  plaintiff,  with  $1000  damages; 
and  the  defendants  alleged  exceptions. 

Bigelow,  C.  J.  By  the  instructions  under  which  this  case  was 
submitted  to  the  jury,  in  connection  with  the  refusal  of  those  which 
were  asked  for  by  the  defendants,  we  are  led  to  infer  that  the  learned 
judge  who  presided  at  the  trial  was  of  opinion  that  the  defendants 
and  their  duly  authorized  agents  had  no  legal  power  or  authority  to 
exclude  or  expel  from  the  vehicles  under  their  charge  a  passenger 
whose  condition  and  conduct  were  such  as  to  give  a  reasonable  ground 
of  belief  that  his  presence  and  continuance  in  the  vehicle  would 
create  inconvenience  and  disturbance  and  cause  discomfort  and 
annoyance  to  other  passengers.  Such  certainly  were  the  result  and 
effect  of  the  rule  of  law  laid  down  for  the  guidance  of  the  jury  at 
the  trial.  We  are  constrained  to  say  that  we  know  of  no  warrant, 
either  in  principle  or  authority,  for  putting  any  such  limitation  on 
the  right  and  authority  of  the  defendants  as  common  carriers  of 
passengers,  or  of  their  servants  acting  within  the  scope  of  their 
employment. 

It  being  conceded,  as  it  must  be  under  adjudicated  cases,  that  the 
defendants,  as  incident  to  the  business  which  they  carried  on,  not 
only  had  the  power  but  were  bound  to  take  all  reasonable  and  proper 
means  to  insure  the  safety  and  provide  for  the  comfort  and  con- 
venience of  passengers,  it  follows  that  they  had  a  right,  in  the  exer- 
cise of  this  authority  and  duty,  to  repress  and  prohibit  all  disorderly 
conduct  in  their  vehicles,  and  to  expel  or  exclude  therefrom  any 
person  whose  conduct  or  condition  was  such  as  to  render  acts  of 
impropriety,  rudeness,  indecency  or  disturbance,  either  inevitable 
or  probable.  Certainly  the  conductor  in  charge  of  the  vehicle  was 
not  bound  to  wait  until  some  overt  act  of  violence,  profaneness  or 
other  misconduct  had  been  committed,  to  the  inconvenience  or 
annoyance  of  other  passengers,  before  exercising  his  authority  to 
exclude  or  expel  the  offender.  The  right  and  power  of  the  defend- 
ants and  their  servants  to  prevent  the  occurrence  of  improper  and 
disorderly  conduct  in  a  public  vehicle  is  quite  as  essential  and  impor- 
tant as  the  authority  to  stop  a  disturbance  or  repress  acts  of  violence 
or  breaches  of  decorum  after  they  have  been  committed,  and  the 
mischief  of  annoyance  and  disturbance  have  been  done. 

Indeed,  if  the  rule  laid  down  at  the  trial  be  correct,  then  it  would 
follow  that  passengers  in  public  vehicles  must  be  subjected  to  a  cer- 
tain amount  or  degree  of  discomfort  or  insult  from  evil  disposed 
persons  before  the  right  to  expel  them  would  accrue  to  a  carrier  or 


PUBLIC    CALLING.  89] 

his  servant.  There  would  be  no  authority  to  restrain  or  prevent 
profaneness,  indecency,  or  other  breaches  of  decorum  in  speech  or 
behavior,  until  it  had  continued  long  enough  to  become  manifest  to 
the  eyes  or  ears  of  other  passengers.  It  is  obvious  that  any  such 
restriction  on  the  operation  of  the  rule  of  law  would  greatly  diminish 
its  practical  value.  Nor  can  we  see  that  there  is  any  good  reason 
for  giving  so  narrow  a  scope  to  the  authority  of  carriers  of  passen- 
gers and  their  agents  as  was  indicated  in  the  rulings  at  the  trial. 
The  only  objection  suggested  is,  that  it  is  liable  to  abuse  and  may 
become  the  instrument  of  oppression.  But  the  same  is  true  of  many 
other  salutary  rules  of  law.  The  safeguard  against  an  unjust  or 
unauthorized  use  of  the  power  is  to  be  found  in  the  consideration 
that  it  can  never  be  properly  exercised  except  in  cases  where  it  can 
be  satisfactorily  proved  that  the  condition  or  conduct  of  a  person 
was  such  as  to  render  it  reasonably  certain  that  he  would  occasion 
discomfort  or  annoyance  to  other  passengers,  if  he  was  admitted 
into  a  public  vehicle  or  allowed  longer  to  remain  within  it. 

Exceptions  sustained. 


JENCKS   v.    COLEMAN. 

2  Sumner  (U.  S.  C.  C),  221.     1835. 

Case  for  refusing  to  take  the  plaintiff  on  board  of  the  steamboat 
"Benjamin  Franklin"  (of  which  the  defendant  was  commander)  as 
a  passenger  from  Providence  to  Newport.  Plea,  the  general  issue. 
The  facts,  as  they  appeared  at  the  trial,  were  substantially  as  fol- 
lows :  That  the  plaintiff  was  the  agent  of  the  Tremont  line  of  stages, 
running  between  Providence  and  Boston;  that  his  object  was  to  take 
passage  in  the  boat  to  Newport,  and  then  go  on  board  the  steamboat 
"President,"  on  her  passage  from  New  York  to  Providence,  on 
the  next  morning,  for  the  purpose  of  soliciting  passengers  for  the 
Tremont  line  of  stages  for  Boston.  This  the  proprietors  of  the 
"President"  and  "Benjamin  Franklin"  had  prohibited,  and  had 
given  notice  that  they  would  not  permit  agents  of  that  line  of  stages 
to  take  passage  in  their  boats  for  that  purpose.  The  reason  assigned 
for  such  prohibition  was,  that  it  was  important  for  the  proprietors 
of  the  steamboats,  that  the  passengers  from  their  boats,  for  Boston, 
should  find,  at  all  times,  on  their  arrival  at  Providence,  an  imme- 
diate and  expeditious  passage  to  Boston.  To  insure  this  object,  the 
Citizens'  Coach  Company  had  contracted  with  the  steamboat  pro- 
prietors to  carry  all  the  passengers  who  wished  to  go,  in  good  car- 
riages, at  reasonable  expedition  and  prices;  and  the  commanders 
of  the  steamboats  were  to  receive  the  fare,  and  make  out  way-bills 
of   the  passengers,  for  the  Citizens'  Coach  Company.     This   they 


892  CARRIERS    OF   TASSENGERS. 

continued  to  perform.  And,  in  order  to  counteract  the  effect  of  this 
contract, —  which  had  been  offered  the  Tremont  line,  and  declined, 
—  that  line  placed  an  agent  on  board  the  boats,  to  solicit  passengers 
for  their  coaches;  and,  on  being  complained  to  by  the  Citizens' 
Coach  Company,  the  proprietors  of  the  steamboats  interdicted  such 
agents  from  coming  on  board  their  boats.  And  in  this  instance 
refused  to  permit  the  plaintiff  to  take  passage  in  the  boat  for 
Newport,  though  he  tendered  the  customary  fare. 

Story,  Circuit  Justice  (charging  jury).  There  is  no  doubt  that 
this  steamboat  is  a  common  carrier  of  passengers  for  hire;  and, 
therefore,  the  defendant,  as  commander,  was  bound  to  take  the 
plaintiff  as  a  passenger  on  board,  if  he  had  suitable  accommoda- 
tions, and  there  was  no  reasonable  objection  to  the  character  or 
conduct  of  the  plaintiff.  The  question  then  really  resolves  itself 
into  the  mere  consideration,  whether  there  was,  in  the  present  case, 
upon  the  facts,  a  reasonable  ground  for  the  refusal.  The  right  of 
passengers  to  a  passage  on  board  of  a  steamboat  is  not  an  unlimited 
right.  But  it  is  subject  to  such  reasonable  regulations  as  the  pro- 
prietors may  prescribe,  for  the  due  accommodation  of  passengers 
and  for  the  due  arrangements  of  their  business.  The  proprietors 
have  not  only  this  right,  but  the  farther  right  to  consult  and  pro- 
vide for  their  own  interests  in  the  management  of  such  boats,  as  a 
common  incident  to  their  right  of  property.  They  are  not  bound  to 
admit  passengers  on  board,  who  refuse  to  obey  the  reasonable  regu- 
lations of  the  boat,  or  who  are  guilty  of  gross  and  vulgar  habits  of 
conduct;  or  who  make  disturbances  on  board;  or  whose  characters 
are  doubtful,  or  dissolute,  or  suspicious;  and,  a  fortiori,  whose  char- 
acters are  unequivocally  bad.  Nor  are  they  bound  to  admit  pas- 
sengers on  board  whose  object  is  to  interfere  with  the  interest  or 
patronage  of  the  proprietors,  so  as  to  make  the  business  less  lucra- 
tive to  them.  While,  therefore,  I  agree  that  steamboat  proprietors 
holding  themselves  out  as  common  carriers  are  bound  to  receive 
passengers  on  board  under  ordinary  circumstances,  I  at  the  same 
time  insist  that  they  may  refuse  to  receive  them,  if  there  be  a  rea- 
sonable objection.  And  as  passengers  are  bound  to  obey  the  orders 
and  regulations  of  the  proprietors,  unless  they  are  oppressive  and 
grossly  unreasonable,  whoever  goes  on  board,  under  ordinary  cir- 
cumstances, impliedly  contracts  to  obey  such  regulations;  and  may 
justly  be  refused  a  passage,  if  he  wilfully  resists  or  violates  them. 

Now,  what  are  the  circumstances  of  the  present  case?  Jencks, 
the  plaintiff,  was  at  the  time  the  known  agent  of  the  Tremont  line 
of  stage-coaches.  The  proprietors  of  the  "  Benjamin  Franklin  "  had, 
as  he  well  knew,  entered  into  a  contract  with  the  owners  of  another 
line  (the  Citizens'  Stage  Coach  Company)  to  bring  passengers  from 
Boston  to  Providence,  and  to  carry  passengers  from  Providence 
to  Boston,  in  connection  with  and  to  meet  the  steamboats  plying 
between  New  York  and  Providence,  and  belonging  to  the  proprietors 


PUBLIC   CALLING.  X'i:; 

of  the  ''Franklin."  Such  a  contract  was  important,  if  not  indispen- 
sable, to  secure  uniformity,  punctuality,  and  certainty  in  the  car- 
riage of  passengers  on  both  routes,  and  might  be  material  to  the 
interests  of  the  proprietors  of  those  steamboats.  Jencks  had  been 
in  the  habit  of  coming  on  board  these  steamboats  at  Providence  and 
going  therein  to  Newport;  and  commonly  of  coming  on  board  at 
Newport,  and  going  to  Providence,  avowedly  for  the  purpose  of 
soliciting  passengers  for  the  Tremont  line,  and  thus  interfering  with 
the  patronage  intended  to  be  secured  to  the  Citizens'  line  by  the 
arrangements  made  with  the  steamboat  proprietors.  He  had  the 
fullest  notice  that  the  steamboat  proprietors  had  forbidden  any  per- 
son to  come  on  board  for  such  purposes,  as  incompatible  with  their 
interests.  A.t  the  time  when  he  came  on  board,  as  in  the  declara- 
tion mentioned,  there  was  every  reason  to  presume  that  he  was  on 
board  for  his  ordinary  purposes  as  agent.  It  has  been  said  that  the 
proprietors  had  no  right  to  inquire  into  his  intent  or  motives.  I 
cannot  admit  that  point.  I  think  that  the  proprietors  had  a  right 
to  inquire  into  such  intent  and  motives;  and  to  act  upon  the  reason- 
able presumptions,  which  arose  in  regard  to  them.  Suppose  a 
known  or  suspected  thief  were  to  come  on  board;  would  they  not 
have  a  right  to  refuse  him  a  passage?  Might  they  not  justly  act 
upon  the  presumption  that  his  object  was  unlawful?  Suppose  a  per- 
son were  to  come  on  board  who  was  habitually  drunk,  and  gross 
in  his  behavior,  and  obscene  in  his  language,  so  as  to  be  a  public 
annoyance;  might  not  the  proprietors  refuse  to  allow  him  a  pas- 
sage? I  think  they  might,  upon  the  just  presumption  of  what  his 
conduct  would  be. 

It  has  been  said  by  the  learned  counsel  for  the  plaintiff  that 
Jencks  was  going  from  Providence  to  Newport,  and  not  coming  back; 
and  that  in  going  down  there  would,  from  the  very  nature  of  the 
object,  be  no  solicitation  of  passengers.  That  does  not  necessarily 
follow;  for  he  might  be  engaged  in  making  preliminary  engage- 
ments for  the  return  of  some  of  them  back  again.  But,  supposing 
there  were  no  such  solicitations,  actual  or  intended,  I  do  not  think 
the  case  is  essentially  changed.  I  think  that  the  proprietors  of  the 
steamboats  were  not  bound  to  take  a  passenger  from  Providence  to 
Newport  whose  object  was,  as  a  stationed  agent  of  the  Tremont  line, 
thereby  to  acquire  facilities,  to  enable  him  successfully  to  interfere 
with  the  interests  of  these  proprietors,  or  to  do  them  an  injury  in 
their  business.  Let  us  take  the  case  of  a  ferryman.  Is  he  bound  to 
carry  a  passenger  across  a  ferry  whose  object  is  to  commit  a  trespa  >s 
upon  his  lands?  A  case  still  more  strongly  in  point,  and  which,  in 
my  judgment,  completely  meets  the  present,  is  that  of  an  innkeeper. 
Suppose  passengers  are  accustomed  to  breakfast,  or  dine,  or  sup  at 
his  house;  and  an  agent  is  employed  by  a  rival  house,  at  the  dis- 
tance of  a  few  miles,  to  decoy  the  passengers  away,  the  moment 
they  arrive  at  the  inn;  is  the  innkeeper  bound  to  entertain  and  lodge 


894  CARRIERS    OF   PASSENGERS. 

such  agent,  and  thereby  enable  him  to  accomplish  the  very  objects 
of  his  mission,  to  the  injury  or  ruin  of  his  own  interests?  I  think 
not.  It  has  been  also  said  that  the  steamboat  proprietors  are  bound 
to  carry  passengers  only  between  Providence  and  New  York,  and 
not  to  transport  them  to  Boston.  Be  it  so,  that  they  are  not  abso- 
lutely bound.  Yet 'they  have  a  right  to  make  a  contract  for  this 
latter  purpose,  if  they  choose;  and  especially  if  it  will  facilitate 
the  transportation  of  passengers,  and  increase  the  patronage  of  their 
steamboats.  I  do  not  say  that  they  have  a  right  to  act  oppressively 
in  such  cases.  But,  certainly,  they  may  in  good  faith  make  such 
contracts  to  promote  their  own  as  well  as  the  public  interests, 

The  only  real  question,  then,  in  the  present  case,  is  whether  the 
conduct  of  the  steamboat  proprietors  has  been  reasonable  and  bona 
fide.  They  have  entered  into  a  contract  with  the  Citizens'  line  of 
coaches,  to  carry  all  the  passengers  to  and  from  Boston.  Is  this 
contract  reasonable  in  itself;  and  not  designed  to  create  an  oppres- 
sive and  mischievous  monopoly?  There  is  no  pretence  to  say  that 
any  passenger  in  the  steamboat  is  bound  to  go  to  or  from  Boston  in 
the  Citizens'  line.  He  may  act  as  he  pleases.  It  has  been  said  by 
the  learned  counsel  for  the  plaintiff  that  free  competition  is  best  for 
the  public.  But  that  is  not  the  question  here.  Men  may  reason- 
ably differ  from  each  other  on  that  point.  Neither  is  the  question 
here  whether  the  contract  with  the  Citizens'  line  was  indispensable 
or  absolutely  necessary  in  order  to  insure  the  carriage  of  passengers 
to  and  from  Boston.  But  the  true  question  is,  whether  the  contract 
is  reasonable  and  proper  in  itself,  and  entered  into  with  good  faith, 
and  not  for  the  purpose  of  an  oppressive  monopoly.  If  the  jury  find 
the  contract  to  be  reasonable  and  proper  in  itself,  and  not  oppres- 
sive, and  thej'-  believe  the  purpose  of  Jencks  in  going  on  board  was 
to  accomplish  the  objects  of  his  agency,  and  in  violation  of  the  reas- 
onable regulations  of  the  steamboat  proprietors,  then  their  verdict 
ought  to  be  for  the  defendant;  and  otherwise,  to  be  for  the  plaintiff. 


OLD   COLONY  E.    CO.    v.    TRIPP. 

147  Mass.  35.     1888. 

Tort  for  obstructing  the  station  grounds  of  the  plaintiff  at  Brock- 
ton.     At  the  trial  in  the  Superior  Court,  before  Thompson,  J.,  evi 
dence  was  introduced  tending  to  prove  the  following  facts. 

The  plaintiff  is  a  railroad  corporation,  with  all  the  powers  and 
subject  to  all  the  duties  of  such  corporations  in  this  Commonwealth, 
and  Brockton  is  one  of  the  largest  stations  upon  its  road.  It  had 
been  the  practice  of  the  defendant  and  other  owners  of  job  wagODS 


PUBLIC    CALLING.  895 

for   several   years  prior  to  August  1,  1886,  to  go  to  the  Brockton 
station  to  wait  for  trains,  and  to  ascertain  if  the  passengers  had  any 
baggage  or  other  merchandise  for  them  to  carry.     The  plaintiff,  on 
or  about  August,  1886,  made  a  contract  with  the  firm  of  Porter  and 
Sons,  of  Brockton,  to  provide  means  for  carrying  all  baggage  and 
merchandise  brought  by  incoming  passengers  to  such  places  in  the 
city  as  they  might  desire,  at  their  expense.     Afterwards,  the  plain- 
tiff, through  its  station  master  at  Brockton,  and  by  the  order  of  its 
general   manager,  and  also  of  its  division  superintendent,  but   not 
by  any  by-law  or  vote  of  its  directors  or  stockholders,  notified  the 
defendant  and  all  other  owners  of  job  wagons  not  to  come  upon  the 
plaintiff's  grounds  at  Brockton  to   solicit  baggage  or  merchandise 
from  incoming  passengers,  and  informed  them  of  the  contract  made 
with  Porter  and  Sons,  but  allowed  them,  however,  to  come  to  the 
station  to  deliver  such  bagagge  and  merchandise,  and  to  take  away 
such  as  they  might  have  previous  orders  for.     The  defendant  after 
receiving  this  notice  continued  to  come  upon  the  premises,  and  to 
solicit  baggage  and   merchandise  upon  the  platform  of  the  station 
from  passengers  upon  the  arrival  of  trains,  and  refused  to  depart 
therefrom  when  requested  by  the  plaintiff's  agents,  though  not  there 
to  deliver  baggage  or  merchandise  for  outgoing  passengers,  or  to 
take  it  away  upon  orders  received  elsewhere. 

Upon  these  facts,  the  judge  ordered  a  verdict  for  the  plaintiff,  and 
reported  the  case  for  the  determination  of  this  court.  If  the  verdict 
was  correct,  judgment  was  to  be  rendered  thereon ;  otherwise,  judg- 
ment was  to  be  entered  for  the  defendant. 

W.  Allex,  J.  Whatever  implied  license  the  defendant  may  have 
had  to  enter  the  plaintiff's  close  had  been  revoked  by  the  regula- 
tions made  by  the  plaintiff  for  the  management  of  its  business  and 
the  use  of  its  property  in  its  business.  The  defendant  entered  under 
a  claim  of  right,  and  can  justify  his  entry  only  by  showing  a  right 
superior  to  that  of  the  plaintiff.  The  plaintiff  has  all  the  rights  of 
an  owner  in  possession,  except  such  as  are  inconsistent  with  the 
public  use  for  which  it  holds  its  franchise;  that  is,  with  its  duties 
as  a  common  carrier  of  persons  and  merchandise.  As  concerns  the 
case  at  bar,  the  plaintiff  is  obliged  to  be  a  common  carrier  of  pas- 
sengers. It  is  its  duty  to  furnish  reasonable  facilities  and  accom- 
modations for  the  use  of  all  persons  who  seek  for  transporation  over 
its  road.  It  provided  its  depot  for  the  use  of  persons  who  were 
transported  on  its  cars  to  or  from  the  station,  and  holds  it  for  that 
use,  and  it  has  no  right  to  exclude  from  it  persons  seeking  access 
to  it  for  the  use  for  which  it  was  intended  and  is  maintained.  It 
can  subject  the  use  to  rules  and  regulations,  but  by  statute,  if  not 
by  common  law,  the  regulations  must  be  such  as  to  secure  reason- 
able and  equal  use  of  the  premises  to  all  having  such  right  to  use 
them.  See  Pub.  Sts.  c.  112,  §  188.  Fitchburg  Railroad  v.  Gage, 
12  Gray,  393.     Spofford  v.  Boston  &  Maine  Railroad,  128  Mass.  326 


896  CARRIERS    OF   PASSENGERS. 

The  station  was  a  passenger  station.  Passengers  taking  and  leav- 
ing the  cars  at  the  station,  and  persons  setting  down  passengers 
or  delivering  merchandise  or  baggage  for  transportation  from  the 
station,  or  taking  up  passengers  or  receiving  merchandise  that  had 
been  transported  to  the  station,  had  a  right  to  use  the  station  build- 
ings and  grounds,  superior  to  the  right  of  the  plaintiff  to  exclusive 
occupancy.  All  such  persons  had  business  with  the  plaintiff,  which 
it  was  bound  to  attend  to  in  the  place  and  manner  which  it  had  pro- 
vided for  all  who  had  like  business  with  it. 

The  defendant  was  allowed  to  use  the  depot  for  any  business  that 
he  had  with  the  plaintiff.  But  he  had  no  business  to  transact  with 
the  plaintiff.  He  had  no  merchandise  or  baggage  to  deliver  to  the 
plaintiff,  or  to  receive  from  it.  His  purpose  was  to  use  the  depot 
as  a  place  for  soliciting  contracts  with  incoming  passengers  for  the 
transportation  of  their  baggage.  The  railroad  company  may  be 
under  obligation  to  the  passenger  to  see  that  he  has  reasonable  facil- 
ities for  procuring  transportation  for  himself  and  his  baggage  from 
the  station  where  his  transit  ends.  What  conveniences  shall  be 
furnished  to  passengers  within  the  station  for  that  purpose  is  a 
matter  wholly  between  them  and  the  company.  The  defendant  is 
a  stranger  both  to  the  plaintiff  and  to  its  passengers,  and  can  claim 
no  rights  against  the  plaintiff  to  the  use  of  its  station,  either  in  its 
own  right  or  in  the  right  of  passengers.  The  fact  that  he  is  willing 
to  assume  relations  with  any  passenger  which  will  give  him  rela- 
tions with  the  plaintiff  involving  the  right  to  use  the  depot,  does 
not  establish  snch  relations  or  such  right;  and  the  right  of  passen- 
gers to  be  solicited  by  drivers  of  hacks  and  job  wagons  is  not  such 
as  to  give  to  all  such  drivers  a  right  to  occupy  the  platforms  and 
depots  of  railroads.  If  such  right  exists,  it  exists,  under  the  statute, 
equally  for  all,  and  railroad  companies  are  obliged  to  admit  to  their 
depots,  not  only  persons  having  business  there  to  deliver  or  receive 
passengers  or  merchandise,  but  all  persons  seeking  such  business, 
and  to  furnish  reasonable  and  equal  facilities  and  conveniences  for 
all  such. 

The  only  case  we  have  seen  which  seems  to  lend  any  countenance 
to  the  position  that  a  railroad  company  has  no  right  to  exclude  per- 
sons from  occupying  its  depots  for  the  purpose  of  soliciting  the 
patronage  of  passengers,  is  Markham  v.  Brown,  8"  N.  H.  523  [245],  in 
which  it  was  held  that  an  inn-holder  had  no  right  to  exclude  from 
his  inn  a  stage-driver  who  entered  it  to  solicit  guests  to  patronize 
his  stage,  in  opposition  to  a  driver  of  a  rival  line,  who  had  been 
admitted  for  a  like  purpose.  It  was  said  to  rest  upon  the  right  of 
the  passengers,  rather  than  that  of  the  driver.  However  it  may  be 
with  a  guest  at  an  inn,  we  do  not  think  that  passengers  in  a  railroad 
depot  have  such  possession  of  or  right  in  the  premises  as  will  give 
to  carriers  of  baggage,  soliciting  their  patronage,  an  implied  license 
to  enter,  irrevocable  by  the   railroad  company.     Barney  v.  Oyster 


PUBLIC    CALLING.  897 

Bay  &  Huntington  Steamboat  Co.,   67  X.  Y.  301,  and  Jencks  v. 
Coleman,  2  Sumner,  221  [891]  are  cases  directly  in  point.     See  al 
Commonwealth   v.   Power,  7  Met.    596,  and  Harris  v.   Stevens,  31 
Vt.  79. 

It  is  argued  that  the  statute  gave  to  the  defendant  the  same  right 
to  enter  upon  and  use  the  buildings  and  platforms  of  the  plaintiff, 
which  the  plaintiff  gave  to  Porter  and  Sons.  The  plaintiff  made  a 
contract  with  Porter  and  Sons  to  do  all  the  service  required  by 
incoming  passengers  in  receiving  from  the  plaintiff  and  delivering 
in  the  town  baggage  and  merchandise  brought  by  them,  and  pro- 
hibited the  defendant  and  all  other  owners  of  job  wagons  from  enter- 
ing the  station  for  the  purpose  of  soliciting  from  passengers  the  car- 
riage of  their  baggage  and  merchandise,  but  allowed  them  to  enter 
for  the  purpose  of  delivering  baggage  or  merchandise,  or  of  receiv- 
ing any  for  which  they  had  orders.  Section  188  of  the  Pub.  Sts.  c. 
112,  is  in  these  words:  "Every  railroad  corporation  shall  give  to  all 
persons  or  companies  reasonable  and  equal  terms,  facilities,  and 
accommodations  for  the  transportation  of  themselves,  their  agents 
and  servants,  and  of  any  merchandise  and  other  property  upon  its 
railroad,  and  for  the  use  of  its  depot  and  other  buildings  and 
grounds ;  and,  at  any  point  where  its  railroad  connects  with  another 
railroad,  reasonable  and  equal  terms  and  facilities  of  interchange." 
A  penalty  is  prescribed  in  §  191  for  violations  of  the  statute. 

The  statute,  in  providing  that  a  railroad  corporation  shall  give 
to  all  persons  equal  facilities  for  the  use  of  its  depots,  obviously 
means  a  use  of  right.  It  does  not  intend  to  prescribe  who  shall 
have  the  use  of  the  depot,  but  to  provide  that  all  who  have  the  right 
to  use  it  shall  be  furnished  by  the  railroad  company  with  equal  con- 
veniences. The  statute  applies  only  to  relations  between  railroads 
as  common  carriers  and  their  patrons.  It  does  not  enact  that  a 
license  given  by  a  railroad  company  to  a  stranger  shall  be  a  license 
to  all  the  world.  If  a  railroad  company  allows  a  person  to  sell 
refreshments  or  newspapers  in  its  depots,  or  to  cultivate  flowers  on 
its  station  grounds,  the  statute  does  not  extend  the  same  right  to  all 
persons.  If  a  railroad  company,  for  the  convenience  of  its  passen- 
gers, allows  a  baggage  expressman  to  travel  in  its  cars  to  solicit  the 
carriage  of  the  baggage  of  passengers,  or  to  keep  a  stand  in  its 
depots  for  receiving  orders  from  passengers,  the  statute  does  not 
require  it  to  furnish  equal  facilities  and  conveniences  to  all  persons. 
The  fact  that  the  defendant, 'as  the  owner  of  a  job  wagon,  is  a  com- 
mon carrier,  gives  him  no  special  right  under  the  statute;  it  only 
shows  that  it  is  possible  for  him  to  perform  for  passengers  the  ser- 
vice which  he  wishes  to  solicit  of  them. 

The  English  railway  and  canal  traffic  act,  17  &  18  Vict.  c.  31, 
requires  every  railway  and  canal  company  to  afford  all  reasonable 
facilities  for  traffic,  and  provides  that  "no  such  company  shall  make 
or  give  any  undue  or  unreasonable  preference  or  advantage  to  or  in 


898  CARRIERS   OF   PASSENGERS. 

favor  of  any  particular  person  or  company,  or  any  particular  descrip^ 
tion  of  traffic,  in  any  respect  whatsoever."  Marriott  v.  London  & 
Southwestern  Railway,  1  C.  B.  (N.  S.)  499,  was  under  this  statute. 
The  complaint  was  that  the  omnibus  of  Marriott,  in  which  he 
brought  passengers  to  the  railroad,  was  excluded  by  the  railway 
company  from  its  station  grounds,  when  other  omnibuses  which 
brought  passengers  were  admitted.  An  injunction  was  ordered. 
Beadell  v.  Eastern  Counties  Railway,  2  C.  B.  (N.  S.)  509,  was  a 
complaint  under  the  statute  that  the  railway  company  refused  to 
allow  the  complainant  to  ply  for  passengers  at  its  station,  it  hav- 
ing granted  the  exclusive  right  of  taking  up  passengers  within  the 
station  to  one  Clark.  The  respondent  allowed  the  complainant's 
cabs  to  enter  the  station  for  the  purpose  of  putting  down  passengers, 
and  then  required  him  to  leave  the  yard.  An  injunction  was  refused. 
One  ground  on  which  the  case  was  distinguished  from  Mariott's 
was,  that  the  complainant  was  allowed  to  enter  the  yard  to  set  down 
passengers,  and  was  only  prohibited  from  remaining  to  ply  for  pas- 
sengers. See  also  Painter  v.  London,  Brighton,  &  South  Coast  Rail- 
way, 2  C.  B.  (N.  S.)  702;  Barker  v.  Midland  Railway,  18  C.  B.  46. 
Besides  Marriott's  case,  ubi  supra,  Palmer  v.  London,  Brighton,  & 
South  Coast  Railway,  L.  R.  0  C.  P.  194,  and  Parkinson  v.  Great 
Western  Railway,  L.  R.  6  C.  P.  554,  are  cases  in  which  injunctions 
were  granted  under  the  statute;  in  the  former  case,  for  refusing  to 
admit  vans  containing  goods  to  the  station  yard  for  delivery  to  the 
railway  company  for  transportation  by  it;  in  the  latter  case  for 
refusing  to  deliver  at  the  station,  to  a  carrier  authorized  to  receive 
them,  goods  which  had  been  transported  on  the  railroad. 

We  have  not  been  referred  to  any  decision  or  dictum  in  England 
or  in  this  country,  that  a  common  carrier  of  passengers  and  their 
baggage  to  and  from  a  railroad  station  has  any  right,  without  the 
consent  of  the  railroad  company,  to  use  the  grounds,  buildings,  and 
platforms  of  the  station  for  the  purpose  of  soliciting  the  patronage 
of  passengers,  or  that  a  regulation  of  the  company  which  allows 
such  use  by  particular  persons,  and  denies  it  to  others,  violates  any 
right  of  the  latter.  Cases  at  common  law  or  under  statutes  to  deter- 
mine whether  railroad  companies  in  particular  instances  gave  equal 
terms  and  facilities  to  different  parties  to  whom  they  furnished 
transportation,  and  with  whom  they  dealt  as  common  carriers,  have 
no  bearing  on  the  case  at  bar.  The  defendant  in  his  business  of 
solicitor  of  the  patronage  of  passengers  held  no  relations  with  the 
plaintiff  as  a  common  carrier,  and  had  no  right  to  use  its  station 
grounds  and  buildings.  A  majority  of  the  court  are  of  the  opinion 
that  there  should  be  Judgment  on  the  verdict. 

Field,  J.  The  Chief  Justice,  Mr.  Justice  Devens,  and  myself 
think  that  our  statutes  should  receive  a  different  construction  from 
that  given  to  them  by  a  majority  of  the  court.     The  Pub.  Sts.  c. 


PUBLIC   CALLING.  899 

112,  sec.  188,  provide  "  that  every  railroad  corporation  shall  give  to 
all  persons  or  companies  reasonable  and  equal  terms,  facilities,  and 
accommodations  for  the  transportation  of  themselves,  their  agents 
and  servants,  and  of  any  merchandise  and  other  property  upon  its 
railroad,  and  for  the  use  of  its  depot  and  other  buildings  and  grounds; 
and,  at  any  point  where  its  railroad  connects  with  another  railroad, 
reasonable  and  equal  terms  and  facilities  of  interchange."  Section 
189  of  the  same  chapter  provides  that  "every  railroad  corporation 
shall  promptly  forward  merchandise  consigned  or  directed  to  be  sent 
over  another  road  connecting  with  its  road,  according  to  the  direc- 
tions contained  thereon  or  accompanying  the  same,  and  shall  not 
receive  and  forward  over  its  road  merchandise  consigned,  ordered,  or 
expressly  directed  to  be  received  and  forwarded  by  a  different  route." 
By  section  191,  a  railroad  corporation  which  violates  these  pro- 
visions is  liable  for  all  damages  sustained  by  reason  of  such  viola- 
tion, and  to  a  penalty  of  two  hundred  dollars,  which  may  be 
recovered  to  the  use  of  the  party  aggrieved,  or  to  the  use  of  the 
Commonwealth.  These  sections  are  taken  from  the  St.  of  1874,  c. 
372,  sees.  138,  139,  141,  and  the  St.  of  1880,  c.  258. 

Section  188  of  the  Pub.  Sts.  c.  112  was  first  enacted  by  the  St. 
of  1867,  c.  339.  This  section  does  not,  in  terms,  require  that  the 
persons  or  companies  to  whom  the  corporation  is  required  to  give 
"  reasonable  and  equal  terms,  facilities,  and  accommodations  "  shall 
own  the  merchandise  which  is  transported,  nor  is  it  limited  to  the 
delivery  of  merchandise  to  be  transported  by  the  railroad  corpora- 
tion. In  the  clause  relating  to  connecting  railroads,  the  section 
plainly  means  that  railroads  shall  give  to  other  railroads  connecting 
with  them,  and  shall  receive  with  such  other  railroads,  reasonable 
and  equal  terms  and  facilities  of  interchange  both  in  delivering  pas- 
sengers and  merchandise  to,  and  in  receiving  them  from,  the  rail- 
roads with  which  they  connect.  The  provision  that  every  railroad 
corporation  shall  give  to  all  persons  or  companies  reasonable  and 
equal  terms,  facilities,  and  accommodations  for  the  use  of  the  depot 
and  other  buildings  and  grounds,  must  include  the  use  of  the  depot 
and  other  buildings  and  grounds  for  receiving  passengers  and  mer- 
chandise from  a  railroad  at  the  terminus  where  the  transportation 
on  the  railroad  ends,  as  well  as  for  delivering  passengers  and  mer- 
chandise to  a  railroad  at  the   terminus  where  such  transportation 

begins. 

As  the  last  clause  of  the  section  makes  provision  for  carriers  con- 
necting by  railroad,  we  think  that  the  preceding  clause  was  intended 
to  make  provision  for  other  connecting  carriers,  and  to  include  pub- 
lic or  common  carriers,  as  well  as  private  carriers  actually  employed 
by  passengers  or  by  the  owners  or  consignees  of  merchandise.  Stages 
and  expresses  are  the  only  common  carriers  of  passengers  and  of 
merchandise  to  and  from  many  places  in  the  Commonwealth,  and  in 
connection  with  railroads  often  form  a  continuous  line  of   trans- 


900  CARRIERS    OF   PASSENGERS. 

portation.  The  statute,  we  think,  was  intended  to  prevent  unjust 
discrimination  by  a  railroad  corporation  between  common  carriers 
connecting  with  it  in  any  manner,  and  to  require  that  the  railroad 
corporation  should  furnish  to  such  carriers  reasonable  and  equal 
terms,  facilities,  and  accommodations  in  the  use  of  its  depot  and 
other  buildings  and  grounds  for  the  interchange  of  traffic. 

A  railroad  corporation  can  make  reasonable  rules  and  regulations 
concerning  the  use  of  its  depot  and  other  buildings  and  grounds, 
and  can  exclude  all  persons  therefrom  who  have  no  business  with 
the  railroad,  and  it  can  probably  prohibit  all  persons  from  soliciting 
business  for  themselves  on  its  premises.  Whatever  may  be  its  rights 
to  exclude  all  common  carriers  of  passengers  or  of  merchandise  from 
its  depots  and  grounds  who  have  not  an  order  to  enter,  given  by 
persons  who  are  or  who  intend  to  become  passengers,  or  who  own 
or  are  entitled  to  the  possession  of  merchandise  which  has  been  or 
is  to  be  transported,  it  cannot  arbitrarily  admit  to  its  depot  and 
grounds  one  common  carrier  and  exclude  all  others.  The  effect  of 
such  a  regulation  would  be  to  enable  a  railroad  corporation  largely 
to  control  the  transportation  of  passengers  and  merchandise  beyond 
its  own  line,  and  to  establish  a  monopoly  not  granted  by  its  charter, 
which  might  be  solely  for  its  own  benefit,  and  not  for  the  benefit  of 
the  public.  Such  a  regulation  does  not  give  "  to  all  persons  or  com- 
panies reasonable  and  equal  terms,  facilities  and  accommodations 
.  .  .  for  the  use  of  its  depot  and  other  buildings  and  grounds,"  in 
the  transportation  of  persons  and  property.  See  Parkinson  v.  Great 
Western  Railway,  L.  R.  6  C.  P.  554;  Palmer  v.  London,  Brighton 
&  South  Coast  Railway,  L.  R.  6  C.  P.  194;  New  England  Express 
Company  v.  Maine  Central  Railroad,  57  Maine,  188. 


3.    WHO  DEEMED  PASSENGERS, 
a.    Acceptance. 

BRIEN  v.    BENNETT. 

Before  Lord  Abinger,  C.  B.  8  Car.  &  P.  724.     1839. 

Case.  —  The  declaration  stated  that  the  defendant  was  the  pro- 
prietor of  an  omnibus  for  carrying  passengers  from  Hammersmith 
and  divers  other  places  to  London,  and  being  such  owner,  the  plain- 
tiff at  the  request  of  the  defendant,  "  agreed  to  become  and  became 
a  passenger  by  the  said  omnibus  to  be  safely  and  securely  conveyed  " 
from  Hammersmith  to  London  for  reasonable  fare  and  reward  to  the 


WHO    DEEMED    PASSENGERS.  901 

defendant,  "and  the  defendant  then  received  the  plaintiff  as  such 
passenger  as  aforesaid,  and  thereupon  it  became  and  was  the  duty 
of  the  defendant  to  use  due  and  proper  care  that  the  plaintiff  should 
be  safely  and  securely  carried  and  conveyed  by  the  said  omnibus  " 
yet  the  defendant,  not  regarding  his  duty,  did  not  use  proper  care, 
&c,  but  on  the  contrary,  neglected  it,  so  that  by  the  negligence  of 
the  defendant  and  his  servant  in  that  behalf,  "the  plaintiff,  whilst 
such  passenger, as  aforesaid,"  fell  from  the  said  omnibus  upon  the 
ground,  and  was  greatly  hurt,  &c.  Pleas,  1st,  not  guilty;  2d,  deny- 
ing that  the  defendant  was  the  proprietor  of  the  omnibus;  3d,  "that 
the  plaintiff  did  not  become  a  passenger  by  the  said  omnibus,  nor 
did  the  defendant  receive  him,  the  plaintiff,  as  such  passenger  in 
manner  and  form  as  in  the  said  declaration  is  alleged  "  (concluding 
to  the  country). 

It  appeared  that  the  defendant's  omnibus  was  passing  on  its  jour- 
ney, when  the  plaintiff,  who  was  a  gentleman  considerably  advanced 
in  years,  held  up  his  finger  to  cause  the  driver  of  the  omnibus  to 
stop  and  take  him  up,  and  that  upon  his  doing  so  the  driver  pulled 
up,  and  the  conductor  opened  the  omnibus  door;  and  that  just  as 
the  plaintiff  was  putting  his  foot  on  the  step  of  the  omnibus,  the 
driver,  supposing  that  the  plaintiff  had  got  into  it,  drove  on,  and 
the  plaintiff  fell  on  his  face  on  the  ground,  and  was  much  hurt. 

Piatt,  for  the  defendant.  I  submit  that  the  plaintiff  never  was 
a  passenger. 

Lord  Abinger,  C.  B.  I  think  that  the  stopping  of  the  omnibus 
implies  a  consent  to  take  the  plaintiff  as  a  passenger,  and  that  it  is 
evidence  to  go  to  the  jury. 

Verdict  for  the  plaintiff — Damages  £5. 


ALLENDER  v.  CHICAGO,  ETC.,  R.    CO. 
37  Iowa,  264.     1873. 

Action-  to  recover  damages  for  injuries  received  by  cars  on 
defendant's  road. 

On  the  5th  day  of  November,  1870,  the  defendant  operated  a  rail- 
road in  Jefferson  county,  and  had  a  depot  at  Fairfield,  which  was 
then  the  terminal  station  of  the  road.  About  half-past  four  o'clock 
in  the  afternoon  of  that  day  plaintiff,  a  resident  of  Jefferson  county, 
eighteen  years  of  age,  and  who  had  never  ridden  on  the  cars,  applied 
at  the  depot  of  defendant,  in  Fairfield,  for  passage  to  Acheson,  the 
next  station  on  the  road. 

She  was  informed  by  the  ticket  agent  that  the  regular  train  had 
gone,  but  that  a  freight  train  would  leave  about  5  o'clock,  which 
would  have  a  car  on  which  she  could  ride.     She  informed  the  agent 


902  CARRIERS    OF    PASSENGERS. 

that  she  would  rather  go  on  that  than  wait  for  the  passenger  train, 
and  then  went  to  the  house  of  an  acquaintance  near  the  depot. 

In  a  short  time  she  returned,  went  to  the  door  of  the  ticket  office, 
asked  for  a  ticket,  and  inquired  how  long  it  would  be  before  she 
could  go.  The  agent  informed  her  that  the  train  would  start  in 
about  twenty  minutes;  told  her  that  she  could  pay  her  fare  to  the 
conductor,  and  that  she  had  better  go  and  get  on  the  car  and  be  ready. 
She  told  the  agent  that  she  had  never  ridden  on  the  cars  before,  and 
asked  him  if  they  would  not  back  up  to  the  station.  He  said  the 
regular  passenger  train  did. 

The  caboose  attached  to  this  freight  train  had  seats  like  a  passen- 
ger car  in  one  end,  the  other  part  being  for  the  conductor  and  train 
men.  There  were  steps,  a  door  and  a  platform  at  each  end,  and 
doors  in  the  side  in  the  part  used  by  the  train  men. 

At  the  place  in  question  the  defendant's  road  had  three  tracks. 
The  caboose  stood  on  the  track  farthest  from  the  depot,  and  about 
two  hundred  and  fifty  feet  north  of  it.  The  engine  stood  up  the 
track  still  further  north.  To  the  rear  or  south  end  of  the  caboose 
was  attached  a  flat  car.  The  bunter  of  the  flat  car  was  out.  About 
five  feet  south  of  the  flat  car  stood  a  box-car. 

The  ticket  agent  went  with  the  plaintiff  out  on  the  platform  over 
the  first  track  to  the  middle  track,  in  view  of  the  caboose  car,  pointed 
it  out  with  his  linger,  and  directed  her  to  go  to  it  and  get  on. 

The  plaintiff  passed  north  up  the  track  until  she  came  to  the  south 
end  of  the  flat  car,  and  then,  seeing  no  means  of  entering  the  caboose 
car,  as  she  supposed,  she  undertook  to  pass  between  the  flat  car  and 
the  box-car,  a  few  feet  south  of  it,  hoping  to  find  an  opening  by 
which  she  might  enter  the  car  on  the  other  side,  first  looking  up 
and  down  the  track,  and  discovering  nothing  in  motion.  At  this 
time  the  brakeman  and  conductor  were  engaged  in  making  up  the 
train.  Four  freight  cars  detached  from  the  locomotive,  the  conduc- 
tor upon  them,  were  very  slowly  coming  down  from  the  north  to  be 
attached  to  the  caboose.  When  they  came  near  the  caboose  the 
conductor  got  off  and  walked  alonsgide  to  make  the  coupling.  The 
concussion  was  slight,  but  was  sufficient  to  carry  the  caboose  and 
flat  car  far  enough  back  to  almost  close  the  space  through  which  the 
plaintiff  was  at  that  moment  passing.  She  was  caught  between  the 
flat  car  and  the  box-car  about  the  hips,  and  received  the  injuries  for 
which  she  sues. 

Jury  trial.  Verdict  for  plaintiff  for  $5000.  Motion  for  new  trial 
overruled.     Judgment  upon  the  verdict.     Defendant  appeals. 

UAYj  t) .  .  .  .  .  .  .  .  .  •  • 

III.  The  court  gave  to  the  jury  sixteen  instructions,  which,  in 
the  main,  quite  fairly  present  the  case.  To  six  of  them  the  defend- 
ant makes  objection.  Some  of  them  are  exceptionable  because  they 
suggest  Co  che  jury  matters  outside  of  the  evidence  produced.  The 
sixteenth  instruction  given  is  as  follows :  — 


WHO    DEEMED    PASSENGERS.  903 

"And  she  may  recover  not  only  the  amount  of  damages  which  she 
suffered  prior  to  the  commencement  of  this  suit,  but  also  all  the 
damages  proceeding  continuously  from  the  injury  complained  of, 
which  she  had  suffered  up  to  the  present  time,  and  which  it  is  reas- 
onably certain  she  will  suffer  in  the  future.  There  must,  however, 
be  a  reasonable  certainty  as  to  such  future  damages.  Yet  she  can- 
not recover  for  the  damage  which  she  might  have  avoided  by  tin- 
exercise  of  slight  care  and  diligence  after  she  became  aware  of  the 
injury  of  which  she  complains." 

This  instruction  is  erroneous.  It  is  the  duty  of  a  person  placed 
in  the  condition  of  plaintiff  to  exercise  not  slight,  but  reasonable 
care  and  diligence  to  effect  a  speedy  and  complete  cure.  And  for 
injuries  or  suffering  caused  or  enhanced  by  the  neglect  to  use  such 
care  she  cannot  recover.  Collins  v.  City  of  Council  Bluffs,  32 
Iowa,  324. 

Evidence  was  introduced  which,  appellant  claims,  shows  a  failure 
to  exercise  such  care,  as  her  failure  to  consult  a  physician  or  take 
medicine  after  the  lapse  of  about  one  week  from  the  injury,  and  her 
going  to  work  soon  after  the  injury  was  received. 

It  was  the  right  of  the  defendant  to  have  the  verdict  of  the  jury 
as  to  whether  plaintiff  exercised  ordinary  care  in  the  means  employed 
to  effect  a  cure.  And  we  cannot  say  that  it  has  not  been  prejudiced 
by  the  failure  to  submit  this  question  under  the  proper  instruction. 

For  the  error  in  this  instruction  the  cause  must  be  reversed,  but 
as  the  questions  raised  in  the  other  instructions  complained  of,  may 
arise  upon  the  new  trial,  it  is  necessary  that  we  should  consider 
and  determine  them. 

Whilst  in  the  main,  the  instructions  given  very  fairly  present  the 
case,  yet  some  of  them  have  objectionable  features  which  should  be 
avoided  on  the  new  trial. 

The  seventh  instruction  is  as  follows :  — 

"If  you  believe  that  the  plaintiff  entered  into  an  office  or  waiting 
room  provided  by  defendant  for  passengers,  and  informed  the  depot 
or  ticket  agent  of  her  intention  and  desire  to  become  a  passenger: 
that  she  placed  herself  in  good  faith,  under  his  direction  as  such ; 
that  such  agent  directed  her  in  getting  on  (attempting  to  get  on) 
the  car;  these  facts,  if  established  to  your  satisfaction  by  the  evi- 
dence, would  be  sufficient  to  justify  you  in  finding  that  the  relation 
of  passenger  existed  although  she  had  not  purchased  a  ticket,  and 
had  not  entered  a  car."  This  instruction  is  not  only  right  in  prin- 
ciple, but  it  is  supported  by  authority. 

If  the  actual  purchase  of  a  ticket,  or  the  entering  of  a  car  is  neces- 
sary in  order  to  constitute  the  relation  of  a  passenger,  then  no  one 
taking  passage  on  a  railway  at  a  way  station  where  no  tickets  are 
sold,  can  demand  of  the  company  the  exercise  of  that  high  degree  oi 
care  which  a  common  carrier  owes  a  passenger,  until  he  had  actually 
obtained  admission  to  the  car.     If  the  doctrine  of  the  instruction  he 


904  CARRIERS    OF   PASSENGERS. 

not  right,  then  a  person  taking  passage  at  a  way  station,  without 
the  means  of  procuring  a  ticket,  might  be  precipitated  under  the 
wheels  and  injured,  from  a  defect  in  the  steps,  and  yet  could  demand 
of  the  company  the  exercise  of  only  ordinary  care. 

The  rule  given  by  the  court  is  distinctly  recognized  in  Shearman 
&  Eedfield  on  Negligence,  section  262,  and  cases  cited,  and  we  have 
no  doubt  of  its  correctness. 

•  «••«•••••• 

Reversed. 


b.    Persons  pursuing  Special  Callings. 

NOLTOX   v.    WESTERN   K.    CO. 
15  N.  Y.  444.     1857. 

Demurrer  to  Complaint.  The  complaint  stated  that  the  plain- 
tiff was  a  mail  agent  on  the  defendant's  railroad,  in  the  employment 
of  the  United  States,  and  the  defendant  a  carrier  of  passengers  and 
freight,  for  fare  and  reward,  by  railroad  and  cars,  between  Green- 
bush  and  Boston.  That  defendant  was  bound  by  contract  between 
it  and  the  United  States,  for  a  stipulated  time  and  price,  to  carry 
the  mails,  and  also  the  mail  agent,  without  further  charge;  that  in 
pursuance  and  in  consideration  of  such  contract,  the  defendant 
received  the  plaintiff  into  a  car  fitted  up  for  the  accommodation  of 
the  mail  and  mail  agent;  and  the  plaintiff,  for  the  consideration 
aforesaid,  became  and  was  a  passenger  in  the  said  cars,  to  be  by  the 
defendant,  thereby,  safely  and  with  due  care  and  skill,  carried  and 
conveved  to  Worcester,  which  the  defendant  then  and  there  under- 
took  and  was  bound  to  do.  It  then  states  a  bodily  injury  received 
by  the  plaintiff,  by  the  running  of  the  car,  containing  the  plaintiff, 
off  the  track,  and  breaking  it,  through  defectiveness  of  machinery, 
want  of  care,  skill,  &c.  The  defendant  demurred,  and  after  final 
judgment  for  the  plaintiff,  by  the  Supreme  Court  at  general  term, 
appealed  to  this  court.     The  case  was  submitted  on  printed  briefs. 

Selden,  J.  As  the  only  objection  which  can  be  taken  to  the 
complaint  upon  this  demurrer  is,  that  it  does  not  contain  facts  suffi- 
cient to  constitute  a  cause  of  action,  it  is  entirely  immaterial  whether 
the  action  be  considered  as  in  form  ex  contractu  or  ex  delicto.  The 
only  question  is  whether,  upon  the  facts  stated,  the  plaintiff  can 
maintain  an  action  in  any  form. 

The  plaintiff  cannot,  I  think,  avail  himself  of  the  contract  be- 
tween the  defendant  and  the  government,  so  as  to  make  that  the 
gravamen  of  his  complaint,  and  the  foundation  of  a  recovery.  This 
is  not  like  the  cases  in  which  a  third  person  has  been  permitted  to 


WHO   DEEMED   PASSENGERS.  905 

recover  upon  a  contract  made  by  another  party  for  his  own  benefit. 
The  distinction  between  them  is  plain.  Those  were  cases  where  the 
defendant,  for  a  consideration,  received  from  the  party  to  the  con- 
tract, had  undertaken  to  do  something  ostensibly  and  avowedly,  for 
the  direct  benefit  of  the  plaintiff,  and  when  the  advantage  to  the 
latter  was  one  object  of  the  agreement.  Here  the  parties  had  no 
such  intention.  In  contracting  for  the  transportation  of  the  mail 
agent,  the  parties  had  no  more  in  view  any  benefit  or  advantage  to 
him,  than  if  the  contract  had  been  to  transport  a  chattel.  The 
government  took  car.e  of  the  public  interests,  and  left  those  of  the 
mail  agent  to  such  protection  as  the  law  would  afford. 

Another  distinction  is,  that  in  the  cases  referred  to,  the  party 
claiming  the  benefit  of  the  contract  and  seeking  to  enforce  it,  was 
one  who  was  specifically  mentioned  and  pointed  out  in  the  contract 
itself,  while  here  no  one  is  designated;  and  to  entitle  the  plain- 
tiff to  recover  upon  it,  it  must  be  regarded  as  a  shifting  contract, 
which  can  be  made  to  enure  to  the  benefit  of  any  person  who  may 
temporarily  assume  the  duties  of  mail  agent.  I  think  there  is  no 
precedent  for  such  a  construction  of  such  a  contract. 

If,  then,  the  plaintiff  can  recover  at  all,  it  must  be  upon  the 
ground  of  some  implied  contract,  or  of  some  legal  obligation  or  duty 
resting  upon  the  defendants,  to  exercise  proper  care  and  skill  in  the 
transportation  of  passengers,  and  the  question  is,  whether,  under 
the  circumstances  of  this  case,  such  a  contract  is  implied,  or  such  a 
duty  imposed  for  the  benefit  of  the  plaintiff. 

It  would  seem  a  startling  proposition,  that  in  all  those  cases  where 
persons  travel  upon  railroads  engaged  not  in  their  own  business, 
but  that  of  others,  and  where  their  fare  is  paid  by  their  employer, 
they  are  entirely  at  the  mercy  of  the  railroad  agents,  and  without 
redress,  if  injured  through  their  recklessness  and  want  of  care  and 
skill.  If,  however,  railroad  companies  are  liable,  in  cases  like  the 
present,  it  is  important  to  ascertain  the  precise  nature  and  extent 
of  that  liability. 

In  the  first  place,  then,  it  is  clear  that  they  are  not  liable,  by  vir- 
tue of  that  custom  or  rule  of  the  common  law  which  imposes  special 
and  peculiar  obligations  upon  common  carriers.  Persons  engaged 
in  the  conveyance  of  passengers  are  not  common  carriers  within  the 
meaning  of  that  rule,  which  applies  solely  to  those  whose  business 
it  is  to  transport  goods.  Bac.  Abr.,  tit.  carriers;  2  Kent's  Com., 
§  40;  Story  on  Bail.,  §  498,  and  note. 

If  the  complaint  in  this  case,  after  stating  that  the  defendant  was 
a  carrier  of  passengers  and  freight  from  Greenbush  to  Boston,  for 
hire  and  reward,  had  simply  averred  that  the  plaintiff  became  a  pas- 
senger in  the  cars  of  the  defendant,  and  was  so  received  by  it;  an 
implied  contract  would  have  arisen  on  the  part  of  the  defendant, 
to  transport  the  plaintiff,  with  all  due  diligence  and  skill ;  because 
the  law  would  have  inferred  from  those  facts  that  the  defendant 


906  CARRIERS    OF   PASSENGERS. 

was  to  receive  a  compensation  from  the  plaintiff  himself.  But  this 
inference  is  repelled  by  the  contract  set  forth,  and  the  statement 
that  the  plaintiff  was  received  as  a  passenger  under  it. 

It  was  suggested  by  the  plaiutiff's  counsel,  upon  the  argument, 
that  a  contract  might  be  implied,  of  which  the  agreement  between 
the  defendant  and  the  government  should  form  the  consideration 
and  basis.  But  although  that  agreement  may  be  resorted  to,  for 
the  purpose  of  showing  that  the  plaintiff  became  a  passenger  upon 
the  cars  by  the  consent  of  the  defendant,  and  not  as  a  mere  intruder, 
it  cannot,  I  think,  be  made  available  by  the  plaintiff,  as  the  con- 
sideration of  an  implied  assumpsit.  As  to  him,  that  agreement  is 
res  inter  alios  acta.  He  is  not  a  party  to  it  or  mentioned  in  it.  His 
employment  by  the  government  may  have  taken  place  long  after  the 
agreement  was  made,  and  have  had  no  reference  to  it.  If  any  con- 
tract can  be  implied  from  that  agreement,  in  favor  of  the  plaintiff, 
it  must  be  a  contract  to  transport  him  from  place  to  place,  accord- 
ing to  the  terms  of  the  agreement.  Suppose,  then,  the  cause  of 
action,  instead  of  being  for  an  injury  received  through  the  negli- 
gence of  the  defendant,  had  been  for  not  furnishing  the  necessary 
cars,  or  not  running  any  train,  could  the  plaintiff  recover  in  such 
an  action?  Would  the  defendant  be  liable  for  its  failure  to  perform 
the  contract,  not  only  to  the  party  with  whom  the  contract  was 
made,  and  from  whom  the  consideration  was  received,  but  to  a  third 
party  not  named  in  it,  and  from  whom  they  had  received  nothing? 
No  one  would  claim  this. 

It  may  be  said  that  the  implied  contract  with  the  plaintiff  is 
limited  to  an  undertaking  to  transport  safely  or  with  due  care.  It 
is  difficult  to  see,  however,  how  there  can  be  a  contract  to  transport 
safely  where  there  is  no  contract  to  transport  at  all.  My  conclusion 
therefore  is,  that  this  action  cannot  be  maintained  upon  the  basis  of 
a  contract  express  or  implied. 

It  necessarily  follows  that  it  must  rest  exclusively  upon  that 
obligation  which  the  law  always  imposes  upon  every  one  who 
attempts  to  do  anything,  even  gratuitously,  for  another,  to  exercise 
some  degree  of  care  and  skill  in  the  performance  of  what  he  has 
undertaken.  The  leading  case  on  this  subject  is  that  of  Coggs  v. 
Bernard,  Ld.  Ray.  909.  There  the  defendant  had  undertaken  to 
take  several  hogsheads  of  brandy  belonging  to  the  plaintiff,  from  one 
cellar  in  London,  and  to  deposit  it  in  another;  and  in  the  process  of 
moving  one  of  the  hogsheads  was  staved  and  the  brandy  lost, 
through  the  carelessness  of  the  defendant  or  his  servants.  Although 
it  did  not  appear  that  the  defendant  was  to  receive  anything  for  his 
services,  he  was,  nevertheless,  held  liable  by  the  whole  court. 

The  principle  of  this  case  has  never  since  been  doubted,  but  there 
has  been  some  confusion  in  the  subsequent  cases  as  to  the  true 
nature  of  the  obligation,  and  as  to  the  form  of  the  remedy  for  its 
violation.     In  many  instances  suits  have  been  brought,  upon  the 


WHO   DEEMED    PASSENGERS.  907 

supposition  that  an  implied  contract  arises,  in  all  such  cases,  that 
the  party  will  exercise  due  care  and  diligence;  and  the  language  of 
Lord  Holt,  in  Coggs  v.  Bernard,'  undoubtedly  gives  countenance  to 
this  idea.  He  seems  to  treat  the  trust  and  confidence  reposed  as  a 
sufficient  consideration  to  support  a  promise.  This  doctrine,  how- 
ever, can  hardly  be  considered  as  in  consonance  with  the  general 
principles  of  the  common  law.  In  addition  to  the  difficulty  of 
bringing  mere  trust  and  confidence  within  any  legal  definition  of 
valuable  consideration  there  is  a  manifest  incongruity  in  raising  a 
contract,  to  do  with  care  and  skill  that  which  the  party  is  under  no 
legal  obligation  to  do  at  all. 

The  duty  arises  in  such  cases,  I  apprehend,  entirely  independent 
of  any  contract,  either  expressed  or  implied.  The  principle  upon 
which  a  party  is  held  responsible  for  its  violation  does  not  differ 
very  essentially,  in  its  nature,  from  that  which  imposes  a  liability 
upon  the  owner  of  a  dangerous  animal,  who  carelessly  suffers  such 
animal  to  run  at  large,  by  means  of  which  another  sustains  injury; 
or  upon  one  who  digs  a  ditch  for  some  lawful  purpose  in  a  highway, 
and  carelessly  leaves  it  uncovered  at  night,  to  the  injury  of  some 
traveller  upon  the  road.  It  is  true,  it  may  be  said  that,  in  these 
cases,  the  duty  is  to  the  public,  while  in  the  present  case,  if  it 
exists  at  all  it  is  to  the  individual ;  but  the  basis  of  the  liability  is 
the  same  in  both  cases,  viz.,  the  culpable  negligence  of  the  party. 
All  actions  for  negligence  presuppose  some  obligation  or  duty  vio- 
lated. Mere  negligence,  where  there  was  no  legal  obligation  to  use 
care,  as  where  a  man  digs  a  pit  upon  his  own  land,  and  carelessly 
leaves  it  open,  affords  no  ground  of  action.  But  where  there  is  any- 
thing in  the  circumstances  to  create  a  duty,  either  to  an  individual 
or  the  public,  any  neglect  to  perform  that  duty,  from  which  injury 
arises,  is  actionable. 

The  present  case  falls  clearly  within  this  principle  of  liability. 
There  can  be  no  material  difference  between  a  gratuitous  undertak- 
ing to  transport  property,  and  a  similar  undertaking  to  transport 
a  person.  If  either  are  injured  through  the  culpable  carelessness 
of  the  carrier,  he  is  liable.  If,  according  to  the  case  of  Coggs  v. 
Bernard,  supra,  and  the  subsequent  cases,  an  obligation  to  exercise 
care  arises  in  one  case,  it  must  also  in  the  other. 

It  is  true  that,  according  to  the  authorities,  the  party  in  such  cases 
is  only  liable  for  gross  negligence.  But  what  will  amount  to  gross 
negligence  depends  upon  the  special  circumstances  of  each  case.  It 
has  been  held  that,  when  the  condition  of  the  party  charged  is  such 
as  to  imply  peculiar  knowledge  and  skill,  the  omission  to  exercise 
such  skill  is  equivalent  to  gross  negligence.  Thus,  it  was  said  by 
Lord  Loughborough,  in  Shiells  v.  Blackburne,  1  Hen.  Bl.  158,  that 
"  if  a  man  gratuitously  undertakes  to  do  a  thing  to  the  best  of  his 
skill,  when  his  situation  or  profession  is  such  as  to  imply  skill,  an 
omission  of  that  skill  is  imputable  to  him  as  gross  negligence." 


908  CARRIERS    OF   PASSENGERS. 

The  same  doctrine  is  advanced  by  Park,  B.,  in  Wilson  v.  Brett, 
11  Mees.  &  Wels.  113.  He  says:  "In  the  case  of  a  gratuitous 
bailee,  where  his  profession  or  situation  is  such  as  to  imply  the 
possession  of  competent  skill,  he  is  equally  liable  for  the  neglect  to 
use  it." 

I  regard  this  principle  as  peculiarly  applicable  to  railroad  com- 
panies in  view  of  the  magnitude  of  the  iuterests  which  depend  upon 
the  skill  of  their  agents,  and  of  the  utter  powerlessness  of  those 
who  trust  to  that  skill  to  provide  for  their  own  security. 

This  case  is  not  like  that  of  Winterbottom  v.  Wright,  10  Mees. 
&  Wels.  109.  There  the  defendant  had  not  undertaken  to  trans- 
port the  plaintiff,  either  gratuitously  or  otherwise.  He  was  simply 
bound  by  contract  with  the  government  to  furnish  and  keep  in  repair 
the  carriages  used  by  the  latter  in  transporting  the  mails.  The 
relations  of  the  parties  in  that  case  and  in  this  are  very  different, 
and  the  cases  cannot  be  considered  as  governed  by  the  same 
principles. 

I  entertain  no  doubt  that  in  all  cases  where  a  railroad  company 
voluntarily  undertakes  to  convey  a  passenger  upon  their  road, 
whether  with  or  without  compensation,  in  the  absence,  at  least,  of 
an  express  agreement  exempting  it  from  responsibility,  if  such  pas- 
senger is  injured  by  the  culpable  negligence  or  want  of  skill  of  the 
agents  of  the  company,  the  latter  is  liable.  The  matter  of  compen- 
sation may  have  a  bearing  upon  the  degree  of  negligence  for  which 
the  company  is  liable.  That  question,  however,  does  not  arise 
here.  Degrees  of  negligence  are  matters  of  proof,  and  not  of  aver- 
ment. The  allegations  of  negligence  in  this  complaint  are  sufficient 
whether  the  defendant  is  liable  for  ordinary  or  only  for  gross 
negligence.     The  judgment  should  be  affirmed.1 


c.   Employees. 

GILLSHANNON  v.    STONY  BROOK  R.    CO. 

10  Cush.  (Mass.)  228.     1852. 

Action  on  the  case  for  injuries  sustained  by  the  plaintiff ,  a  laborer 
in  the  employment  of  the  defendants,  by  the  negligence  of  their 
servants  and  agents.  It  was  tried  in  this  court  before  Bioelow,  J., 
by  whom  the  evidence  was  reported  for  the  consideration  of  the 
whole  court.  From  this  evidence  it  appeared  that  the  plaintiff  was 
a  common  laborer,  employed  in  repairing  the  defendant's  road-bed, 
at  a  place  several   miles   from   his   residence.     Each    morning   and 

1  Ace. :  Barker  v.  Chicago,  P.  &  St.  L.  R.  Co.,  243  111.  482,  90  N.  E.  R.  1057, 
26  L.  R.A.N.  S.  1058. 


WHO   DEEMED    PASSENGERS.  909 

evening  he  rode  with  other  laborers,  to  and  from  the  place  of  labor 
on  the  gravel  train  of  the  defendants.  This  was  done  with  the  con- 
sent of  the  company,  and  for  mutual  convenience ;  no  compensation 
being  paid,  directly  or  indirectly  by  the  laborers,  for  the  passage, 
and  the  company  being  under  no  contract  to  convey  the  laborers  to 
and  from  their  work. 

While  thus  on  the  way  to  their  work  on  one  occasion,  a  collision 
took  place  with  a  hand-car  on  the  track,  through  the  negligence  of 
those  having  charge  of  the  gravel  train,  as  the  plaintiff  contended, 
and  he  was  thrown  off  and  run  over  by  the  gravel  train,  for  which 
injury  this  action  was  brought.  The  plaintiff  had  no  charge  or  care 
over  the  gravel  train,  and  there  was  some  evidence  that  the  gravel 
train  was  not  sufficiently  supplied  with  brakemen.  If,  upon  these 
facts,  the  jury  would  be  justified  in  finding  a  verdict  for  the  plain- 
tiff, the  case  was  to  stand  for  trial ;  otherwise  the  plaintiff  to  become 
nonsuit. 

Dewey,  J.  If  the  relation  existing  between  these  parties  was 
that  of  master  and  servant,-  no  action  will  lie  against  the  defendants 
for  an  injury  received  by  the  plaintiff  in  the  course  of  that  service 
occasioned  by  the  negligence  of  a  fellow-servant.  Farwell  v.  Boston 
and  Worcester  Railroad,  4  Met.  49;  Hayes  v.  Western  Railroad, 
3  Cush.  270. 

It  was  attempted  on  the  argument  for  the  plaintiff  to  take  the 
case  out  of  the  rule  stated  in  those  cases,  upon  the  ground  that  the 
nature  of  the  employment  of  these  servants  was  different,  the  plain- 
tiff being  employed  as  a  laborer  in  constructing  the  railroad  bed, 
arid  not  engaged  in  any  duty  connected  with  running  the  trains,  and 
so  not  engaged  in  any  common  enterprise.  The  case  of  Albro  v. 
Agawam  Canal  Co.,  6  Cush.  75,  seems  to  be  adverse  to  these  views, 
and  goes  strongly  to  sustain  the  defence. 

It  was  also  urged  that  the  plaintiff  was  not  in  the  employment  of 
the  defendants  at  the  time  the  injury  was  received,  or  that  he  might 
properly  be  considered  as  a  passenger,  and  the  defendants,  as  respects 
him,  were  carriers  for  hire.  But  as  it  seems  to  us,  in  no  view  of 
the  case  can  this  action  be  maintained.  If  the  plaintiff  was  by  the 
contract  of  service  to  be  carried  by  the  defendants  to  the  place  for 
his  labor,  then  the  injury  was  received  while  engaged  in  the  service 
for  which  he  was  employed,  and  so  falls  within  the  ordinary  cases 
of  servants  sustaining  an  injury  from  the  negligence  of  other  ser- 
vants. If  it  be  not  properly  inferable  from  the  evidence  that  the 
contract  between  the  parties  actually  embraced  this  transportation 
to  the  place  of  labor,  it  leaves  the  case  to  stand  as  a  permissive 
privilege  granted  to  the  plaintiff,  of  which  he  availed  himself,  to 
facilitate  his  labors  and  service,  and  is  equally  connected  with  it, 
and  the  relation  of  master  and  servant,  and  therefore  furnishes  no 
ground  for  maintaining  this  action. 

How  does  the  case  differ  from  that  suggested  at  the  argument  by 


910  CARRIERS    OF   PASSENGERS. 

the  counsel  for  the  defendants,  who  supposed  a  case  where  the  busi- 
ness for  which  the  party  is  employed  is  that  of  cutting  timber,  01 
standing  wood,  and  the  servant  receives  an  injury  in  his  person  on 
the  way  to  the  timber-lot,  by  the  overturning  of  the  vehicle  in  which 
he  is  carried,  by  the  negligence  or  careless  driving  of  another  ser- 
vant? There  is  no  liability  on  the  part  of  the  master  in  such  a 
case. 

It  seems  to  the  court,  that  upon  the  evidence  offered  in  the  present 
case,   the  plaintiff  was  not  entitled  to  a  verdict,  and  the  nonsuit 

should  stand. 

Plaintiff  nonsuit.1 


d.    For  Compensation. 

TARBELL   v.    CENTRAL   PACIFIC   R.    CO. 

34  Cal.  616.     1868. 

[Action  to  recover  damages  for  wrongful  ejection  from  train.] 
On  the  trial,  which  was  by  the  court  with  a  jury,  plaintiff  proved 
(the  defendant  objecting  and  excepting  thereto  for  irrelevancy  and 
incompetency)  that  while  on  the  defendant's  moving  train  of  pas- 
senger cars,  at  a  point  about  five  miles  from  Auburn,  towards  Colfax, 
he  having  entered  the  train  at  Auburn,  he  tendered  to  the  conductor 
of  the  train,  upon  the  usual  demand  being  made  of  him  for  his  ticket 
or  fare,  the  legal  passenger  fare  chargeable  between  the  Auburn  and 
Colfax  railroad  stations,  in  the  legal  tender  notes  of  the  United 
States.  The  conductor  refused  to  accept  the  payment  so  tendered, 
and  demanded  that  it  be  made  in  the  gold  or  silver  coin  of'  the 
United  States,  and  on  the  failure  and  refusal  of  plaintiff  to  make 
the  payment  as  required,  caused  the  train  to  be  stopped  and  plaintiff 
to  be  ejected  therefrom.  Plaintiff  had  a  verdict  and  judgment  for 
five  hundred  dollars  damages.  The  defendant  moved  for  a  new 
trial  upon  a  settled  statement  of  the  evidence  and  rulings  of  the 
court  on  demurrer  and  the  admission  of  evidence,  on  grounds  of 
alleged  error  in  law  occurring  at  the  trial,  that  the  verdict  and  judg- 
ment were  against  law,  and  that  the  verdict  was  excessive.  The 
motion  was  denied,  and  defendant  appealed  from  the  judgment  and 
the  order  of  the  court  denying  a  new  trial. 

1  That  an  employee  riding  free,  but  not  in  the  prosecution  of  his  employment, 
is  a  passenger,  see  McNulty  v.  Pennsylvania  R.  Co.,  182  Pa.  St.  479,  38  Atl.  R. 
524,  38  L.  R.  A.  376,  61  Am.  St.  R.  721  ;  Dickinson  v.  West  End  St.  R.  Co.  177 
Mass.  365,  59  N.  E.  R.  60,  52  L.  R.  A.  326,  83  Am.  St.  R.  284. 


WHO   DEEMED    PASSENGEES.  911 

Sandersox,  J.  In  actions  of  this  character  it  is  not  necessary 
that  the  plaintiff  should  allege  a  strictly  legal  tender  of  his  fare. 
It  was  so  held  in  the  case  of  Pickford  v.  The  Grand  Junction  Rail- 
way Company,  8  M.  &  Wels.  372.  It  is  sufficient  to  allege  that  he 
was  ready  and  willing,  and  offered  to  pay  the  defendant  such  sum 
of  money  as  it  was  legally  entitled  to  charge.  The  transportation 
and  payment  of  the  fare  are  contemporaneous  acts.  If  the  plaintiff 
was  ready  and  willing,  and  offered  to  pay  the  legal  fare  when 
demanded  by  the  conductor  of  the  train,  the  defendant  was  bound 
to  carry  him,  provided  there  was  room  in  the  cars  and  the  plaintiff 
was  a  fit  person  to  be  admitted.  This  results  from  the  natun 
the  defendant's  business,  which  makes  it  its  duty  to  receive  all  per- 
sons as  passengers  who  offer  to  become  such,  upon  their  offering  to 
pay  the  legal  fare.  Whenever  the  performance  of  a  duty  or  obliga- 
tion is  thus  cast  upon  the  one  party  in  consequence  of  a  contempo- 
raneous act  of  payment  by  the  other,  it  is  sufficient  if  the  latter  is 
ready  and  willing  to  pay  when  the  former  is  ready  to  undertake  the 
duty.     Eawson  v.  Johnson,  1  East,  203. 

The  complaint  in  this  case  might  have  been  drawn  with  more 
directness  and  precision  in  this  respect,  but  we  are  disposed  to  hold 
that  the  court  below  did  not  err  in  overruling  the  demurrer.  It 
would  have  been  more  certain  had  the  amount  of  the  fare  been  stated 
which  the  plaintiff  offered  to  pay,  and  that  the  person  to  whom  the 
offer  was  made  was  the  conductor  in  charge  of  the  train ;  but  we  are 
not'  prepared  to  say  it  is  not  sufficiently  certain  in  its  present  form. 

The  point  that  the  defendant  was  not  bound  to  carry  the  plaintiff 
because  the  fare  which  he  offered  to  pay  was  in  legal  tender  notes, 
is  not  tenable.  Conceding  that  a  statute  authorizing  defendant  to 
demand  coin  in  payment  of  fare  would  be  constitutional,  no  such 
statute  exists,  and  there  being  no  contract  in  writing  stipulating  for 
coin,  we  find  nothing  in  the  case  which  takes  it  out  of  the  operation 
of  the  Act  of  Congress  in  relation  to  legal  tender  notes.  Eailroad 
fares  are  not  taxes,  and  do  not  fall  within  the  rule  in  Perry  v 
Washburn,  20  Cal.  318. 

Whether  the  defendant  could  have  legally  exacted  payment  in 
coin  before  the  plaintiff  was  admitted  into  the  cars  and  the  journey 
commenced,  is  a  question  not  involved  in  this  case,  and  upon  which 
we  express  no  opinion.  Having  received  the  plaintiff  and  proceeded 
several  miles  upon  the  journey,  the  defendant  must  be  held  to  have 
consented  to  receive  in  payment  of  the  fare  any  good  and  lawful 
money  which  the  plaintiff  might  tender  when  called  upon  for  pay- 
ment. The  kind  of  money  to  be  paid  had  then  ceased  to  be  an  open 
question,  for  the  contract  was  already  made,  and  in  process  of 
performance. 

The  verdict,  however,  was  excessive.  No  special  damages  were 
alleged  or  proved.  It  is  not  pretended  that  this  is  a  case  for  puni- 
tive damages,  or  that  the  business  of  the  plaintiff  suffered  in  any 


912  CARRIERS    OF   PASSENGERS. 

way  by  reason  of  his  not  being  taken  to  Colfax.  It  does  not  appeal 
whether  the  plaintiff  proceeded  on  to  Colfax  or  returned  to  Auburn 
after  he  was  put  out  of  the  cars,  or,  whichever  he  did,  if  he  did 
either,  that  he  was  put  to  any  expense  in  doing  it.  Whether  the 
plaintiff  was  going  to  Colfax  upon  urgent  business  or  merely  for 
pleasure  is  not  shown.  In  short,  there  is  no  evidence  in  the  tran- 
script which  has  any  bearing  upon  the  question  of  damages  except 
the  naked  fact  that  he  was  put  out  of  the  cars  at  a  point  ten  or 
twelve  miles  from  the  place  of  his  destination,  and  about  five  from 
the  place  of  his  departure.  Such  being  the  only  evidence  bearing 
upon  the  question,  we  think  the  verdict  greatly  disproportionate  to 
the  injury  proved,  within  the  rule  in  Aldrich  v.  Palmer,  24  Cal.  513. 
A  new  trial  must  be  granted,  unless  the  plaintiff  elects,  within 
fifteen  days,  to  take  a  judgment  for  one  hundred  dollars,  which  sum 
we  think  amply  sufficient  compensation  for  the  injury  which  he 
sustained. 


WILTON   v.    MIDDLESEX  K.    CO. 
107  Mass.  108.     1871. 

Tort  for  personal  injuries  alleged  to  have  been  sustained  by  the 
plaintiff  through  the  negligence  of  defendant's  servant.  Defendant 
was  a  street  railroad  corporation. 

At  the  trial,  the  plaintiff  offered  to  prove  "that  on  July  16,  1868, 
at  which  time  she  was  nine  years  of  age,  she  went  out  about  seven 
o'clock  in  the  evening  to  walk;  that  she  was  in  company  with  four 
or  five  other  girls,  on  the  Charlestown  bridge,  and  near  the  draw, 
and  one  of  the  defendant's  cars  came  along  very  slowly  ;  that  there 
were  no  passengers  on  the  platform,  and  the  driver  beckoned  to  the 
girls  to  get  on,  and  they  accordingly  got  on  the  platform,  while  the 
car  was  going  slowly;  that  the  driver  then  struck  his  horses,  and 
they  started  on  a  fast  trot;  that  the  plaintiff  had  one  foot  on  the 
step,  and  by  reason  of  the  sudden  start  lost  her  balance;  that  she 
called  to  the  driver  to  stop,  but  the  car  kept  on,  and  she  fell  so  that 
one  of  the  wheels  passed  over  her  arm,  and  she  was  obliged  to  have 
it  amputated;  and  that  she  used  due  care  and  the  driver  was  care- 
less." It  was  admitted  that  the  driver  had  no  authority,  unless 
implied  from  his  position,  to  invite  persons  to  ride  free,  and  that 
defendant  was  not  a  passenger  for  hire.  Upon  the  plaintiff's  offer 
of  proof,  the  case  was  reserved  for  the  consideration  of  the  full 
court;  if  the  plaintiff  was  entitled  to  recover  thereon,  the  case  to 
stand  for  trial;  otherwise,  judgment  to  be  given  for  the  defendant. 

Morton,  J.  The  plaintiff  was  injured  while  riding  upon  one  of 
the  defendant's  cars.     At  the  trial  she  offered  to  prove  that  she  was 


WHO    DEEMED    PASSENGERS.  913 

in  the  exercise  of  due  care,  and  that  the  driver  of  the  car  was  rare- 
less.  For  the  purposes  of  this  hearing,  therefore,  we  are  to  assume 
that  she  was  injured  by  the  negligence  of  a  servant  of  the  defend- 
ants, in  the  course  of  his  employment;  and  that  her  own  want  of 
care  did  not  contribute  to  the  iujury.  It  follows,  that  sin-  can  main- 
tain this  action;  unless  we  sustain  the  position  taken  by  the  defend- 
ants, that  she  was  unlawfully  upon  the  car,  and,  therefore,  not 
entitled  to  recover. 

The  facts  which  the  plaintiff  offered  to  prove,  bearing  upon  this 
question,  are  as  follows:  The  plaintiff,  a  girl  of  nine  years  of  age, 
was  walking  with  several  other  girls  upon  the  Charlestown  bridge, 
about  seven  o'clock  in  an  evening  in  July.  One  of  the  defendant's 
cars  came  along  very  slowly,  and  the  driver  beckoned  to  the  girls 
to  get  on.  They  thereupon  got  upon  the  front  platform.  It  w 
admitted  that  the  plaintiff  was  not  a  passenger  for  hire,  and  that 
the  driver  had  no  authority  to  take  the  girls  upon  the  car  and  carry 
them,  unless  such  authority  is  to  be  implied  by  the  fact  of  his 
employment  as  a  driver. 

Upon  these  facts,  it  is  clear  that  it  would  be  competent  for  the 
jury  to  find  that  the  beckoning  by  the  driver  was  intended  and 
understood  as  an  invitation  to  the  plaintiff  to  get  upon  the  car  and 
ride.  In  accepting  this  invitation  and  getting  upon  the  car,  we 
think  she  was  not  a  trespasser,  there  being  no  evidence  of  collusion 
between  her  and  the  driver  to  defraud  the  corporation. 

A  master  is  bound  by  the  acts  of  his  servants  in  the  course  of 
his  employment.  They  are  deemed  to  be  the  acts  of  the  master. 
Kamsden  v.  Boston  &  Albany  Eailroad  Co.,  104  Mass.  117,  and  cases 
cited.  The  driver  of  a  horse-car  is  an  agent  of  the  corporation,  hav- 
ing charge,  in  part,  of  the  car.  If,  in  violation  of  his  instructions, 
he  permits  persons  to  ride  without  pay,  he  is  guilty  of  a  breach  of 
his  duty  as  a  servant.  Such  act  is  not  one  outside  of  his  duties, 
but  is  an  act  within  the  general  scope  of  his  agency,  for  which  he  is 
responsible  to  his  master.  In  the  case  at  bar,  the  invitation  to  the 
plaintiff  to  ride  was  an  act  within  the  general  scope  of  the  driver's 
employment,  and  if  she  accepted  it  innocently  she  was  not  a  tres- 
passer. It  is  immaterial  that  the  driver  was  acting  contrary  to  his 
instructions. 

■  It  follows,  that  the  plaintiff  being  lawfully  upon  the  car,  though 
she  was  a  passenger  without  hire,  is  entitled  to  recover,  if  she  proves 
that  she  was  using  due  care  at  the  time  of  the  injury  and  that  she 
was  injured  by  the  negligence  of  the  driver.  Philadelphia  &  Beading 
Railroad  Co.  v.  Derby,  14  How.  468,  483. 

In  the  present  aspect  of  the  case,  we  are  not  called  upon  to  con- 
sider to  what  extent  the  defendants  might  be  held  liable  if  it  were 
shown  that  the  plaintiff  was  unlawfully  riding  upon  the  car. 

Casr  to  stand  for  triac 


914  CARRIERS   OF    PASSENGERS. 

WATERBURY   v.  NEW   YORK   CENTRAL,    etc.,   R.   CO. 
17  Fed.  Rep.  (U.  S.  C.  C.)  671.     1883. 

Wallace,  J.  The  plaintiff  sued  for  personal  injuries  sustained, 
as  he  alleged,  by  the  negligence  of  the  defendant,  and,  having 
recovered  a  verdict,  the  defendant  moves  for  a  new  trial.  The 
plaintiff  was  riding  on  an  engine  of  the  defendant,  when,  in  conse- 
quence of  a  misplaced  switch,  it  was  thrown  from  the  track,  and  he 
was  injured.  There  was  no  evidence  on  the  trial  of  any  express 
contract  between  the  parties  creating  the  relation  of  passenger  and 
carrier,  but  it  appeared  that  on  various  prior  occasions  the  plaintiff 
and  other  drovers  whose  cattle  were  being  transferred  from  West 
Albany  to  East  Albany  by  the  defendant,  had  been  permitted  by  the 
employees  of  the  defendant  to  accompany  their  cattle  by  the  same 
train,  —  sometimes  on  the  cars  of  the  cattle  train,  and  sometimes  on 
the  engine.  At  times  the  trains  were  delayed  between  these  points 
and  the  cattle  required  attention,  and  as  no  employee  of  the  defend- 
ant was  assigned  to  the  duty  of  looking  after  the  cattle,  it  seemed 
to  be  assumed  between  the  employees  of  the  defendant  and  the 
drovers  that  the  latter  should  look  after  their  own  cattle.  Upon 
the  occasion  in  question  the  plaintiff  and  another  drover  got  upon 
the  engine,  there  being  none  but  box-cars  on  the  train.  The  engineer 
inquired  if  they  had  cattle  on  the  train,  and  being  informed  that 
such  was  the  fact,  made  no  objection  to  their  riding  upon  the  engine. 
It  was  shown  for  the  defendant  that  its  rules  for  the  government  of 
its  employees  forbade  them  from  permitting  any  person  to  ride  upon 
the  engine. 

At  the  trial  it  was  left  to  the  jury  to  determine  as  questions  of 
fact  whether  the  plaintiff  was  a  trespasser  or  a  passenger;  whether 
there  was  negligence  on  the  part  of  the  defendant;  and  whether 
there  was  contributory  negligence  on  the  part  of  the  plaintiff.  The 
jury  were  instructed  in  substance  that  if  the  plaintiff  knew  he  was 
riding  upon  the  engine  in  contravention  of  the  rules  of  the  defend- 
ant he  was  a  trespasser,  and  in  that  case  the  defendant  was  not 
responsible  for  the  injury.  They  were  also  instructed  that  if  they 
found  he  was  riding  upon  the  engine  pursuant  to  an  implied  under- 
standing between  himself  and  the  defendant  that  he  should  accom- 
pany his  cattle  in  order  to  take  care  of  them  on  the  way,  he  was  a 
passenger;  and  that  if  he  was  a  passenger,  and  entitled  to  accom- 
modations as  such,  the  defendant  was  not  at  liberty  to  assert  that 
he  was  guilty  of  negligence  in  riding  upon  the  engine,  if  the 
defendant  had  provided  no  safer  place  for  him  to  ride. 

A  careful  examination  of  the  evidence  shows  quite  satisfactorily 
that  the  case  did  not  justify  the  assumption  in  any  aspect  of  it  that 


WHO   DEEMED    PASSEMi  «,]- 

the  plaintiff  was  entitled  to  be  carried  as  a  passenger,  as  an  imi 
condition  of  the  contract  to  carry  his  cattle.  The  most  that  can  be 
fairly  claimed  for  the  plaintiff  upon  the  evidence  is  that  In- 
riding  upon  the  engine  permissively.  If  he  was  riding  there  with 
the  consent  of  the  defendant,  express  or  implied,  it  is  not  matt-rial, 
so  far  as  it  affects  the  defendant's  liability  for  negligence,  whether 
he  was  there  as  a  matter  of  right  or  a  matter  of  favor,  —  as  a  pas- 
senger or  a  mere  licensee.  It  suffices  to  enable  him  to  maintain  an 
action  for  negligence  if  he  was  being  carried  by  the  defendant  volun- 
tarily. If  the  defendant  undertook  to  carry  him,  although  gratui- 
tously, and  as  a  mere  matter  of  favor  to  himself,  it  was  obligated  to 
exercise  due  care  for  his  safety  in  performing  the  undertaking  it 
had  voluntarily  assumed.  Philadelphia,  &c. ,  R.  Co.  v.  Derby,  14 
How.  468;  Steamboat  New  World  v.  King,  16  How.  469  [940].  "The 
carrier  does  not,  by  consenting  to  carry  a  person  gratuitously,  relieve 
himself  of  responsibility  for  negligence.  When  the  assent  to  his 
riding  free  has  been  legally  and  properly  given,  the  person  carried 
is  entitled  to  the  same  degree  of  care  as  if  he  paid  his  fare.  Todd 
v.  Old  Colony,  &c,  R.  Co.  3  Allen,  18.  As  is  tersely  stated  by 
Blackburn,  J.,  in  Austin  v.  Great  Western  Ry.  Co.  15  Weekly  Rep. 
86.3,  "the  right  which  a  passenger  by  railway  has  to  be  carried  safely 
does  not  depend  on  his  having  made  a  contract,  but  the  fact  of  his 
being  there  creates  a  duty  on  the  part  of  the  company  to  carry  him 
safely." 

The  real  question  in  the  case  was  lost  sight  of  upon  the  trial. 
That  question  was  whether  the  plaintiff  was  being  carried  upon  the 
engine  with  the  consent  of  the  defendant,  or  only  by  the  unauthorized 
permission  or  invitation  of  the  defendant's  employees.  This  ques- 
tion was  not  presented  by  the  exceptions  to  the  charge  or  by  the 
instructions  which  the  court  was  asked  to  give  to  the  jury.  But 
upon  the  theory  on  which  the  case  was  presented  the  jury  must  have 
found  that  the  plaintiff  had  a  right  to  be  carried  by  the  defendant  as 
an  implied  condition  of  the  contract  for  the  transportation  of  his 
cattle.  As  the  evidence  does  not  warrant  such  a  conclusion,  and  as 
the  real  question  in  the  case  has  not  been  passed  upon  by  the  jury. 
there  should  be  a  new  trial  upon  the  ground  of  misdirection,  although 
the  defendant's  exceptions  do  not  reach  the  error. 

It  should  have  been  left  to  the  jury  to  determine,  as  a  question 
of  fact,  whether  the  defendant  had  by  its  conduct  held  out  its 
employees  to  the  plaintiff  as  authorized,  under  the  circumstai 
to  consent  to  his  being  carried  on  the  train  with  his  cattle.  Un- 
doubtedly the  presumption  of  law  is  that  persons  riding  upon  trains 
of  a  railroad  carrier,  which  are  palpably  not  designed  for  the  trans- 
portation of  persons,  are  not  lawfully  there;  and  if  they  are  per- 
mitted to  be  there  by  the  consent  of  the  carrier's  employees,  the 
presumption  is  against  the  authority  of  the  employees  to  bind  the 
carrier  by  such  consent. 


916  CAERIERS   OF   PASSENGERS. 

In  Eaton  v.  D.,  L.  &  W.  E.  Co.,  57  N.  Y.  382,  it  is  held  that  the 
conductor  of  a  freight  train  has  no  authority  to  consent  to  the  carry- 
ing of  a  person  upon  a  caboose  attached  to  such  train,  but  designed 
for  the  accommodation  of  employees,  and  in  such  case  the  presump- 
tion is  that  the  person  carried  is  not  lawfully  there.  On  the  other 
hand,  this  presumption  may  be  overthrown  by  the  special  circum- 
stances, as  in  the  case  of  Ohio  &  Miss.  E.  Co.  v.  Muhling,  30  111. 
9,  where  the  plaintiff  was  riding  on  a  construction  train,  and  in  the 
cases  of  Eyan  v.  Cumberland  Valley  E.  Co.,  23  Pa.  St.  384  and  Gill- 
shannon  v.  Stony  Brook  Co.,  10  Cush.  228  [908],  where  the  plaintiff 
was  riding  on  a  gravel  train. 

So,  in  a  case  like  the  present,  where  the  railroad  carrier  may 
derive  some  benefit  from  the  presence  of  drovers  upon  its  cattle 
trains,  and  may  have  allowed  its  employees  in  charge  of  such  trains 
to  invite  or  permit  drovers  to  accompany  their  cattle,  the  presump- 
tion against  a  license  to  the  person  thus  carried  may  be  overthrown. 
It  should  have  been  left  to  the  jury  to  determine,  as  a  question  of 
fact,  whether,  notwithstanding  its  rules  for  the  government  of  its 
employees,  the  defendant  had  not  held  them  out  to  the  plaintiff  as 
having  authority  to  consent  to  his  being  carried.  If  it  should  appear 
that  its  employees  have  been  accustomed  to  allow  drovers  to  accom- 
pany their  cattle  on  the  cattle  trains  so  generally  and  constantly 
that  the  officers  of  the  company  must  have  known  it,  the  consent  of 
the  company  may  be  predicated  upon  acquiescence  and  ratification. 

A  new  trial  is  granted. 


DUFF  v.    ALLEGHANY  VALLEY   E.    CO. 

91  Penn.  St.  458.     1879. 

Per  Curiam.  This  was  an  action  by  a  parent  to  recover  damages 
for  the  death  of  her  son  on  account  of  the  alleged  negligence  of  the 
defendants.  It  is  clear,  from  the  evidence,  that  the  boy  was  on  the 
train  from  day  to  day,  not  as  a  passenger  or  employee  of  the  com- 
pany, but  by  the  connivance  of  the  conductor,  in  order  to  sell  news- 
papers. It  is  not  like  a  person  allowed  by  the  conductor  to  ride  in 
a  car  as  a  passenger  without  paying  fare.  In  that  case  there  is  a 
legal  liability  to  the  company  for  the  fare.  This  is  the  case  of  a 
mere  trespasser,  and  the  company  owed  him  no  duty.  We  are  of 
opinion  that  the  rulings  of  the  learned  judge  below  were  right. 

Judgment  affirmed. 


WHO   DEEMED   PASSENGERS.  917 


ST.   JOSEPH,    etc.,  R.    CO.   v.    WHEELER. 
35  Kan.  185.     1886. 

Action  by  De  Witt  C.  Wheeler,  as  administrator  of  the  estate  of 
Frank  Wheeler,  deceased,  against  The  Railroad  Company,  to  recover 

damages  for  the  benefit  of  the  next  of  kin  of  the  decedent,  whose 
death  is  alleged  to  have  been  caused  by  the  negligence  of  the 
defendant.  Trial  at  the  December  Term,  1884,  and  judgment  for 
plaintiff  for  $  1500.  The  company  brings  the  case  here.  The  mate- 
rial facts  are  stated  in  the  opinion. 

Johnston,  J.  De  Witt  C.  Wheeler,  as  administrator  of  the  est 
of  Frank  Wheeler,  deceased,  brought  this  action  under  §  422  of  t In- 
Civil  Code,  to  recover  damages  for  the  benefit  of  the  next  of  kin  of 
Frank  Wheeler,  whose  death,  it  is  alleged,  was  caused  by  the  gross 
carelessness  and  negligence  of  the  St.  Joseph  &  Western  Railroad 
Company.  There  was  but  little  dispute  concerning  the  facts  of  the 
case.  On  June  17,  1881,  the  defendant  below  was  operating  a  rail- 
road which  runs  from  Elwood  westward  through  Doniphan  and  other 
counties  of  Kansas  to  Grand  Island,  Nebraska.  On  that  day  a  work 
or  construction  train  with  a  caboose  car  attached,  was  sent  from 
Elwood  to  a  point  near  Troy,  for  the  purpose  of  being  loaded  with 
dirt  to  be  brought  back  for  the  repair  of  the  road-bed  between 
Wathena  and  Elwood,  with  instructions  to  work  until  ten  o'clock 
in  the  morning  without  regard  to  train  No.  7,  a  freight  train  going 
west.  While  the  train  was  being  loaded,  Frank  Wheeler,  in  com- 
pany with  another  boy,  came  up  to  the  construction  train,  and  learn- 
ing that  it  was  soon  going  eastward,  asked  the  conductor  if  he  might 
ride  back.  The  conductor  consented,  and  Frank  Wheeler  rode  in  the 
caboose  car  with  other  persons  that  belonged  to  the  train.  He  paid 
no  fare,  and  was  not  asked  or  expected  to  pay  any.  Soon  after  he  was 
taken  on,  the  construction  train  backed  eastwardly  toward  Wathena, 
and  before  reaching  that  place,  and  at  9.45  a.m.  of  that  day,  it  col- 
lided with  the  engine  of  train  No.  7  going  westward,  in  which  col- 
lision Frank  Wheeler  was  killed.  The  conductor  of  the  construction 
train  had  instructions  from  the  railroad  company  not  to  allow  per- 
sons as  passengers  to  ride  upon  his  train  except  those  who  belonged 
to  it,  but  this  instruction  was  not  communicated  to  Frank  Wheeler. 
Upon  these  and  some  other  facts  which  were  shown  upon  the  trial, 
a  verdict  for  $1500  was  given  in  favor  of  the  plaintiff. 

One  of  the  questions  raised  is,  that  there  was  no  correspondence 
between  the  pleadings  and  the  evidence.  The  point  is  made  that 
the  plaintiff  alleged  that  Frank  Wheeler  was  a  passenger, —  a  term 
which  it  is  claimed  implied  that  Frank  AYheeler  was  travelling  in  a 


918  CAERIERS    OF   PASSENGERS. 

public  conveyance  by  virtue  of  a  contract,  express  or  implied,  with 
the  carrier,  as  the  payment  of  fare,  or  that  which  is  accepted  as  an 
equivalent  therefor,  while  the  evidence  offered  showed  that  he  was 
carried  on  a  train  not  designed  for  passengers,  that  no  fare  was  col- 
lected or  expected  to  be  paid,  and  therefore  that  he  did  not  stand 
toward  the  company  in  the  relation  of  a  passenger.  This  is  one 
sense  in  which  the  term  is  used,  but  not  the  only  one.  It  is  com- 
monly applied  to  any  one  who  travels  in  a  conveyance,  or  who  is 
carried  upon  a  journey,  irrespective  of  the  character  of  the  convey- 
ance or  of  compensation  to  the  carrier.  While  the  plaintiff  alleged 
that  Wheeler  was  carried  as  a  passenger,  he  nowhere  averred  that 
he  was  carried  for  hire,  nor  can  it  be  said  that  the  petition  was 
framed  upon  the  theory  that  there  was  a  contract  relation  between 
deceased  and  the  company.  It  was  rather  upon  the  theory  that  he 
was  not  a  trespasser  upon  the  defendant's  train,  and  it  is  specially 
alleged  that  he  was  upon  the  train  with  the  knowledge  and  consent 
of  the  conductor.  From  this  averment  it  is  manifest  that  the 
pleader  did  not  rely  upon  any  agreement  between  the  company  and 
Wheeler,  and  did  not  intend  to  hold  the  company  to  extraordinary 
care,  as  it  would  be  held  in  carrying  persons  who  were  passengers 
in  a  strictly  legal  sense;  but  rather,  that  as  Wheeler  was  upon  the 
train  with  the  consent  of  the  conductor,  he  was  not  wrongfully 
there,  and  the  company  owed  him  the  duty  of  ordinary  care.  The 
action  was  founded  upon  the  neglect  of  the  company  and  not  upon 
the  breach  of  a  contract;  and  allegations  of  the  relation  which  he 
occupied  toward  the  company  are  only  material  for  the  purpose  of 
determining  and  fixing  the  grade  of  care  owing  to  him  by  the  com- 
pany. As  we  interpret  the  petition,  it  did  not  allege  that  the  rela- 
tion of  carrier  and  passenger  existed  by  reason  of  an  agreement 
between  the  deceased  and  the  company,  and  therefore  that  there  was 
no  substantial  variance  between  the  pleadings  and  the  evidence. 

A.  series  of  instructions  were  prepared  by  the  railroad  company 
and  disallowed  by  the  court,  and  their  refusal  is  assigned  as  error. 
Most  of  them  in  effect  instructed  a  verdict  in  favor  of  the  defendant, 
and  asserted  that  the  company  cannot  be  held  liable  for  injury  to 
one  who  rides  upon  a  construction  train  with  the  consent  of  the  con- 
ductor, and  who  is  not  a  passenger  in  the  ordinary  sense.  They 
were  properly  refused.  We  concur  with  the  view  of  the  law  taken 
by  the  trial  judge  where  he  states  that:  — 

"  Under  the  admitted  facts  and  the  evidence  in  the  case  the  said 
Frank  Wheeler  was  not  a  trespasser  upon  the  defendant's  train, 
although  he  was  not  in  legal  contemplation  a  passenger.  A  com- 
mon carrier  of  passengers  is  bound  to  exercise  extraordinary  care  • 
towards  its  passengers,  and  is  liable  for  slight  negligence,  but  it 
does  not  owe  the  same  degree  of  care  to  a  person  on  one  of  its 
vehicles  or  trains,  who  does  not  stand  in  the  relation  of  a  passenger. 
To  such  persons  a  carrier  owes  only  the  duty  of  ordinary  care,  which 


WHO   DEEMED   PASSENGERS. 

is  that  degree  of  care  which  persons  of  ordinary  prudence  would 
usually  exercise  under  like  circumstances." 

It  is  contended  that  Frank  Wheeler   was  an   intruder   upon   tin- 
train,  for  whose  injury  no  liability  could  arise  against  the  company, 
for  two  reasons:  First,  that  the  conductor  had  instructions  n<  I 
carry  passengers  on  the  construction  train;  and  second,  that  i. 
the  nature  of  the  business  which    was  being   done  with  the  train, 
and  also  its  equipment,  it  was  apparent  that  the  company  did 
permit  passengers  to  be  carried  thereon.      Neither  of  these  circum- 
stances will  defeat  a  recovery  in  this  ease.     It  is  true  the  condi 
had  been  instructed  not  to  allow  persons  to  ride  upon  his  train  as 
passengers,  but  Frank  Wheeler  had  no  knowledge  of  such    insl 
tion.     He  had  asked  and  obtained  permission  to  ride  upon  the  train. 
It  was  within  the  range  of  the  employment  of  the  conductor  to  grant 
such  permission.     He  had  entire  charge  of  the  train,  and  was  the 
general  agent  of  the  company  in  the  operation  of  the  train.     As  he 
was  the  representative  of  the  company,  his  act,  and  the  permission 
given  by  him,  may  properly  be  regarded  as  the  act  of  the  company. 
If  Wheeler  had  furtively  entered  upon  the  train,  or  had  ridden  after 
being  informed  that  the   rules   of  the  company  forbade  it,  or  had 
obtained   permission  only   from   the   engineer,    brakeman,   or  some 
other  subordinate  employee,  the  argument  made  by  counsel  might 
apply. 

In  Dunn  v.  Grand  Trunk  Ely.,  58  Me.  187,  the  plaintiff  went  mi 
board  a  freight  train  with  the  knowledge  of  the  conductor.  One  of 
the  regulations  of  the  company  prohibited  conductors  from  allowing 
passengers  to  travel  upon  its  freight  trains.  He  was  not  directed  or 
requested  to  leave,  but  paid  the  usual  fare  to  the  conductor  and 
during  the  journey  the  car  upon  which  he  rode  was  thrown  from 
the  track  and  he  was  thereby  injured.  The  court  held  that  under 
the  circumstances  he  had  aright  to  suppose  himself  rightfully  on 
board,  and  that  if  the  act  of  the  passenger  did  not  conduce  to  the 
injury  received,  the  company  was  responsible  for  the  consequei 
of  its  negligence  or  want  of  care.  C.  &  A.  Rid.  Co.  /■.  Michie, 
Adm'x,  83  111.  427,  was  an  action  by  the  administratrix  to  recov<  t 
damages  for  the  death  of  her  husband,  which  occurred  while  he  was 
riding  upon  an  engine.  The  rules  of  the  company  provided  that 
no  persons  except  the  road  master  and  conductor  of  the  train  were 
allowed  to  ride  on  the  engine  without  the  permission  of  tin'  super- 
intendent or  master  mechanic.  He  applied  to  the  engine  driver  and 
was  given  permission  to  ride.  It  was  ruled  that  the  driver  of  the 
engine  occupied  only  a  subordinate  position,  and  that  his  pen 
sion  was  not  the  permission  of  the  company,  as  he  hail  no  pow< 
give  it ;  but  it  was  added  that  — 

"Had  the  conductor  of  the  train  given  the  permission,  or  knowing 
the  deceased  was  upon  the  engine  suffered  him  there  to  remain,  it 
might  be  considered  the  act  of  the  company,  as  the  conductor  ha*> 


920  CAKRIERS    OF   PASSENGERS. 

control  of  the  entire  train,  and  his  act  is  rightfully  regarded  as  the 
act  of  the  company." 

In  the  case  of  Wilton  v.  Middlesex  Eld.  Co.,  107  Mass.  108  [912], 
several  young  girls  were  invited  by  the  driver  to  ride  upon  one  of 
the  defendant's  cars.  They  got  upon  the  front  platform,  and  the 
driver  immediately  struck  his  horses,  when,  by  reason  of  their  sud- 
denly starting,  the  plaintiff  lost  her  balance  and  fell  so  that  one  of 
the  wheels  passed  over  her  arm.  It  was  admitted  that  the  plaintiff 
was  not  a  passenger  for  hire,  and  that  the  driver  had  no  authority  to 
take  the  girls  upon  the  car  unless  such  authority  was  implied  from 
the  fact  of  his  employment  as  driver.     In  deciding  the  case  the  court 

said:  — 

"  The  driver  of  a  horse-car  is  the  agent  of  the  corporation  having 
charge  in  part  of  the  car.  If,  in  violation  of  his  instructions,  he 
permits  persons  to  ride  without  pay,  he  is  guilty  of  a  breach  of  his 
duty  as  a  servant.  Such  act  is  not  one  outside  of  his  duty,  but  is 
one  within  the  general  scope  of  his  agency,  for  which  he  is  respon- 
sible to  his  master.  In  the  case  at  bar,  the  invitation  to  the  plain- 
tiff to  ride  was  an  act  within  the  general  scope  of  the  driver's 
employment,  and  if  she  accepted  it  innocently,  she  was  not  a  tres- 
passer. It  is  immaterial  that  the  driver  was  acting  contrary  to  his 
instructions." 

In  Lucas  v.  Milwaukee  &  St.  P.  Ely.  Co.,  33  Wis.  53,  it  was  held 
that  if  a  person  rode  upon  a  freight  train  without  authority  from 
some  person  competent  to  give  it,  he  would  have  been  unlawfully 
there,  and  could  not  have  successfully  enforced  the  rights  of  a  pas- 
senger against  the  company,  but  the  company  had  authorized  the 
carriage  of  passengers  upon  some  of  its  freight  trains,  and  therefore 
a  different  ruling  was  applied.     It  was  stated  that  — 

"By  making  a  portion  of  its  freight  trains  lawful  passenger  trains, 
the  defendant  has,  so  far  as  the  public  is  concerned,  apparently  given 
the  conductors  of  all  its  freight  trains  authority  to  carry  passengers, 
and  if  any  such  conductor  has  orders  not  to  carry  passengers  upon 
his  train,  they  are  or  may  be  in  the  nature  of  secret  instructions 
limiting  and  restricting  his  apparent  authority,  and  third  persons 
are  not  bound  by  such  instructions  until  informed  thereof." 

In  support  of  the  same  view,  we  cite  Jacobus  v.  St.  Paul  &  Chicago 
Ely.  Co.,  20  Minn.  125  [1023]  ;  O.  &  M.  Eld.  Co.  v.  Muhling,  30  111. 
9;  Gradin  v.  St.  Paul  &  Duluth  Ely.  Co.,  30  Minn.  217;  11  Am. 
and  Eng.  Eld.  Cases,  644;  Lawson  v.  C.  St.  P.  M.  &  O.  Eld.  Co., 
21  Am.  and  Eng.  Eld.  Cases,  249. 

Eaton  v.  D.  &  L.  W.  Eld.  Co.,  57  N.  Y.  383,  is  relied  upon  as  an 
authority  for  the  position  assumed  by  the  company.  The  circum- 
stances of  that  case  are  not  like  the  one  before  us,  and  the  decision 
is  based  on  the  special  circumstances  of  the  case.  It  differs  mate 
rially  in  its  facts  from  the  one  at  bar.  There,  the  party  injured  was 
invited  by  the  conductor  to  ride  upon  a  freight  train  with  the  promise 


WHO   DEEMED    PASSENGERS.  ((_>[ 

to  get  him  employment  as  a  brakeman;  and,  besides,  it  did  not 
appear  that  passengers  were  either  habitually  or  occasionally  per- 
mitted to  ride  upon  the  freight  trains  of  that  company.  Here, 
although  disputed,  it  was  satisfactorily  shown  that  pa  rs  were 

not  only  occasionally  but  commonly  carried  upon  the  freight  a 
construction  trains  of  the  defendant.  A.  J.  Shuster,  who  was 
employed  upon  the  construction  train  at  the  time  that  Frank 
Wheeler  was  killed,  testified  that  passengers  were  carried  upon  that 
train  under  certain  circumstances.  Albert  Hinchman,  who  had 
been  on  the  train  three  or  four  months,  stated  that  the  company 
had  always  carried  passengers  on  all  its  freight  trains  while  he  was 
upon  the  road,  and  the  passengers  had  frequently  ridden  on  the  con- 
struction train,  and  had  frequently  been  taken  on  at  points  othei 
than  stations  where  the  train  was  at  work.  Henry  Wheeler  si  i 
that  prior  to  the  accident  he  rode  upon  the  construction  train  to 
Wathena,  and  paid  fare  to  the  conductor  for  such  ride.  A.  J. 
Mo  wry,  who  travelled  a  great  deal  upon  defendant's  road,  testified 
that  it  was  usual  to  carry  passengers  on  all  caboose  cars;  that  he 
rode  on  every  kind  of  train  that  was  ever  on  the  road,  and  had  ridden 
on  defendant's  construction  trains  before  June  17,  1881,  and  paid 
fare  to  the  conductor.  It  will  thus  be  seen  that  it  was  customary 
for  passengers  to  ride,  with  the  permission  of  the  conductor,  upon 
all  freight  and  construction  trains  upon  the  defendant's  road;  and 
the  New  York  case,  while  similar  in  some  of  its  features,  is  not  an 
authority  here.  Persons  not  informed  of  the  instructions  given  to 
the  conductor,  had  a  right,  under  this  prevailing  practice,  to  assume 
that  the  conductor  had  authority  to  carry  passengers  on  the  construc- 
tion train,  and  that  the  granting  of  permission  by  him  in  such  cases 
fell  within  his  general  authority  as  manager  of  the  train.  Nor  was 
there  anything  in  the  exterior  appearance  of  the  car  in  which  the 
deceased  rode  to  notify  him  that  passengers  were  not  carried  tin  rein. 
The  testimony  is  that  it  was  a  caboose  car  similar  in  construction 
and  appearance  to  those  which  were  attached  to  all  of  defendants' 
freight  trains,  and  upon  which,  as  has  been  seen,  passengers  were 
carried. 

The  railroad  company  asked  an  instruction  that  if  the  father  of 
Frank  Wheeler  had,  prior  to  the  accident,  relinquished  unto  him 
the  right  to  his  time  and  services  during  his  minority,  and  that  this 
relinquishment  was  unrevoked  at  his  death,  the  plaintiff  can  recover 
only  nominal  damages.  It  was  properly  rejected.  In  such  an  action 
the  plaintiff  does  not  sue  for  his  own  benefit,  but  only  as  the  per- 
sonal representative  of  the  deceased.  The  damages  recovered  inure 
to  the  exclusive  benefit  of  the  widow  and  children  if  there  are  any, 
and  if  not,  to  the  next  of  kin.  In  this  case  the  damages  were  for 
the  benefit  of  the  next  of  kin,  who  were  the  father  and  the  mother. 

The  sum  to  be  recovered  was  therefore  not  for  the  benefit  of  the 
father  alone,  who  may  have  made  the  relinquishment,  but  for  the 


922  CARRIERS    OF   PASSENGERS. 

mother  also.  Besides,  parents  may  recover  for  the  death  of  a  child 
who  has  attained  his  majority  if  they  can  prove  any  pecuniary 
damages  resulting  therefrom,  such  as  the  loss  of  support.  In  esti- 
mating the  pecuniary  beuefit  which  would  accrue  to  his  parents  by 
the  continuance  of  his  life,  the  fact  that  the  parents  relinquished  to 
Frank  Wheeler  his  time  and  services  during  his  minority  was  an 
element  which  might  properly  be  taken  into  consideration,  and  this 
much  was  stated  to  the  jury. 

None  of  the  other  objections  raised  are  at  all  tenable,  and  as  the 
charge  given  fairly  presented  the  law  of  the  case  to  the  jury,  the 
errors  assigned  will  be  overruled,  and  the  judgment  will  be  affirmed. 


TOLEDO,    etc.,    R.    CO.   v.   BROOKS. 
81  111.  245.     1876. 

This  was  an  action  on  the  case,  by  Julia  A.  Brooks,  administra- 
trix of  the  estate  of  William  H.  Brooks,  deceased,  against  the 
Toledo,  Wabash  and  Western  Railway  Company ,  to  recover  damages 
for  causing  the  death  of  plaintiff's  husband  and  intestate,  through 
negligence.  A  trial  was  had,  resulting  in  a  verdict  and  judgment 
in  favor  of  plaintiff,  for  $3166. 

Mr.  Justice  Walker 

It  is  urged  that  the  court  erred  in  refusing  to  give  the  ninth  or 
some  one  of  the  other  instructions  asked  by  plaintiff  in  error,  but 
refused  by  the  court.  That  instruction  asserts  that  if  deceased 
knew  that  the  regulations  of  the  company  prohibited  persons  from 
travelling  on  the  road  without  a  ticket  or  the  paying  of  fare,  and  if, 
after  being  so  informed,  he  went  on  the  train,  and  by  arrangement 
with  the  conductor,  was  travelling  without  a  ticket  or  paying  his 
fare,  deceased,  in  such  case,  would  not  be  a  passenger,  and  the 
company  would  not  be  liable  for  the  negligence  of  their  officers. 
In  some  form,  all  these  refused  instructions  present  this  question. 

Defendant  in  error  insists  that  this  case  is  governed  by  that  of 
The  Ohio  and  Mississippi  Railroad  Co.  v.  Muhling,  30  111.  9.  In 
that  case  the  passenger  had  been  in  the  employment  of  the  road, 
and  was  neither  prohibited  from  getting  on  the  train,  nor  informed 
that  it  was  against  the  rules  for  him  to  do  so  without  a  ticket  or  the 
payment  of  fare.  Again,  the  company,  in  that  case,  seems  to  have 
owed  the  plaintiff  for  labor,  which  would  have  enabled  them  to 
deduct  the  amount  of  fare  from  the  amount  owing  him.  It  was 
there  said,  that  if  a  person  was  lawfully  on  the  train,  and  injuries 
ensued  from  the  negligence  of  the  employees  of  the  company,  the 
passenger  thus  injured  might  recover. 


WHO   DEEMED    PASSENGERS.  923 

On  the  part  of  plaintiff  in  error  it  is  urged  that  railroad  com- 
panies, being  liable  for  the  want  of  care  of  their  officers  by  which 
passengers  suffer  injury,  must  have  the  power  to  make  all   1 
able  regulations  for  the   government  of  their  emplo;  ind  the 

power  to  enforce  them;  that  is  a  reasonable  regulation  which  pro- 
hibits persons  from  travelling  upon  their  roails  without  purchasing 
a  ticket  or  paying  fare;  that  a  person  going  on  their  road  in  kin 
violation  of  such  a  rule,  and  by  inducing  the  conductor  to  violate  it, 
is  not  lawfully  on  the  road,  and  the  company  should  not  be  held 
responsible  for  an  injury  received  by  such  person;  that  where  a  per- 
son actively  participates  in  the  violation  of  such  a  rule  intentionally 
and  knowingly,  he  does  not  occupy  the  same  relation  to  the  1 
as  had  he  not  known  of  the  rule  or  not  done  any  act  to  induce  its 
violation. 

It  is  manifest  that  if  a  person  were  stealthily,  and  wholly  with- 
out the  knowledge  of  any  of  the  employees  of  the  company,  to 
upon  a  train  and  secrete  himself,  for  the  purpose  of  passing  from 
one  place  to  another,  he  could  not  recover  if  injured.  In  such  a 
case  his  wrongful  act  would  bar  him  from  all  right  to  compensation. 
Then,  does  the  act  of  the  person  who  knowingly  induces  the  con- 
ductor to  violate  a  rule  of  the  company,  and  prevails  upon  him  to 
disregard  his  obligations  to  fidelity  to  his  employer,  to  accomplish 
the  same  purpose,  occupy  a  different  position,  or  is  he  entitled  to  any 
more  rights?  He  thereby  combines  with  the  conductor  to  wrong 
and  defraud  his  employer  out  of  the  amount  of  his  fare,  and  for  his 
own  profit.  In  this  case  the  evidence  tends  strongly  to  show  that 
both  defendant  in  error  and  her  husband  had  money  more  than 
sufficient  to  pay  their  fare  to  Danville,  and  a  considerable  distance 
beyond  that  place.  If  this  be  true,  and  defendant  in  error  swears 
they  had,  then  they  were  engaged  in  a  deliberate  fraud  on  the  com- 
pany, no  less  than  by  false  representations  to  obtain  their  pass 
free  from  Decatur  to  Danville,  and  thus  defraud  the  company  out  of 
the  sum  required  to  pay  their  fare.  In  this  there  is  a  broad  distinc- 
tion from  Muhling's  case,  as  in  that  case  there  was  no  pretence  of 
fraud  or  wrong  on  his  part.  The  court  below  should  have  given 
some  one  of  the  defendant's  instructions  which  announced  the  view 
here  expressed. 

The  evidence  is  not  of  the  character  to  convince  us  that  the  judg- 
ment should  stand,  notwithstanding  the  erroneous  instructions  given 
or  the  refusal  to  give  proper  instructions.  We  have  no  doubt  that 
the  erroneous  instructions  given  misled  the  jury  in  finding  then 
verdict. 

For  the  errors  indicated,  the  judgment  of  the  court  below  must  K 
reversed  and  the  cause  remanded. 


924  CAEKIEES   OF   PASSENGERS. 


WAY   v.    CHICAGO,    etc.,  R.    CO. 
64  Iowa,  48.     1884. 

The  plaintiff  is  the  administrator  of  the  estate  of  John  Way, 
deceased.  The  action  was  brought  by  the  decedent.  After  his 
death  the  present  plaintiff  was  substituted.  The  plaintiff  claims  to 
recover  for  a  personal  injury  alleged  to  have  been  received  by  the 
decedent  as  a  passenger  on  one  of  defendant's  trains,  and  by  being 
thrown  against  a  cupola  platform,  by  defendant's  negligence  in 
making  a  coupling.  There  was  a  trial  to  a  jury,  and  verdict  and 
judgment  were  rendered  for  the  plaintiff.     The  defendant  appeals. 

Adams,  J.  In  April,  1881,  the  decedent  took  passage  upon  a 
freight  train  at  Monroe,  Jasper  County,  for  Oskaloosa.  In  payment 
of  his  fare,  he  presented  a  mileage  ticket,  which  had  been  issued  to 
one  R.  G.  Forgrave,  at  commutation  rates.  The  conductor  of  the 
train,  without  knowledge  that  Way  was  not  Forgrave,  detached  the 
coupons  for  his  passage.  Printed  upon  the  ticket  were  several  con- 
ditions, and  also  a  printed  acceptance  of  the  conditions,  which  was 
signed  by  Forgrave,  and  the  whole  was  denominated  a  contract. 
One  of  the  conditions  is  in  these  words :  "  This  ticket  is  positively 
not  transferable,  and,  if  presented  by  any  other  than  the  person 
whose  name  appears  on  the  inside  of  the  cover,  and  whose  signature 
is  attached  below,  it  is  forfeited  to  the  company." 

The  defendant's  theory  upon  the  trial  below  was,  that  the  dece- 
dent was  not  a  passenger  within  the  meaning  of  the  law,  and  asked 
the  court  to  instruct  accordingly.  This  the  court  refused  to  do,  and 
gave  an  instruction  in  these  words :  "  If  you  find  from  the  evidence 
that  the  decedent  was  injured  to  the  damage  of  his  estate  substan- 
tially as  alleged,  and  that  he  was  at  that  time  riding  in  a  caboose  in 
the  defendant's  train,  on  the  mileage  ticket  in  evidence,  issued  by 
the  defendant  to  R.  G.  Forgrave,  and  that,  upon  its  presentation  in 
payment  for  transportation,  the  conductor  of  the  train  accepted  the 
ticket,  and  recognized  and  treated  the  decedent  as  a  passenger,  the 
defendant's  duties  and  obligations  were,  and  its  liabilities  now  are, 
the  same  as  if  the  ticket  had  been  issued  to  the  decedent,  whether 
prior  to  the  accident  he  disclosed  to,  or  the  conductor  knew,  his 
identity  or  not." 

In  respect  to  the  measure  of  care  which  common  carriers  owe  to 
passengers,  the  court  gave  an  instruction  as  follows:  ''Common 
carriers  of  persons  are  required  to  do  all  that  human  care,  vigilance, 
and  foresight  can  reasonably  do,  in  view  of  the  character  and  mode 
of  conveyance  adopted,  to  prevent  accident  to  passengers.  Not  the 
utmost  degree  of  care  which  the  human  mind  is  capable  of  invent- 


WHO    DEEMED    PASSENGERS. 

ing,  but  the  highest  degree  of  care  and  diligence  which  is  reasonably 
practicable  under  the  circumstances,  is  what  is  required." 

The  giving  of  these  instructions  is  assigned  as  error.  The  defend- 
ant insists  that  the  contract  relied  upon,  as  constituting  the  relation 
of  common  carrier  and  passenger,  was  obtained  by  imposition  and 
virtual  misrepresentation,  and,  it  being  now  repudiated  by  the  com- 
pany by  a  denial  by  it  of  its  liability,  the  plaintiff  cannot  be  allowed 
to  set  it  up  as  binding  upon  the  company;  and  that,  if  the  relation 
of  common  carrier  and  passenger  did  not  exist,  the  company  did  not 
owe  the  decedent  the  measure  of  care  set  forth  in  the  instruction. 

It  appears  to  us  that  the  defendant's  position  in  this  respect  is 
well  taken.  When  the  decedent  presented  the  ticket,  we  must  pre- 
sume that  he  intended  to  be  understood  as  claiming  that  he  had  a 
right  to  travel  upon  it.  This  claim  involved  the  claim  that  he  was 
Forgrave,  for  the  ticket  showed  upon  its  face  that  no  one  had  a 
right  to  travel  upon  it  but  Forgrave.  By  the  presentation  of  tin- 
ticket,  the  decedent  falsely  personated  Forgrave,  with  the  intention 
of  deceiving  the  company;  and  he  did  deceive  it,  and  to  its  in  jury. 
for,  by  reason  of  the  deception,  he  escaped  the  payment  of  the  full 
rate  with  which  he  was  otherwise  chargeable. 

It  is  not  material,  then,  that  the  decedent  obtained  the  conduc- 
tor's consent.  Whether  his  consent  would  have  bound  the  company, 
if  he  had  known  that  the  decedent  was  not  Forgrave,  we  need  not 
inquire;  it  certainly  did  not  under  the  circumstances  shown.  The 
only  relation  existing  between  the  decedent  and  the  company  having 
been  induced  by  fraud,  he  cannot  be  allowed  to  set  up  that  relation 
against  the  company  as  a  basis  of  recovery.  He  was,  then,  at  the 
time  of  the  injury,  in  the  car,  without  the  rights  of  a  passen-er, 
and  without  the  right  to  be  there  at  all.  We  do  not  say  that  it  is 
necessary  that  a  person  should  pay  fare  to  be  entitled  to  the  rights 
of  a  passenger.  It  is  sufficient,  probably,  if  he  has  the  consent  of 
the  company  fairly  obtained.  But  no  one  would  claim  that  a  mere 
trespasser  has  such  rights ;  and  it  appears  to  us  to  be  well  settled 
that  consent  obtained  by  fraud  is  equally  unavailing. 

The  plaintiff  insists  that  the  extraordinary  care  described  in  the 
instruction  does  not  become  due  from  common  carriers  by  reason  of 
any  contract,  but  simply  by  a  rule  of  law  which  enforces  the  duty 
upon  broader  grounds.  It  is  not  important  to  inquire  precisely  how 
the  duty  arises.  However  it  arises,  the  duty  is  one  which  the  com 
mon  carrier  owes  only  to  passengers,  and  if,  as  we  hold,  the  decedent 
did  not  sustain  that  relation  within  the  meaning  of  the  law,  the 
company  did  not  owe  that  duty  to  him,  and  that  is  the  end  of  the 
inquiry.  The  doctrine  which  we  announce  was  very  clearly  ex- 
pressed in  T.,  W,  &  W.  R.  Co.  v.  Beggs,  85  111.  80.  In  that  c 
the  court  said:  "Was  defendant  a  passenger  on  that  train  in  the 
true  sense  of  that  term?  He  was  travelling  on  a  free  pass  issued  to 
one  James  Short,  and  not  transferable,  and  passed  himself  as  the 


926  CARRIERS    OF   PASSENGERS. 

person  named  in  the  pass.  By  his  fraud  he  was  riding  on  the  car. 
Under  such  circumstances,  the  company  could  only  be  held  liable 
for  gross  negligence,  which  would  amount  to  wilful  injury."  In 
Thompson  on  Carriers  of  Passengers,  43,  section  3,  the  author  goes 
even  further.  After  stating  the  rule  that  the  relation  of  carrier,  and 
passenger  does  not  exist  where  one  fraudulently  obtains  a  free  ride, 
he  says:  "This  doctrine  extends  further,  and  includes  the  case  of 
one  who  knowingly  induces  the  conductor  of  a  train  to  violate  the 
regulations  of  the  company,  and  disregard  his  obligations  of  fidelity 
to  his  employer."  In  U.  P.  R'y  Co.  v.  Nichols,  8  Kan.  505,  the 
defendant  in  error  imposed  himself  upon  the  company  as  an  express 
messenger,  and  obtained  the  consent  of  the  conductor  to  carry  him 
without  fare.  It  was  held  that  he  did  not  become  entitled  to  the 
rights  of  a  passenger.  The  court,  after  quoting  Sherman  &  Red- 
field's  definition  of  a  passenger,  which  is  in  these  words:  "A  pas- 
senger is  one  who  undertakes,  with  the  consent  of  the  carrier,  to 
travel  in  the  conveyance  provided  by  the  latter,  other  than  in  the 
service  of  the  carrier  as  such, "  proceeds  to  say :  "  The  consent  obtained 
from  the  conductor  was  the  consent  that  an  express  messenger  might 
ride  without  paying  his  fare.  Such  consent  did  not  apply  to  the 
plaintiff  (the  defendant  in  error)."  See  also  the  following  cases: 
T.,  W.  &  W.  R.  Co.  v.  Brooks,  81  111.  292  [922];  M.  &  C.  R.  Co. 
v.  Chastine,  54  Miss.  503;  Creed  v.  Penn.  R.  Co. ,  86  Penn.  St.  139; 
Relf  v.  Rupp,  3  W.  &  S.  21;  Hayes  y.  Wells,  Fargo  &  Co.,  23 
Cal.  185. 

The  plaintiff  cites  and  relies  upon  Bissell  v.  R.  Co.'s,  22  N.  Y. 
308;  Washburn  v.  Nashville,  &c,  R.  Co.,  3  Head,  638;  Jacobus  v. 
St.  Paul,  &c,  R.  Co.,  20  Minn.  125  [1023];  Penn.  R.  Co.  v. 
Brooks,  57  Pa.  St.  346;  Wilton  v.  Middlesex,  R.  Co.,  107  Mass. 
108  [912] ;  Flint,  &c,  R.  Co.  v.  Weir,  37  Mich.  Ill  [305]  ;  Dunn 
v.  Grand  Trunk  R'y  Co.,  58  Me.  192;  Edgerton  v.  N.  Y.,  &c,  R. 
Co.,  39  N.  Y.  227;  Gregory  v.  Burlington,  &c,  R.  Co.  10  Neb.  250; 
Great  Northern  R'y  Co.  v.  Harrison,  10  Exch.  376.  But  none  of 
these  cases  hold  that  the  extraordinary  care  described  in  the  instruc- 
tion given  is  due  to  a  person  not  a  passenger,  and  none  of  them  hold 
that  the  relation  of  passenger  can  be  insisted  upon,  where  the  com- 
pany shows  affirmatively,  as  a  defence,  that  the  company's  consent 
was  obtained  by  fraud. 

Certain  special  objections  to  the  defence  remain  to  be  noticed. 
Sec.  2086  of  the  Code  provides  that "  when  by  the  terms  of  an  instru- 
ment its  assignment  is  prohibited,  an  assignment  of  it  shall  never- 
theless be  valid."  The  plaintiff  cites  this  statute,  and  claims,  as  we 
understand,  that  the  mere  possession  of  the  ticket  by  the  decedent 
was  prima  facie  evidence  of  an  assignment  to  him,  and  that  the 
assignment  under  the  statute  was  valid,  and.  being  such,  it  is  im- 
material whether  the  conductor  supposed  that  the  decedent  was 
Forgrave  or  not. 


WHO    DEEMED    PASSENGERS.  927 

Without  undertaking  to  set  forth  all  the  answers  which  we  think 
might  be  made  to  this  position,  we  think  it  sufficient  to  say  that 
do  not  think  that  the  word  "instrument,''  as  used  in  the  statute,  was 
designed  to  embrace  railroad  tickets  like  the  one  in  question.     The 
purpose  of  such  a  ticket  is  to  serve  as  evidence  of  a  contract  to  ren- 
der the  party  to  whom  it  is  issued  a  personal  service,  to  wit,  the 
transportation  of  himself  and  baggage,    and  no  one   else,  over  the 
route  described.     The  language  is:  "On  presenl  ition  of  this  tic] 
with  coupons  and  contract  attached,  ^\Ir.  K.  (•.  Forgrave  may  travel, " 
&c.     While  section  2085  treats  of  instruments  whereby  the  maker 
acknowledges  labor  to  be  due  another,  and  while  a  valid  assignn 
may  undoubtedly  be  made  of  such  instruments  under  the  statute, 
cannot  properly  so  construe  the  statute  as  to  hold  that  the  essential 
nature  of  the  contract  can  be  changed,  so  as  to  require  the  maker  to 
do  not  only  what  he  did  not  agree  to  do,  but  what  the  other  party 
expressly  stipulated  that  the  maker  should  not  be  required  to  do. 
The  case  is  not  different  from  one  where  an  individual  or  corpora- 
tion should  agree  to  transport  certain  specific  freight  and  no  other. 
No  assignment  could  be  made  of  the  contract  which  would  impose 
upon  the  maker  the  obligation  to  transport  different  freight.     It  is 
said  by  the  company  that  Forgrave  was  a  commercial  traveller,  and 
that  the  company  was  interested  in  facilitating  commercial  travellers, 
and  in  developing  commerce  along  its  line;  but  it  is  not  important 
to  inquire  how  this  is.      It  is  certain  that  we  cannot  go  beyond  the 
company's  contract,  so  far  as  its  essential  nature  is  concerned. 

Another  statute  relied  upon  is  section  11,  chapter  77,  Laws  of 
1878.  Thesection  is  in  these  words:  "No  railroad  corporation  shall 
charge,  demand,  or  receive  from  any  person  ...  for  the  transpor- 
tation of  persons  .  .  .  ,  or  for  any  other  service,  a  greater  sum 
than  it  shall,  at  the  same  time,  charge,  demand,  or  receive  from  any 
other  person  .  .  .  for  a  like  service  from  the  same  place,  or  upon 
like  conditions  and  under  similar  circumstances."  The  plaintiff's 
position,  as  we  understand  it,  is  that  the  act  of  the  company  in 
commuting  rates  to  Forgrave,  though  he  might  have  belonged  to  a 
certain  class,  and  though  the  company  might  have  been  interested 
in  facilitating  such  class,  was  nevertheless  a  violation  of  law,  and, 
being  such,  the  acts  of  the  decedent  in  gaining  the  advantage  of  tin- 
rates  commuted  to  Forgrave,  though  done  by  imposition,  were  jus- 
tifiable, and  did  not  preclude  him  from  insisting  that  he  had  the 
same  rights  that  he  would  have  had  if  he  had  paid  full  rates,  or 
otherwise  had  obtained  the  consent  of  the  company  without  fraud. 

It  is  a  sufficient  answer  to  say  that  if  the  company  charged  illegal 
rates  it  was  not  done  in  charging  Forgrave  less,  but  some  one  else 
more;  nor  could  the  decedent  properly  obtain  the  rates  made  to 
Forgrave  by  personating  Forgrave.  Whether,  if  he  had  appeared 
in  his  own  name,  and  demanded  that  the  rates  made  to  Forgrave 
should  be  made  to  him,    and  the  company  had  refused,    he   would 


928  CARRIERS    OF   PASSENGERS. 

have  had  a  right  to  complain,  we  need  not  determine,  as  we  have  no 
such  case. 

Another  position  taken  by  the  plaintiff  is  that  the  ticket  provides 
its  own  penalty  for  its  violation,  to  wit,  a  forfeiture,  and  that  no 
other  penalty  can  be  added. 

But  the  question  before  us  is  not  as  to  the  enforcement  of  a  penalty 
by  the  company,  but  as  to  whether  the  decedent  acquired  the  rights 
of  a  passenger.  The  right  of  the  company  to  insist  that  he  did  not, 
if  he  never  properly  acquired  the  consent  of  the  company  to  carry 
him  as  such,  is  independent  of  any  question  of  penalty.  We  think 
that  the  instruction  given  by  the  court  is  erroneous,  and  that  the 
judgment  must  be  Reversed. 


4.    LIABILITY   FOR   INJURIES. 

a.    From  negligence. 

CHRISTIE  v.   GRIGGS. 
Before  Mansfield,  C.  J.    2  Camp.  79.     1809. 

This  was  an  action  of  assumpsit  against  the  defendant  as  owner  of 
the  Blackwall  stage,  on  which  the  plaintiff,  a  pilot,  was  travelling 
to  London,  when  it  broke  down,  and  he  was  greatly  bruised.  The 
first  count  imputed  the  accident  to  the  negligence  of  the  driver;  the 
second,  to  the  insufficiency  of  the  carriage. 

The  plaintiff  having  proved  that  the  axle-tree  snapped  asunder  at 
a  place  where  there  is  a  slight  descent,  from  the  kennel  crossing  the 
road;  that  he  was,  in  consequence,  precipitated  from  the  top  of  the 
coach;  and  that  the  bruises  he  received  confined  him  several  weeks 
to  his  bed,  — there  rested  his  case. 

Best,  Sergeant,  contended  strenuously  that  the  plaintiff  was  bound 
to  proceed  farther,  and  give  evidence,  either  of  the  driver  being 
unskilful,  or  of  the  coach  being  insufficient. 

Sir  James  Mansfield,  C.  J.  I  think  the  plaintiff  has  made  a 
prima  facie  case  by  proving  his  going  on  the  coach,  the  accident,  and 
the  damage  he  has  suffered.  It  now  lies  on  the  other  side  to  show 
that  the  coach  was  as  good  a  coach  as  could  be  made,  and  that  the 
driver  was  as  skilful  a  driver  as  could  anywhere  be  found.  What 
other  evidence  can  the  plaintiff  give?  The  passengers  were  probably 
all  sailors  like  himself;  and  how  do  they  know  whether  the  coach  was 
well  built,  or  whether  the  coachman  drove  skilfully?  In  many  other 
cases  of  this  sort  it  must  be  equally  impossible  for  the  plaintiff  to 
give  the  evidence  required.     But  when  the  breaking  down  or  over- 


LIABILITY    FOR   INJURIES. 


turning  of  the  coach  is  proved,  negligence  on  the  part  of  tb< 
is  implied.     He  has  always  the  means  to  rebut  this  presumption, 
if  it  be  unfounded;  and  it  is  now  incumbent  on  the  defendant 
make  out,  that  the  damage  in  this  case  arose  from  what  the  law  con- 
siders a  mere  accident. 

The  defendant  then  called  several  witnesses,  who  swore  that  the 
axle-tree  had  been  examined  a  few  days  before  it  broke  without  any 
flaw  being  discovered  in  it;  and  that  when  the  accident  happened, 
the  coachman,  a  very  skilful  driver,  was  driving  in  the  usual  track 
nnd  at  a  moderate  pace. 

Sir  James  Mansfield  said,  as  the  driver  had  been  cleared  of 
tverything  like  negligence,  the  question  for  the  jury  would  be,  —  as 
to  the  sufficiency  of  the  coach.  If  the  axle-tree  was  sound  as  far  as 
human  eye  could  discover,  the  defendant  was  not  liable.  There  was 
a  difference  between  a  contract  to  carry  goods,  and  a  contract  to  carry 
passengers.  For  the  goods  the  carrier  was  answerable  at  all  events. 
But  he  did  not  warrant  the  safety  of  the  passengers.  His  under- 
taking as  to  them  went  no  farther  than  this,  that  as  far  as  human 
care  and  foresight  could  go,  he  would  provide  for  their  safe  con- 
veyance. Therefore  if  the  breaking  down  of  the  coach  was  purely 
accidental,  the  plaintiff  had  no  remedy  for  the  misfortune  he  had 
encountered. 

The  jury  found  a  verdict  for  the  defendant. 


INGALLS  v.    BILLS. 
9  Met.  (Mass.)  1.     1845. 

Assumpsit  on  an  implied  promise  of  the  defendants  as  coach  pro- 
prietors and  common  carriers  of  passengers,  to  convey  the  plaintiff 
safely  from  Boston  to  Cambridge. 

At  the  trial  in  the  Court  of  Common  Pleas,  before  Williams, 
C.  J.,  the  plaintiff  introduced  evidence  tending  to  prove  that,  on 
the  23d  of  September,  1841,  he  and  several  other  persons  took  out- 
side seats,  as  passengers,  on  the  top  of  the  defendants'  coach,  to  be 
conveyed  from  Boston  to  Cambridge;  that  on  the  way,  in  Court 
Street,  in  Boston,  while  proceeding  at  a  moderate  rate,  and  without 
coming  in  contact  with  anything,  or  meeting  any  obstruction,  the 
hind  axle-tree  of  the  coach  broke,  one  of  the  hind  wheels  came  off, 
and  the  coach  settled  down  on  one  side,  without  being  overset;  that 
the  plaintiff  and  some  other  outside  passengers,  being  alarmed, 
jumped  from  the  top  of  the  coach  upon  the  pavement;  and  that  the 
plaintiff's  left  arm  was  thereby  badly  injured. 

The  defendants  introduced  evidence  tending  to  prove  that  they 
had  taken  all  possible  care,  and  incurred  extraordinary  expense  in 


930  CARRIERS    OF    PASSENGERS. 

order  that  the  said  coach  should  be  of  the  best  materials  and  work- 
manship; that  at  the  time  of  the  accident  the  coach,  so  far  as  could 
be  discovered  from  the  most  careful  inspection  and  examination 
externally,  was  strong,  sound,  and  sufficient  for  the  journey;  and 
that  they  had  uniformly  exercised  the  utmost  vigilance  and  care  to 
preserve  and  keep  the  same  in  a  safe  and  roadworthy  condition 
But  the  evidence  further  tended  to  prove  that  there  was  an  internal 
defect  or  flaw  in  the  iron  of  the  axle-tree,  at  the  place  where  it  was 
broken  as  aforesaid,  about  three-eighths  of  an  inch  in  length,  and 
wide  enough  to  insert  the  point  of  a  fine  needle  or  pin  —  which 
defect  or  flaw  appeared  to  have  arisen  from  the  forging  of  the  iron, 
and  which  might  have  been  the  cause  of  the  said  breaking:  that  the 
said  defect  was  entirely  surrounded  by  sound  iron  one-quarter  of  an 
inch  thick;  and  that  the  flaw  or  defect  could  not  possibly  have  been 
discovered  by  inspection  and  examination  externally. 

Upon  this  evidence  the  defendants  moved  the  court  to  instruct  the 
jury  that  it  was  the  duty  of  the  defendants  to  use  all  possible  care 
in  providing  a  good  coach,  in  keeping  the  same  in  due  repair,  and 
in  due  examination  into  its  condition;  and  if  they  took  such  care, 
and  the  accident  happened,  without  any  fault  or  negligence  on 
their  part,  but  by  reason  of  a  defect  which  they  could  not  discover, 
then  the  verdict  should  be  for  them;  and  that  the  plaintiff  was  not 
entitled  to  a  verdict,  unless  the  jury  were  of  opinion  that  there 
was  some  degree  of  actual  fault  or  negligence  on  the  part  of  the 
defendants. 

The  judge  declined  giving  these  instructions,  but  submitted  the 
evidence  to  the  jury,  with  instructions  that  the  defendants  were 
bound  by  law,  and  by  an  implied  promise  on  their  part,  to  provide 
a  coach  not  only  apparently,  but  really  roadworthy ;  that  they  were 
liable  for  any  injury  that  might  arise  to  a  passenger  from  a  defect 
in  the  original  construction  of  the  coach,  although  the  imperfection 
was  not  visible  and  could  not  be  discovered  upon  inspection  aDd 
examination;  and  that  if  the  jury  were  satisfied,  from  the  evidence, 
that  the  axle-tree  broke  in  consequence  of  the  original  flaw  or  defect 
in  the  interior  thereof,  and  the  plaintiff  was  injured  thereby,  he  was 
entitled  to  a  verdict,  although  that  flaw  was  invisible,  and  could  not 
be  discovered  by  inspection  and  examination  externally. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

Hubbard,  J.  The  question  presented  in  this  case  is  one  of  much 
importance  to  a  community  like  ours,  so  many  of  whose  citizens  are 
engaged  in  business  which  requires  their  transportation  from  place 
to  place  in  vehicles  furnished  by  others ;  and  though  speed  seems  to 
be  the  most  desirable  element  in  modern  travel,  yet  the  law  points 
more  specifically  to  the  security  of  the  traveller. 

Under  the  charge  of  the  learned  judge  who  tried  this  case,  we  are 
called  upon  to  decide  whether  the  proprietors  of  stage-coaches  are 


LIABILITY   FOR   INJURIES.  931 

answerable  for  all  injuries  to  passengers  arising  from  accidents  hap- 
pening to  their  coaches,  although  proceeding  from  causes  which  t 
greatest  care  in.  the  examination  and  inspection  of  the  coach  could 
not  guard  against  or  prevent;  or,  in  other  words,  whether  a  coach 
must  be  alike  free  from  secret  defects,  which  the  owner  cannot 
detect,  after. the  most  critical  examination,  as  from  those  which 
might,  on  such  an  examination,  be  discovered. 

The  learned  judge  ruled  that  the  defendants,  as  proprietors  of  a 
coach,  were  bound  by  law,  and  by  an  implied  promise  on  their  part, 
to  provide  a  coach,  not  only  apparently,  but  really,  roadworthy,  and 
that  they  were  liable  for  any  injury  that  might  arise  to  a  passenger 
from  a  defect  in  the  original  construction  of  the  coach,  although 
the  imperfection  was  not  visible,  and  could  not  be  discovered  upon 
inspection  and  examination. 

The  law  respecting  common  carriers  has  ever  been  rigidly  enforced, 
and  probably  there  has  been  as  little  relaxation  of  the  doctrine,  as 
maintained  by  the  ancient  authorities,  respecting  this  species  of 
contract,  as  in  any  one  branch  of  the  common  law.  This  arises  from 
the  great  confidence  necessarily  reposed  in  persons  engaged  in  this 
employment.  Goods  are  intrusted  to  their  sole  charge  and  over- 
sight, and  for  which  they  receive  a  suitable  compensation;  and  they 
have  been,  and  still  are,  held  responsible  for  the  safe  delivery  of 
the  goods,  with  but  two  exceptions,  viz.,  the  act  of  God  and  the 
king's  enemies;  so  that  the  owners  of  goods  may  be  protected 
against  collusive  robberies,  against  thefts  and  embezzlements,  and 
negligent  transportation.  But  in  regard  to  the  carriage  of  passen- 
gers, the  same  principles  of  law  have  not  been  applied;  and  for  the 
obvious  reason  that  a  great  distinction  exists  between  persons  and 
goods,  the  passengers  being  capable  of  taking  care  of  themselves, 
and  of  exercising  that  vigilance  and  foresight  .in  the  maintenance 
of  their  rights,  which  the  owners  of  goods  cannot  do,  who  have 
intrusted  them  to  others. 

It  is  contended  by  the  counsel  for  the  plaintiff,  that  the  propri- 
etor of  a  stage-coach  is  held  responsible  for  the  safe  carriage  of  pas- 
sengers so  far  that  he  is  a  warrantor  that  his  coach  is  roadworthy, 
that  is,  is  absolutely  sufficient  for  the  performance  of  the  journey 
undertaken;  and  that  if  an  accident '  happens,  the  proof  of  the 
greatest  care,  caution,  and  diligence,  in  the  selecting  of  the  coach, 
and  in  the  preservation  of  it  during  its  use,  will  not  be  a  defence  to 
the  owner;  and  it  is  insisted  that  this  position  is  supported  by 
various  authorities.  The  cases,  among  many  others,  cited,  which 
are  more  especially  relied  upon,  are  those  of  Israel  v.  Clark,  4  Esp. 
R.  259;  Crofts  v.  Waterhouse,  3  Bing.  319;  Bremner  v.  Williams, 
1  Car.  &  P.  414;  and  Sharp  v.  Grey,  9  Bing.  457.  If  these  cases 
do  uphold  the  doctrine  for  which  they  are  cited,  they  are  certainly 
so  much  in  conflict  with  other  decided  cases,  that  they  cannot  be 
viewed  in  the  light  of  established  authorities.     But  we  think,  upon 


932  CAERIERS   OF    PASSENGERS. 

an  examination  of  them  and  comparing  them  with  other  cases,  they 
will  not  be  found  so  clearly  to  sustain  the  position  of  the  plaintiff 
as  has  been  argued. 

It  must  be  borne  in  mind  that  the  carrying  of  passengers  for  hire, 
in  coaches,  is  comparatively  a  modern  practice;  and  that  though 
suits  occur  against  owners  of  coaches,  for  the  loss  of  goods,  as  early 
as  the  time  of  Lord  Holt,  yet  the  first  case  of  a  suit  to  recover 
damages  by  a  passenger,  which  I  have  noticed,  is  that  of  White  v. 
Boulton,  Peake's  Cas.  81,  which  was  tried  before  Lord  Kenyon  in 
1791,  and  published  in  1795.  That  was  an  action  against  the  pro- 
prietors of  the  Chester  mail-coach  for  the  negligence  of  the  driver, 
by  reason  of  which  the  coach  was  overturned,  and  the  plaintiff's 
arm  broken,  and  in  which  he  recovered  damages  for  the  injury;  and 
Lord  Kenyon,  in  delivering  his  opinion,  said,  "when  these  (mail) 
coaches  carried  passengers,  the  proprietors  of  them  were  bound  to 
carry  them  safely  and  properly."  The  correctness  of  the  opinion 
cannot  be  doubted,  in  its  application  to  a  case  of  negligence.  The 
meaning  of  the  word  "safely,"  as  used  in  declarations  for  this 
species  of  injury,  is  given  hereafter. 

The  next  case  which  occurred  was  that  of  Aston  v.  Heaven,  2  Esp. 
R.  533,  in  1797,  which  was  against  the  defendants,  as  proprietors 
of  the  Salisbury  stage-coach,  for  negligence  in  the  driving  of  their 
coach,  in  consequence  of  which  it  was  overset  and  the  plaintiff  in- 
jured. This  action  was  tried  before  Eyre,  C.  J.  It  was  contended 
by  the  counsel  for  the  plaintiff,  that  coach  owners  were  liable  in  all 
cases,  except  where  the  injury  happens  from  the  act  of  God  or  the 
Ring's  enemies;  but  the  learned  judge  held  that  cases  of  loss  of  goods 
by  carriers  were  totally  unlike  the  case  before  him.  In  those  cases, 
the  parties  are  protected  by  the  custom ;  but  as  against  carriers  of 
persons,  the  action  stands  alone  on  the  ground  of  negligence. 

The  next  case  was  that  of  Israel  v.  Clark,  4  Esp.  R.  259,  in  1803, 
where  the  plaintiff  sought  to  recover  damages  for  an  injury  arising 
from  the  overturning  of  the  defendant's  coach,  in  consequence  of  the 
axle-tree  having  broken ;  and  one  count  alleged  the  injury  to  have 
arisen  from  the  overloading  of  the  coach.  It  was  contended  that  if 
the  owners  carried  more  passengers  than  they  were  allowed  by  Act 
of  Parliament,  that  should  be  deemed  such  an  overloading.  To  this 
Lord  Ellenborough,  who  tried  the  cause,  assented,  and  said,  "  if 
they  carried  more  than  the  statute  allowed  they  were  liable  to  its 
penalties;  but  they  might  not  be  entitled  to  carry  so  many;  it 
depended  on  the  strength  of  the  carriage.  They  were  bound  by  law 
to  provide  sufficient  carriages  for  the  safe  conveyance  of  the  public 
who  had  occasion  to  travel  by  them.  At  all  events,  he  would  expect 
a  clear  landworthiness  in  the  carriage  itself  to  be  established." 
This  is  one  of  the  cases  upon  which  the  present  plaintiff  specially 
relies.  It  was  a  nisi  prius  case,  and  it  does  not  appear  upon  which 
count  the  jury  found  their  verdict.     But  the  point  pending  in  the 


LIABILITY    FOR   INJURIES. 

present  case  was  neither  discussed  nor  started,  viz.,  whether  t! 
accident  arose  from  the  negligence  of  the  owner  in  not  providing  a 
coach  of  sufficient  strength,  or  from  a  secret  defect  not  discoverable 
upon  the  most  careful  examination.  No  opinion  was  expressed 
whether  the  action  rests  upon  negligence  or  upon  an  implied  war- 
ranty. But  it  was  stated  that  the  defendants  were  bound  by  law  to 
provide  sufficient  carriages  for  the  passage,  and,  at  all  events,  that 
there  should  be  a  clear  landworthiness  in  the  carriage  itself. 

The  general  position  is  not  denied  with  regard  to  the  duty  of  an 
owner  to  provide  safe  carriages.  The  duty,  however,  does  not  in 
itself  import  a  warranty.  The  judge  himself  may  have  used  stronger 
expressions  in  the  terms,  "landworthiness  in  the  carriage,'"  than  he 
intended  by  the  thought  of  seaworthiness  in  a  ship,  and  the  duty  of 
shipowners  in  that  respect.  If  the  subject  had  been  discussed,  and 
the  distinctions  now  presented  had  been  raised,  and  then  the  opinion 
had  followed,  as  expressed  in  the  report,  it  would  be  entitled  to 
much  more  consideration  than  the  mere  strength  of  the  words  now 
impart  to  it. 

The  next  case  was  that  of  Christie  v.  Griggs,  2  Campb.  79  [928], 
in  1809.  There  the  axle-tree  of  the  coach  snapped  asunder  at  a 
place  where  there  was  a  slight  descent  from  the  kennel  crossing  the 
road,  and  the  plaintiff  was  thrown  from  the  top  of  the  coach.  Sir 
James  Mansfield,  in  instructing  the  jury,  said:  "As  the  driver  had 
been  cleared  of  negligence,  the  question  for  the  jury  was  as  to  the 
sufficiency  of  the  coach.  If  the  axle-tree  was  sound,  as  far  as  human 
eye  could  discover,  the  defendant  was  not  liable.  There  was  a 
difference  between  a  contract  to  carry  goods  and  a  contract  to  carry 
passengers.  For  the  goods,  the  carrier  was  answerable  at  all  events, 
but  he  did  not  warrant  the  safety  of  the  passengers.  His  under- 
taking as  to  them  went  no  further  than  this,  that,  as  far  as  human  care 
and  foresight  could  go,  he  would  provide  for  their  safe  conveyance. 
Therefore,  if  the  breaking  down  of  the  coach  was  purely  accidental, 
the  plaintiff  had  no  remedy  for  the  misfortune  he  had  encountered." 

The  case  of  Bremner  v.  Williams,  1  Car.  &  P.  414,  in  1824,  is 
relied  on  by  the  plaintiff.  There,  Best,  C.  J.,  said  he  considered 
that  "every  coach  proprietor  warrants  to  the  public  that  his  stage- 
coach is  equal  to  the  journey  it  undertakes,  and  that  it  is  his  duty 
to  examine  it  previous  to  the  commencement  of  every  journey." 
And  so,  in  Crofts  v.  Waterhouse,  3  Bing.  321,  in  1825,  Best,  C.  J., 
said:  "The  coachman  must  have  competent  skill,  and  use  that  skill 
with  diligence;  he  must  be  well  acquainted  with  the  road  he  under- 
takes to  drive;  he  must  be  provided  with  steady  horses,  a  coach  and 
harness  of  sufficient  strength,  and  properly  made;  and  also  with 
lights  by  night.  If  there  be  the  least  failure  in  any  one  of  these 
things,  the  duty  of  the  coach  proprietors  is  not  fulfilled,  and  they 
are  answerable  for  any  injury  or  damage  that  happens."  But  though 
this  language  is  strong,  and  would  apparently  import  a  warranty, 


934  CARRIERS    OF   PASSENGERS. 

on  the  part  of  the  stage  proprietor,  as  to  the  sufficiency  of  his  coach, 
yet  Park,  J.,  in  the  same  case  said,  "a  carrier  of  passengers  is  only 
liable  for  negligence."  This  shows  that  the  court  did  not  mean  to 
lay  down  the  law,  that  a  stage  proprietor  is  in  fact  a  warrantor  of 
the  sufficiency  of  his  coach  and  its  equipments,  but  that  he  is  bound 
to  use  the  utmost  diligence  and  care  in  making  suitable  provision 
for  those  whom  he  carries;  and  we  think  such  a  construction  is 
warranted  by  the  language  of  the  same  learned  judge  (Best),  in  the 
case  of  Harris  v.  Costar,  1  Car.  &  P.  636,  in  1825,  where  the  aver- 
ment in  the  declaration  was,  that  the  defendant  undertook  to  carry 
the  plaintiff  safely.  The  judge  held  that  it  did  not  mean  that  the 
coach  proprietor  undertook  to  convey  safely  absolutely,  but  that  it 
was  to  be  construed  like  all  other  instruments,  taking  the  whole 
together,  and  meant  that  the  defendants  were  to  use  due  care. 

But  the  case  mainly  relied  upon  by  the  plaintiff  is  that  of  Sharp 
v.  Grey,  9  Bing.  457,  where  the  axle-tree  of  a  coach  was  broken  and 
the  plaintiff  injured.  There  the  axle  was  an  iron  bar  enclosed  in  a 
frame  of  wood  of  four  pieces,  secured  by  clamps  of  iron.  The  coach 
was  examined,  and  no  defect  was  obvious  to  the  sight.  But  after 
the  accident  a  defect  was  found  in  a  portion  of  the  iron  bar,  which 
could  not  be  discovered  without  taking  off  the  woodwork;  and  it 
was  proved  that  it  was  not  usual  to  examine  the  iron  under  the  wood- 
work, as  it  would  rather  tend  to  insecurity  than  safety.  It  does  not 
appear  by  the  statement,  that  the  defect  could  not  have  been  seen, 
on  taking  off  the  woodwork;  but  it  would  rather  seem  that  it  might 
have  been  discovered.  However  that  may  be,  the  language  of 
different  judges,  in  giving  their  opinion  is  relied  upon  as  maintain- 
ing the  doctrines  contended  for  by  the  plaintiff.  Gaselee,  J.,  held 
that  "the  burden  lay  on  the  defendant  to  show  there  had  been  no 
defect  in  the  construction  of  the  coach."  Bosanquet,  J.,  said:  "The 
chief  justice  "  (who  tried  the  case)  "  held  that  the  defendant  was 
bound  to  provide  a  safe  vehicle,  and  the  accident  happened  from  a 
defect  in  the  axle-tree.  If  so,  when  the  coach  started  it  was  not 
roadworthy,  and  the  defendant  is  liable  for  the  consequence,  upon 
the  same  principle  as  a  ship-owner  who  furnishes  a  vessel  which  is 
not  seaworthy."  And  Alderson,  J.,  said  he  was  of  the  same  opinion, 
and  that  "  a  coach  proprietor  is  liable  for  all  defects  in  his  vehicle, 
which  can  be  seen  at  the  time  of  construction,  as  well  as  for  such 
as  may  exist  afterwards,  and  be  discovered  on  investigation.  The 
injury  in  the  present  case  appears  to  have  been  occasioned  by  an 
original  defect  of  construction:  and  if  the  defendant  were  not 
responsible,  a  coach  proprietor  might  buy  ill-constructed  or  unsafe 
vehicles,  and  his  passengers  be  without  remedy." 

This  case  goes  far  to  support  the  plaintiff  in  the  doctrine  con- 
tended for  by  his  counsel,  as  it  would  seem  to  place  the  case  upon  the 
ground  that  the  coach  proprietor  must,  at  all  events,  provide  a  coach 
absolutely  and  at  all  times  sufficient  for  the  journey,  and  that  he 


LIABILITY   FOR    INJURIES.  935 

is  a  -warrantor  to  the  passenger  to  provide  such  a  coach.  But  we 
incline  to  believe  the  learned  judges  gave  too  much  weight  to  the 
comparison  of  Bosanquet,  J.,  viz.,  that  a  coach  must  be  roadworthy 
on  the  same  principle  that  a  ship  must  be  seaworthy.  We  think 
the  comparison  is  not  correct,  and  that  the  analogy  applies  only 
where  goods  are  carried,  and  not  where  passengers  are  transported. 
And  no  case  has  been  cited,  where  a  passenger  has  sued  a  ship- 
owner for  an  injury  arising  to  him  personally  in  not  conducting  him 
in  a  seaworthy  ship.  If  more  was  intended  by  the  learned  court, 
than  that  a  coach  proprietor  is  bound  to  use  the  greatest  care  and 
diligence  in  providing  suitable  and  sufficient  coaches,  and  keeping 
them  in  a  safe  and  suitable  condition  for  use,  we  cannot  agree 
with  them  in  opinion.  To  give  their  language  the  meaning  con- 
tended for  in  the  argument  of  the  case  at  bar  is,  in  fact,  to  place 
coach  proprietors  in  the  same  predicament  with  common  carriers, 
and  to  make  them  responsible,  in  all  events,  for  the  safe  conduct 
of  passengers,  so  far  as  the  vehicle  is  concerned.  But  that  the 
case  of  Sharp  v.  Grey  is  susceptible  of  being  placed  on  the  ground 
which  we  think  tenable,  namely,  that  negligence  and  not  war- 
ranty lies  at  the  foundation  of  actions  of  this  description,  may  be 
inferred  from  the  language  of  Mr.  Justice  Park,  who,  in  giving  his 
opinion,  says :  "  This  was  entirely  a  question  of  fact.  It  is  clear 
that  there  was  a  defect  in  the  axle-tree ;  and  it  was  for  the  jury  to 
say  whether  the  accident  was  occasioned  by  what,  in  law,  is  called 
negligence  in  the  defendant,  or  not."  And  Tindal,  C.  J.,  who  tried 
the  cause  before  the  jury,  left  it  for  them  to  consider  whether  there 
had  been  that  vigilance  which  was  required  by  the  defendant's 
engagement  to  carry  the  plaintiff  safely;  thus  apparently  putting 
the  case  on  the  ground  of  negligence  and  not  of  warranty.  See  also 
Bretherton  v.  Wood,  3  Brod.  &  Bing.  54,  and  6  Moore,  141;  Ansell 
v.  Waterhouse,  6  M.  &  S.  385,  and  2  Chit.  R.  1. 

The  same  question  has  arisen  in  this  country,  and  the  decisions 
exhibit  a  uniformity  of  opinion  that  coach  proprietors  are  not  liable 
as  common  carriers,  but  are  made  responsible  by  reason  of  negli- 
gence. In  the  case  of  Camden  and  Amboy  Railroad  Co.  v.  Burke, 
13  Wend.  626,  the  court  say  that  the  proprietors  of  public  convey- 
ances are  liable  at  all  events  for  the  baggage  of  passengers;  but  as 
to  injuries  to  their  persons,  they  are  only  liable  for  the  want  of 
such  care  and  diligence  as  is  characteristic  of  cautious  persons. 
And  in  considering  the  subject  again  in  the  case  of  Hollister  v. 
Nowlen,  19  Wend.  236  [465],  they  say  that  "stage-coach  proprie- 
tors, and  other  carriers  by  land  and  water,  incur  a  very  different 
responsibility  in  relation  to  the  passenger  and  his  baggage.  For  an 
injury  to  the  passenger  they  are  answerable  only  where  there  has 
been  a  want  of  proper  care,  diligence,  or  skill;  but  in  relation  to 
baggage,  they  are  regarded  as  insurers,  and  must  answer  for  any  loss 
not  occasioned  by  inevitable  accident  or  the  public  enemies." 


936  CARRIERS    OF    PASSENGERS. 

In  a  case  which  occurred  in  respect  to  the  transportation  of  slaves, 
Boyce  v.  Anderson,  2  Pet.  155  [860],  Chief  Justice  Marshall,  in 
giving  the  opinion  of  the  court,  says :  "  The  law  applicable  to  com- 
mon carriers  is  one  of  great  rigor.  Though  to  the  extent  to  which 
it  has  been  carried,  and  in  cases  to  which  it  has  been  applied,  we 
admit  its  necessity  and  policy,  we  do  not  think  it  ought  to  be  car- 
ried further  or  applied  to  new  cases.  We  think  it  has  not  been 
applied  to  living  men,  and  that.it  ought  not  to  be  applied  to  them." 
So  in  the  case  of  Stokes  v.  Saltonstall,  13  Pet.  181,  the  question 
arose  and  was  thoroughly,  discussed;  and  the  same  opinions  are 
maintained  as  in  the  cases  above  cited  from  Wendell.  And  the 
whole  subject  is  examined  by  Judge  Story,  in  his  Treatise  on  Bail- 
ments, §§  592-600,  with  his  usual  learning;    and  his  result  is  the 

same. 

If  there  is  a  discrepancy  between  the  English  authorities  which 
have  been  cited,  we  think  the  opinions  expressed  by  Chief  Justice 
Eyre  and  Chief  Justice  Mansfield  are  most  consonant  with  sound 
reason,  as  applicable  to  a  branch  of  the  law  comparatively  new,  and 
though  given  at  nisi  prius,  are  fully  sustained  by  the  discussions 
which  the  same  subject  has  undergone  in  the  courts  of  our  own 
country.  We  have  said,  as  being  most  consonant  with  sound  reason 
or  good  common  sense,  as  applied  to  so  practical  a  subject;  because, 
if  such  a  warranty  were  imposed  by  force  of  law  upon  the  proprie- 
tors of  coaches  and  other  vehicles  for  the  conveyance  of  passengers, 
they  would  in  fact  become  the  warrantors  of  the  work  of  others, 
over  whom  they  have  no  actual  control,  and  —  from  the  number  of 
artisans  employed  in  the  construction  of  the  materials  of  a  single 
coach  —  whom  they  could  not  follow.  Unless,  therefore,  by  the 
application  of  a  similar  rule,  every  workman  shall  be  held  as  the 
warrantor,  in  all  events,  of  the  strength,  sufficiency,  and  adaptation 
of  his  own  manufactures  to  the  uses  designed  —  which,  in  a  com- 
munity like  o\irs,  could  not  be  practically  enforced  —  the  warranty 
would  really  rest  on  the  persons  purchasing  the  article  for  use,  and 
not  upon  the  makers. 

If  it  should  be  said  that  the  same  observations  might  be  applied 
to  ship-owners,  the  answer  might  be  given,  that  they  have  never 
been  held  as  the  warrantors  of  the  safety  of  the  passengers  whom 
they  conveyed;  and  as  to  the  transportation  of  goods,  owners  of 
general  ships  have  always  been  held  as  common  carriers,  for  the 
same  reasons  that  carriers  on  land  are  bound  for  the  safe  delivery 
of  goods  intrusted  to  them.  But  as  it  respects  the  seaworthiness 
of  a  ship,  the  technical  rules  of  law  respecting  it  have  been  so 
repeatedly  examined,  and  the  facts  upon  which  they  rest  so  often 
investigated,  that  the  questions  which  arise  are  those  of  fact  and 
not  of  law,  and  in  a  vast  proportion  of  instances  depend  upon  the 
degree  of  diligence  and  care  which  are  used  in  the  preservation  of 
vessels,  and  practically  resolve  themselves  into  questions  of  negli' 


LIABILITY    FOR   INJURIES.  937 

gence;  so  that  the  evils  are  very  few  that  arise  from  the  mainte- 
nance of  the  doctrine  that  a  ship  nnist  be  seaworthy  in  order  to  be 
the  subject  of  insurance. 

The  result  to  which  we  have  arrived,  from  the  examination  of  the 
case  before  us,  is  this :  That  carriers  of  passengers  for  hire  are  bound 
to  use  the  utmost  care  and  diligence  in  the  providing  0f  safe,  suffi- 
cient, and  suitable  coaches,  harnesses,  horses,  and  coachmen  in  order 
to  prevent  those  injuries  which  human  care  and  foresight  can  guard 
against;  and  that  if  an  accident  happens  from  a  defect  in  the  coach, 
which  might  have  been  discovered  and  remedied  upon  the  most  care- 
ful and  thorough  examination  of  the  coach,  such  accident  must  be 
ascribed  to  negligence,  for  which  the  owner  is  liable  in  case  of 
injury  to  a  passenger,  happening  by  reason  of  such  accident.  On 
the  other  hand,  where  the  accident  arises  from  a  hidden  and  inter- 
nal defect,  which  a  careful  and  thorough  examination  would  not 
disclose,  and  which  could  not  be  guarded  against  by  the  exercise  of 
a  sound  judgment  and  the  most  vigilant  oversight,  then  the  pro- 
prietor is  not  liable  for  the  injury,  but  the  misfortune  must  be  borne 
by  the  sufferer,  as  one  of  that  class  of  injuries  for  which  the  law 
can  afford  no  redress  in  the  form  of  a  pecuniary  recompense.  And 
we  are  of  opinion  that  the  instructions,  which  the  defendants'  coun- 
sel requested  might  be  given  to  the  jury  in  the  present  case,  were 
correct  in  point  of  law,  and  that  the  learned  judge  erred  in  extend- 
ing the  liability  of  the  defendants  further  than  was  proposed  in  the 
instructions  requested. 

The  point  arising  on  the  residue  of  the  instructions  was  not 
pressed  in  the  argument;  and  we  see  no  reason  to  doubt  its  correct- 
ness, provided  the  peril  to  which  the  plaintiff  was  exposed  arose  from 
a  defect  or  accident  for  which  the  defendants  were  otherwise  liable: 
Jones  v.  Boyce,  1  Stark.  R.  493. 

New  trial  granted. 


MEIER   v.   PENNSYLVANIA   R.    CO. 
64  Penn.  St.  225.     1870. 

This  was  an  action  on  the  case  for  negligence,  brought  February 
5th,  1868,  by  Theodore  G.  Meier  against  the  Pennsylvania  Railroad 
Company. 

The  plaintiff's  case  was  the  following:  — 

On  the  evening  of  February  7th,  1867,  Theodore  G.  Meier,  the 
plaintiff  in  error,  took  passage  on  the  train  of  defendant's  cars  at 
Jersey  City,  bound  for  St.  Louis.  He  occupied  the  sleeping  car, 
which  was  the  rear  car  of  the  train.  On  the  following  morning, 
about  eight  o'clock,  at  a  point  on  defendant's  road  between  Tyrone 


938  CARRIERS    OF    PASSENGERS. 

and  Altoona  —  the  train  running  at  a  speed  of  twenty-six  miles  to 
the  hour  on  an  ascending  grade  —  the  axle  of  the  forward  truck  broke 
in  two  places.  The  end  of  the  car  then  dropped  down  and  slid  along 
the  rails.  The  plaintiff  was  thrown  forward  so  that  his  knee  caught 
in  the  side-rest  of  the  seat,  and  the  ligaments  of  the  right  knee- 
joint  were  torn,  and  the  bones  of  his  leg  were  severely  bruised. 

The  defendants  proved  that  new  wheels  and  new  axles  had  been 
put  under  the  car  in  October,  1866;  the  axles  were  made  at  the  Sligo 
Works  of  Lyon,  Shorb  &  Co.,  and  they  were  of  good  quality,  that 
the  train  had  been  inspected  seventy  miles  east  of  the  place  of  the 
accident,  and  again  twenty-two  miles  east  of  it;  the  truck  and  the 
road  were  in  good  order;  the  train  running  at  a  proper  speed.  They 
gave  a  large  amount  of  evidence  to  show  that  minute  and  constant 
care  had  been  exercised  to  keep  the  road,  apparatus,  cars,  running 
gear,  &c,  in  perfect  order,  and  that  they  employed  such  appliances, 
&c,  as  are  approved  by  the  most  experienced  railroad  operators  and 
mechanics;  and  gave  evidence  generally  for  the  purpose  of  showing 
that  they  used  the  utmost  care  that  human  knowledge,  skill,  and 
foresight  could  provide,  and  that  the  accident  was  due  to  some  cir- 
cumstance against  which  these  could  not  guard. 

Verdict  for  the  defendants. 

Agxew,  J.  It  is  agreed  on  all  hands,  says  Judge  Redfield,  in  his 
work  on  Railways,  ed.  1867,  p.  174,  that  carriers  of  passengers  are 
liable  only  for  negligence  either  proximate  or  remote,  and  that  they 
are  not  insurers  of  the  safety  of  their  passengers,  as  they  are  as  car- 
riers of  goods  and  baggage  of  passengers.  The  numerous  cases 
cited  from  which  this  result  is  drawn,  justify  this  statement:  Alden 
v.  N.  Y.  Central  Railroad  Co.,  26  N.  Y.  102,  holding  that  a  carrier 
is  bound  absolutely  to  provide  a  safe  vehicle,  irrespective  of  any 
question  of  negligence,  is  not  in  accord  with  the  American  cases 
generally,  or  the  modern  English  decisions.  It  is  reviewed  in 
Readhead  v.  Midland  Railroad  Co.,  2  Law  Rep.  C.  B.  412,  and 
therein  said  not  to  be  founded  in  good  reason.  See  the  cases  col- 
lected in  Shearman  &  Redfield  on  Negligence  (1869),  299,  §  267. 

The  language  of  Judge  Gibson,  taken  from  N.  Jersey  Railroad  Co. 
v.  Kennard,  9  Harris,  204,  that  a  carrier  of  either  goods  or  passen- 
gers is  bound  to  provide  a  carriage  or  vehicle  perfect  in  all  its  parts, 
in  default  of  which  he  becomes  responsible  for  any  loss  or  injury 
that  may  be  suffered,  has  no  relation  to  the  question  now  before 
us.  The  case  he  was  considering  was  that  of  a  car  made  without 
guards  at  the  windows  to  prevent  the  arms  of  passengers  being 
thrust  out,  to  their  injury,  which  he  considered  a  defect  in  the  con- 
struction of  the  car,  making  the  carrier  liable  for  negligence.  The 
car  was  not  perfect  in  its  parts,  as  he  thought.  The  car  was  imper- 
fect in  construction,  and  therefore  not  adapted  to  the  end  to  be 
attained,  to  wit,  security.  It  may  not  be  amiss  to  say  that  this 
opinion  of  the  Chief  Justice  as  to  window  guards  was  not  sustained 


LIABILITY    FOR    INJURIES.  939 

by  the  court  in  banc,  and  has  since  been  overruled  in  Pittsbur"  & 
Connellsville  Kailroad  Co.  v.  McCleary,  G  P.  F.  Smith,  294.  The 
doctrine  we  are  now  asked  to  sustain  is  that,  though  the  car  is  per- 
fect in  all  its  parts,  if  imperfect  from  some  latent  and  undiscover- 
able  defect,  which  the  utmost  skill  and  care  could  neither  perceive 
nor  provide  against,  the  railway  company  must  still  be  held  respon- 
sible for  injury  to  passengers,  on  the  ground  of  an  absolute  liability 
for  every  defect.  The  plaintiff  in  error  in  effect  contends  that  the 
defendants  were  warrantors  against  every  accident,  but  even  in 
the  case  referred  to,  Judge  Gibson  denied  this  rule.  He  said  of 
the  carrier,  he  is  bound  to  guard  him  (the  passenger)  from  every 
danger  which  extreme  vigilance  can  prevent.  This  expresses  the 
true  measure  of  responsibility.  He  answered  a  point  in  these 
words:  "That  the  company  is  responsible  only  for  defects  discover- 
able by  a  careful  man  after  a  careful  examination  and  exercise  of 
sound  judgment."  Thus:  "This  is  true,  but  were  there  such  an 
examination  and  exercise  of  judgment?  The  defective  construction 
of  the  car  must  have  been  obvious  to  the  dullest  perception,"  &c. 
The  same  rule  was  laid  down  in  Laing  v.  Colder,  8  Parr,  482. 
Judge  Pell  says,  it  is  long  since  settled  that  the  common  daw- 
responsibilities  of  carriers  of  goods  for  hire  do  not  as  a  whole 
extend  to  carriers  of  passengers.  The  latter  are  not  insurers  against 
all  accidents.  Put  though  (he  says)  in  legal  contemplation  they  do 
not  warrant  the  absolute  safety  of  their  passengers,  they  are  bound 
to  the  exercise  of  the  utmost  degree  of  diligence  and  care.  The 
slightest  neglect  against  which  human  prudence  and  foresight  may 
guard,  and  by  which  hurt  or  loss  is  occasioned,  will  render  them 
liable  in  damages.  The  same  doctrine  will  be  found  in  substance 
in  Eailroad  Co.  v.  Aspell,  11  Harris,  149,  and  Sullivan  v.  The  Phil- 
adelphia &  Reading  Eailroad  Co.,  6  Casey,  234,  and  in  other  cases. 
In  all  the  Pennsylvania  cases,  it  will  be  found  that  negligence  is 
the  ground  of  liability  on  the  part  of  a  carrier  of  passengers.  Abso- 
lute liability  requires  absolute  perfection  in  machinery  in  all 
respects,  which  is  impossible. 

The  utmost  which  human  knowledge,  human  skill,  and  human 
foresight  and  care  can  provide  is  all  that  in  reason  can  be  required. 
To  ask  more  is  to  prohibit  the  running  of  railways,  unless  they  pos- 
sess a  capital  and  surplus  which  will  enable  them  to  add  a  new  ele- 
ment to  their  business,  that  of  insurance.  Nor  can  we  carry  the 
requirement  beyond  the  use  of  known  machinery  and  modes  of 
using  it.  Railroads  must  keep  pace  with  science  and  art  and  modern 
improvement  in  cheir  application  to  the  carriage  of  passengers,  but 
are  not  responsible  for  the  unknown  as  well  as  the  new.  The  rule 
laid  down  by  the  learned  judge,  in  the  language  quoted  in  the  second 
assignment  of  error,  is  a  correct  summary  of  the  law.  The  rule  of 
responsibility  differs  from  the  rule  of  evidence.  Prima  facie,  where 
a  passenger,  being  carried  on  a  train,  is  injured  without  fault  of  his 


940  CARRIERS    OF    PASSENGERS. 

own,  there  is  a  legal  presumption  of  negligence,  casting  upon  the 
carrier  the  onus  of  disproving  it;  Laing  v.  Colder,  8  Barr.  482; 
Sullivan  v.  Philadelphia  &  Beading  Bailroad  Co.,  6  Casey,  234; 
Shearman  &  Bedfield  on  Negl.  §  280;  Bedfield  on  Bailways,  §  1760, 
and  notes.  This  is  the  rule  when  the  injury  is  caused  by  a  defect 
in  the  road,  cars,  or  machinery,  or  by  a  want  of  diligence  or  care  in 
those  employed,  or  by  any  other  thing  which  the  company  can  and 
ought  to  control  as  a  part  of  its  duty  to  carry  the  passengers  safely ; 
but  this  rule  of  evidence  is  not  conclusive.  The  carrier  may  rebut 
the  presumption  and  relieve  himself  from  responsibility  by  showing 
that  the  injury  arose  from  an  accident  which  the  utmost  skill,  fore- 
sight, and  diligence  could  not  prevent. 

We  think  none  of  the  errors  assigned  are  sustained,  and  the  judg- 
ment is  therefore  affirmed. 


STEAMBOAT   NEW    WOBLD  v.    KING. 
16  How.  (U.  S.)  4G9.     1853. 

This  was  an  appeal  from  the  District  Court  of  the  United  States 
for  the  Northern  District  of  California. 

It  was  libel  filed  by  King,  complaining  of  severe  personal  injury, 
disabling  him  for  life,  from  the  explosion  of  the  boiler  of  the  steam- 
boat "New  World,"  while  he  was  a  passenger,  on  her  passage  from 
Sacramento  to  San  Erancisco,  in  California. 

The  District  Court  decreed  for  the  libellant  in  twenty-five  hun- 
dred dollars  damages  and  costs;  and  the  owners  of  the  boat  appealed 
to  this  court. 

The  substance  of   the  evidence  is   stated  in  the  opinion  of  the 

court. 

Mr.  Justice  Curtis.  This  is  an  appeal  from  a  decree  of  the 
District  Court  of  the  United  States  for  the  Northern  District  of 
California,  sitting  in  admiralty.  The  libel  alleges  that  the  appellee 
was  a  passenger  on  board  the  steamer  on  a  voyage  from  Sacramento 
to  San  Erancisco,  in  June,  1851,  and  that,  while  navigating  within 
the  ebb  and  flow  of  the  tide,  a  boiler  flue  was  exploded  through  neg- 
ligence, and  the  appellee  grievously  scalded  by  the  steam  and  hot 
water. 

The  answer  admits  that  an  explosion  occurred  at  the  time  and 
place  alleged  in  the  libel,  and  that  the  appellee  was  on  board  and 
was  injured  thereby,  but  denies  that  he  was  a  passenger  for  hire,  or 
that  the  explosion  was  the  consequence  of  negligence. 

The  evidence  shows  that  it  is  customary  for  the  masters  of  steam- 
boats to  permit  persons  whose  usual  employment  is  on  board  of  such 


LIABILITY   FOR   INJURIES.  \m 

boats  to  go  from  place  to  place  free  of  charge;  that  the  appeJ 
formerly  been  employed  as  a  waiter  on  board  this   boat;  and  just 
before  she  sailed  from  Sacramento  he  applied  to  the  master  fi 
free  passage  to  San  Francisco,  which  was  granted  to  him,  and  he 
came  on  board. 

It  has  been  urged  that  the  master  had  no  power  to  impose  any 
obligation  on  the  steamboat  by  receiving  a  passenger  without 
compensation. 

But  it  cannot  be  necessary  that  the  compensation  should  be  in 
money,  or  that  it  should  accrue  directly  to  the  owners  of  the  boat. 
If  the  master  acted  under  an  authority  usually  exercised  by  masters 
of  steamboats,  if  such  exercise  of  authority  must  be  presumed  to  be 
known  to  and  acquiesced  in  by  the  owners,  and  the  practice  is,  even 
indirectly,  beneficial 'to  them,  it  must  be  considered  to  have  been  a 
lawful  exercise  of  an  authority  incident  to  his  command. 

It  is  proved  that  the  custom  thus  to  receive  steamboat  men  is 
general.  The  owners  must  therefore  be  taken  to  have  known  it, 
and  to  have  acquiesced  in  it,  inasmuch  as  they  did  not  forbid  the 
master  to  conform  to  it.  And  the  fair  presumption  is,  that  the 
custom  is  one  beneficial  to  themselves.  Any  privilege  generally 
accorded  to  persons  in  a  particular  employment  tends  to  render  that 
employment  more  desirable,  and  of  course  to  enable  the  employer 
more  easily  and  cheaply  to  obtain  men  to  supply  his  wants. 

It  is  true  the  master  of  a  steamboat,  like  other  agents,  has  not  an 
unlimited  authority.  He  is  the  agent  of  the  owner  to  do  only  what 
is  usually  done  in  the  particular  employment  in  which  he  is  engaged. 
Such  is  the  general  result  of  the  authorities.  Smith  on  Mer.  Law, 
559;  Grant  v.  Norway,  10  Com.  B.  688,  S.  C.  2  Eng.  L.  and  Eq. 
337;  Pope  v.  Nickerson,  3  Story,  R.  475;  Citizens  Bank  v.  Nan- 
tucket Steamboat  Co. ,  2  Story,  R.  32.  But  different  employments 
may  and  do  hav.e  different  usages,  and  consequently  confer  on  the 
master  different  powers.  And  when,  as  in  this  case,  a  usage  appears 
to  be  general,  not  unreasonable  in  itself,  and  indirectly  beneficial  to 
the  owner,  we  are  of  opinion  the  master  has  power  to  act  under  it 
and  bind  the  owner. 

The  appellee  must  be  deemed  to  have  been  lawfully  on  board 
under  this  general  custom. 

Whether  precisely  the  same  obligations  in  all  respects  on  the  part 
of  the  master  and  owners  and  their  boat  existed  in  his  case,  as  in 
that  of  an  ordinary  passenger  paying  fare,  we  do  not  find  it  neces- 
sary to  determine.  In  the  Philadelphia  and  Reading  Railroad  ( !om- 
pany  v.  Derby,  14  How.  R.  486,  which  was  a  case  of  gratuitous 
carriage  of  a  passenger  on  a  railroad,  this  court  said:  "When  car- 
riers undertake  to  convey  persons  by  the  powerful  but  dangerous 
agency  of  steam,  public  policy  and  safety  require  that  they  should 
be  held  to  the  greatest  possible  care  and  diligence.  And  whethei 
the  consideration  for  such  transportation  be  pecuniary  or  otherwise, 


94:2  CARRIERS    OF    PASSENGERS. 

the  personal  safety  of  passengers  should  not  be  left  to  the  sport  of 
chance  or  the  negligence  of  careless  agents.  Any  negligence,  in 
such  cases,  may  well  deserve  the  epithet  of  gross." 

We  desire  to  be  understood  to  reaffirm  that  doctrine,  as  resting, 
not  only  on  public  policy,  but  on  sound  principles  of  law. 

The  theory  that  there  are  three  degrees  of  negligence,  described 
by  the  terms  slight,  ordinary,  and  gross,   has  been  introduced  into 
the  common  law  from  some  of  the  commentators  on  the  Roman  law. 
It  may  be  doubted  if  these  terms  can  be  usefully  applied  in  prac- 
tice.    Their  meaning  is  not  fixed,   or   capable  of   being  so.     One 
degree,  thus  described,  not  only  may  be  confounded  with  another, 
but  it  is  quite   impracticable  exactly  to   distinguish  them.     Their 
signification  necessarily  varies  according  to  circumstances,  to  whose 
influence  the  courts  have  been  forced  to  yield,  until  there  are  so 
many  real  exceptions  that  the  rules  themselves  can  scarcely  be  said 
to  have    a  general  operation.      In   Storer  v.  Gowen,  18  Maine  R. 
177,  the  Supreme  Court  of  Maine  say:  "How  much  care  will,  in  a 
given  case,  relieve  a  party  from  the  imputation  of  gross  negligence, 
or  what  omission  will  amount  to  the  charge,  is  necessarily  a  ques- 
tion of  fact,  depending  on  a  great  variety  of  circumstances  which 
the  law  cannot  exactly  define."     Mr.  Justice  Story,  Bailments,  §  11, 
says:  "Indeed,  what  is  common  or  ordinary  diligence  is  more  a 
matter  of  fact  than  of  law."     If  the  law  furnishes  no  definition  of 
the  terms  gross  negligence  or  ordinary  negligence,  which  can  be 
applied  in  practice,  but  leaves  it  to  the  jury  to  determine,  in  each 
case,  what  the  duty  was,  and  what  omissions  amount  to  a  breach 
of  it,   it  would  seem  that  imperfect  and  confessedly  unsuccessful 
attempts  to  define  that  duty  had  better  be  abandoned. 

Recently  the  judges  of  several  courts  have  expressed  their  dis- 
approbation of  these  attempts  to  fix  the  degrees  of  diligence  by  legal 
definitions  and  have  complained  of  the  impracticability  of  applying 
them.  Wilson  v.  Brett,  11  Meeson  &  Wels.  113  [56]  ;  Wyld  v.  Pickford, 
8  ib.  443,  461,  462;  Hinton  v.  Dibbin,  2  Q.  B.  646,  651.  It  must 
be  confessed  that  the  difficulty  in  defining  gross  negligence,  which 
is  apparent  in  perusing  such  cases  as  Tracy  et  al.  v.  Wood,  3  Mason, 
132,  and  Foster  v.  The  Essex  Bank,  17  Mass.  479,  R.,  would  alone 
be  sufficient  to  justify  these  complaints.  It  may  be  added  that  some 
of  the  ablest  commentators  on  the  Roman  law  and  on  the  Civil  Code 
of  France  have  wholly  repudiated  this  theory  of  three  degrees  of 
diligence  as  unfounded  in  principles  of  natural  justice,  useless  in 
practice,  and  presenting  inextricable  embarrassments  and  difficul- 
ties. See  Touillier's  Droit  Civil,  6th  vol.,  p.  239,  &c. ;  11th  vol., 
p.  203,  &c. ;  Makeldey,  Man.  Du  Droit  Roraain,  191,  &c. 

But  whether  this  term  gross  negligence  be  used  or  not,  this  par- 
ticular case  is  one  of  gross  negligence  according  to  the  tests  which 
have  been  applied  to  such  a  case. 

In  the  first  place,  it  is  settled  that  "  the  bailee  must  proportion 


LIABILITY    FOE    [NJTJRI1  ,,^ 

his  care  to  the  injury  or  loss  which  is  likely  to  be  sustained  by  any 
improvidence  on  his  part."     Story  on  Bailments,  §  \~>. 

It  is  also  settled   that,  if  the  occupation  or  employment  be  i 
requiring  skill,  the  failure  to  exert  that  needful  skill,  either  b< 
it  is  not  possessed  or  from  inattention,  is  gross  oeg]  Thus 

Heath,  J.,  in  Shields  v.  Blackburn,  1  H.  Bl.  1(>1,  say-:  "  It  a  man 
applies  to  a  surgeon  to  attend  him  in  a  disorder,  for  a  reward,  and 
the  surgeon  treats  him  improperly,  there  is  gross  negligence,  and  tin- 
surgeon  is  liable  to  an  action.  The  surgeon  would  also  be  liable  for 
such  negligence  if  he  undertook,  gratis,  to  attend  a  sick  person, 
because  his  situation  implies  skill  in  surgery."  And  Lord  Lough- 
borough declares  that  an  omission  to  use  skill  is  gross  negligence. 
Mr.  Justice  Story,  although  he  controverts  the  doctrine  of  Pothier 
that  any  negligence  renders  a  gratuitous  bailee  responsible  for  the 
loss  occasioned  by  his  fault,  and  also  the  distinction  made  by  Sir 
William  Jones  between  an  undertaking  to  carry  and  an  undertaking 
to  do  work,  yet  admits  that  the  responsibility  exists  where  there  is  a 
want  of  due  skill  or  an  omission  to  exercise  it.  And  the  same  may 
be  said  of  Mr.  Justice  Porter  in  Percy  v.  Millaudon,  20  Martin.  75. 
This  qualification  of  the  rule  is  also  recognized  in  Stanton  et  "/.  r. 
Bell  et  al.,  2  Hawks,  145. 

That  the  proper  management  of  the  boilers  and  machinery  of  a 
steamboat  requires  skill,  must  be  admitted.  Indeed,  by  the  Art 
of  Congress  of  August  30,  1852,  great  and  unusual  precautions  are 
taken  to  exclude  from  this  employment  all  persons  who  do  not  pos- 
sess it.  That  an  omission  to  exercise  this  skill  vigilantly  ami 
faithfully,  endangers,  to  a  frightful  extent,  the  lives  ami  limbs  of 
great  numbers  of  human  beings,  the  awful  destruction  of  life  in  our 
country  by  explosions  of  steam  boilers  but  too  painfully  proves. 
We  do  not  hesitate,  therefore,  to  declare  that  negligence  in  the  care 
or  management  of  such  boilers,  for  which  skill  is  necessary,  the 
probable  consequence  of  which  negligence  is  injury  and  loss  of  the 
most  disastrous  kind,  is  to  be  deemed  culpable  negligence,  render- 
ing the  owners  and  the  boat  liable  for  damages,  even  in  case  of  the 
gratuitous  carriage  of  a  passenger.  Indeed,  as  to  explosion  of 
boilers  and  flues,  or  other  dangerous  escape  of  steam  on  board 
steamboats,  Congress  has,  in  clear  terms,  excluded  all  such  cases 
from  the  operation  of  a  rule  requiring  gross  negligence  to  In- 
proved  to  lay  the  foundation  of  an  action  for  damages  to  person 
or  property. 

The  thirteenth  section  of  the  Act  of  July  7,  1838,  5  Stat,  at  Large, 
306,  provides:  ''That  in  all  suits  and  actions  against  proprietors  oi 
steamboats  for  injury  arising  to  persons  or  property  from  the  burst- 
ing of  the  boiler  of  any  steamboat,  or  the  collapse  of  a  flue,  or  other 
dangerous  escape  of  steam,  the  fact  of  such  bursting,  collapsi 
injurious  escape  of  steam  shall  be  taken  as  full  prima  facie  evidence 
sufficient  to  charge  the  defendant,  or  those  in  his  employment,  with 


944  CARRIERS   OF   PASSENGERS. 

negligence,  until  he  shall  show  that  no  negligence  has  been  com- 
mitted by  him  or  those  in  his  employment." 

This  case  falls  within  this  section;  and  it  is  therefore  incumbent 
on  the  claimants  to  prove  that  no  negligence  has  been  committed  by 
those  in  their  employment. 

Have  they  proved  this?  It  appears  that  the  disaster  happened 
a  short  distance  above  Benicia;  that  another  steamer,  called  the 
"Wilson  G.  Hunt,"  was  then  about  a  quarter  of  a  mile  astern  of  the 
"New  World,"  and  that  the  boat  first  arriving  at  Benicia  got  from 
twenty-five  to  fifty  passengers.  The  pilot  of  the  "  Hunt "  says  he 
hardly  knows  whether  the  boats  were  racing,  but  both  were  doing 
their  best,  and  this  is  confirmed  by  the  assistant  pilot,  who  says  the 
boats  were  always  supposed  to  come  down  as  fast  as  possible;  the 
first  boat  at  Benicia  gets  from  twenty-five  to  fifty  passengers.  And 
he  adds  that  at  a  particular  place  called  "  the  slough  "  the  "  Hunt " 
attempted  to  pass  the  "New  World."  Fay,  a  passenger  on  board 
the  "New  World,"  swears  that  on  two  occasions  before  reaching 
"the  slough"  the  "Hunt"  attempted  to  pass  the  "New  World,"  and 
failed;  that  to  his  knowledge  these  boats  had  been  in  the  habit  of 
contending  for  the  mastery,  and  on  this  occasion  both  were  doing 
their  best.  The  fact  that  the  "  Hunt "  attempted  to  pass  the  "  New 
World"  in  "the  slough"  is  denied  by  two  of  the  respondents'  wit- 
nesses, but  they  do  not  meet  the  testimony  of  Fay,  as  to  the  two 
previous  attempts.  Haskell,  another  passenger,  says:  "About  ten 
minutes  before  the  explosion  I  was  standing  looking  at  the  engine; 
we  saw  the  engineer  was  evidently  excited,  by  his  running  to  a  little 
window  to  look  out  at  the  boat  behind.  He  repeated  this  ten  or 
fifteen  times  in  a  very  short  time."  The  master,  clerk,  engineer, 
assistant  engineer,  pilot,  one  fireman,  and  the  steward  of  the  "New 
World  "  were  examined  on  behalf  of  the  claimants.  No  one  of  them, 
save  the  pilot,  denies  the  fact  that  the  boats  were  racing.  With  the 
exception  of  the  pilot  and  the  engineer,  they  are  wholly  silent  on 
the  subject.  The  pilot  says  they  were  not  racing.  The  engineer 
says:  "We  have  had  some  little  strife  between  us  and  the  '  Hunt' 
as  to  who  should  get  to  Benicia  first.  There  was  an  agreement  made 
that  we  should  go  first.  I  think  it  was  a  trip  or  two  before."  Con- 
sidering that  the  master  says  nothing  of  any  such  agreement,  that  it 
does  not  appear  to  have  been  known  to  any  other  person  on  board 
either  boat,  that  this  witness  and  the  pilot  were  both  directly  con- 
nected with  and  responsible  for  the  negligence  charged,  and  that 
the  fact  of  racing  is  substantially  sworn  to  by  two  passengers  on 
board  the  "New  World,"  and  by  the  pilot  and  assistant  pilot  of  the 
"Hunt,"  and  is  not  denied  by  the  master  of  the  "New  World,"  we 
cannot  avoid  the  conclusion  that  the  fact  is  proved.  And  certainly 
it  greatly  increases  the  burden  which  the  Act  of  Congress  has  thrown 
on  the  claimants.  It  is  possible  that  those  managing  a  steamboat 
engaged  in  a  race  may  use  all  that  care  and  adopt  all  those  precau- 


LIABILITY    FOE   INJURIES.  (,}- 

tions  which  the  dangerous  power  they  employ  renders  necessary  to 
safety.  But  it  is  highly  improbable.  The  excitement  engendered 
by  strife  for  victory  is  not  a  fit  temper  of  mind  for  men  on  whose 
judgment,  vigilance,  coolness,  and  skill  the  lives  of  passengers 
depend.  And  when  a  disastrous  explosion  lias  occurred  in  such  a 
strife,  this  court  cannot  treat  the  evidence  of  those  engaged  in  it, 
and  prima  facie  responsible  for  its  consequences,  as  sufficient  to  dis- 
prove their  own  negligence,  which  the  law  presumes. 

We  consider  the  testimony  of  the  assistant  engineer  and  fireman, 
who  are  the  only  witnesses  who  speak  to  the  quantity  of  steam 
carried,  as  wholly  unsatisfactory.  They  say  the  boiler  was  allowed 
by  the  inspector  to  carry  forty  pounds  to  the  inch,  and  that  when 
the  explosion  occurred  they  were  carrying  but  twenty-three  pounds. 
The  principal  engineer  says  he  does  not  remember  how  much  steam 
they  had  on.  The  master  is  silent  on  the  subject  and  says  nothing 
as  to  the  speed  of  the  boat.  The  clear  weight  of  the  evidence  is 
that  the  boat  was,  to  use  the  language  of  some  of  the  witnesses, 
doing  its  best.  We  are  not  convinced  that  she  was  carrying  only 
twenty-three  pounds,  little  more  than  half  her  allowance. 

This  is  the  only  evidence  by  which  the  claimants  have  endeavored 
to  encounter  the  presumption  of  negligence.  In  our  opinion  it  does 
not  disprove  it;  and  consequently  the  claimants  are  liable  to  damages, 
and  the  decree  of  the  District  Court  must  be  affirmed. 

Mr.  Justice  Daniel  dissented. 


McPADDEN  v.   NEW   YOEK   CENTRAL   R.  CO. 

44  X  Y.  478.     1871. 

Appeal  from  a  decision  of  the  General  Term  of  the  Supreme 
Court  in  the  seventh  district  upon  exceptions  there  heard  in  the 
first  instance,  granting  a  new  trial. 

This  action  was  brought  to  recover  for  injuries  sustained  by  the 
plaintiff,  while  a  passenger  upon  the  defendant's  road.  The  cause 
was  tried  at  the  Rochester  Circuit,  in  January,  1865;  and  it  appeared, 
among  other  things,  that  on  the  5th  day  of  January,  1864,  the  plain- 
tiff took  passage  on  a  train  at  Rochester  going  westerly,  intending 
to  go  to  Knowlesville.  The  train  stopped  at  Brockport,  and  there 
met  a  train  coming  east.  About  half  a  mile  west  of  Brockport  the 
two  passenger  cars  of  the  train  going  west  were  thrown  from  the 
track,  and  the  car  in  which  the  plaintiff  was  riding  was  overturnedj 
and  he  was  injured.  The  train  going  west  was  not  under  full  head- 
way, going  at  the  rate  of  about  twenty-five  miles  per  hour.  The 
train  going  east  passed  the  place  of  the  accident  at  the  rate  of 
twenty-five  to  thirty  miles  per  hour. 


946  CAEKIERS   OF   PASSENGERS. 

The  accident  was  caused  by  a  broken  rail,  —  a  piece  of  the  rail, 
about  four  feet  in  length,  being  broken  in  three  or  four  pieces.  All 
the  witnesses  who  testified  upon  the  subject  testified  that  the  rail 
was  a  good,  sound,  and  perfect  rail,  and  in  all  respects  properly 
placed  and  fastened,  and  they  attributed  the  breaking  to  the  cold- 
ness of  the  weather,  it  being  a  very  cold  morning.  A  track  watch- 
man went  over  the  track  three  miles  west  of  Brockport,  starting  at 
three  o'clock  that  morning,  and  a  train  followed  him  west  in  about 
an  hour.  He  then  returned  over  the  road  to  Brockport,  reaching 
there  a  little  before  six  o'clock,  a  short  time  before  the  accident. 
After  the  train  passed  east, he  had  no  time  to  go  over  the  road  again 
before  this  train  went  west.  When  he  went  over  the  road  he  found 
it  in  order.  The  plaintiff's  witnesses  testified  that  all  the  cars  were 
off  from  the  track  but  the  locomotive.  The  defendant's  witnesses 
testified  that  the  passenger  cars  and  the  hind  wheels  of  the  baggage 
car  were  off  the  track.  The  conductor  and  engineer  of  the  train 
going  eastward  testified  that  they  did  not  notice  any  jolt  at  the  place 
of  the  accident  of  their  train,  and  that  if  the  rail  had  been  broken 
and  displaced  by  their  train  they  would  have  noticed  it.  The 
engineer  of  the  train  going  west  testified  that  he  did  not  discover 
that  any  rail  was  displaced,  and  would  have  discovered  it  if  one  had 
been  displaced  before  his  engine  passed  over,  and  the  conductor  of 
this  train  testified,  that  he  could  feel  the  jog  when  a  rail  was  dis- 
placed. This  testimony  of  the  conductors  and  engineers  was  uncon- 
tradicted. 

At  the  close  of  the  evidence  the  counsel  for  the  defendant  moved 
for  a  nonsuit  upon  the  ground  that  there  was  no  proof  of  negligence 
or  omission  of  duty  on  the  part  of  the  defendant,  but  that  there  was 
clear  evidence  that  every  precaution  to  insure  safety  to  passengers 
had  been  taken.  The  counsel  for  the  plaintiff  then  asked  to  go  to 
the  jury  upon  the  question  whether  the  rail  was  broken  before  the 
train  going  west  came  upon  it.  The  court  refused  permission  to  him 
to  do  so,  and  nonsuited  the  plaintiff,  and  his  counsel  excepted,  but 
did  not  request  to  go  to  the  jury  upon  any  other  question. 

The  General  Term  made  an  order  granting  a  new  trial,  and  the 
defendant  appealed  from  such  order  to  this  court,  stipulating  for 
judgment  absolute  in  case  the  order  should  be  affirmed. 

Earl,  C.  The  General  Term  granted  a  new  trial,  upon  the  ground 
that  the  judge,  at  the  Circuit,  should  have  submitted  to  the  jury  the 
question,  whether  the  rail  was  broken  before  it  was  reached  by  the 
train  going  west  carrying  the  plaintiff;  and  it  held,  if  it  was  thus 
broken ,  that  the  defendant  was  liable,  irrespective  of  any  question 
of  negligence,  within  the  principle  of  the  case  of  Alden  v.  The  N. 
Y.  C.  R.  R.  Co.,  26  N.  Y.  102,  upon  the  ground  that  it  was  bound 
to  furnish  a  road  adapted  to  the  safe  passage  of  trains,  or,  in  other 
words,  "a  vehicle-worthy  road." 

I  am  obliged  to  differ  with  the  General  Term,  for  two  reasons? 


LIABILITY    FOB    INJURIES.  947 

1st.  If  the  rail  was  broken  before  it  was  reached  by  the  train  goin 
west,  it  must  have  been  broken  by  the  train  going  east  shortly 
before,  and  there  is  no  evidence  whatever  that  it  was  broken  by 
that  train.  All  the  evidence  tends  to  show  that  it  was  broken  by 
the  train  going  west.  Such  is  the  evidence  of  the  conductors  and 
engineers  of  both  trains.  There  is  no  presumption  that  the  rail  v.. 
broken  before  this  train  reached  it.  It  is  unquestioned  that  tin- 
accident  was  caused  by  the  broken  rail,  and  if  the  plaintiff  claimed 
that  the  defendant  was  liable,  because  the  rail  was  broken  before  tin- 
train  upon  which  he  was  riding  reached  it,  it  was  incumbent  upon 
him  to  prove  it.  This  he  failed  to  do;  and  if  the  jury  upon  the 
evidence  had  found  it,  it  would  have  been  the  duty  of  the  court  to 
set  the  verdict  aside  as  against  the  evidence. 

But  there  is  another  reason.  It  does  not  appear  that  plaintiff's 
counsel,  upon  the  trial,  claimed  that  he  had  shown  any  negligence 
against  the  defendant,  and  he  did  not  claim  to  go  to  the  jury  upon 
any  such  question,  and  the  General  Term  did  not  grant  a  new  trial 
upon  the  ground  that  there  was  any  question  of  negligence  in  the 
case,  which  ought  to  have  been  submitted  to  the  jury,  but  upon  the 
ground  above  stated. 

In  the  case  of  Alden  v.  The  New  York  Central  Railroad  Company, 
the  accident,  by  which  the  plaintiff  was  injured,  was  caused  by  the 
breaking  of  an  axle  of  the  car  in  which  the  plaintiff  was  riding,  and 
it  was  held  that  a  common  carrier  is  bound  absolutely,  and  irrespec- 
tive of  negligence,  to  provide   road  worthy   vehicles,  and   that  the 
defendant  was  liable  for  the  plaintiff's  injuries,  caused  by  a  crack  in 
the  axle,  although  the  defect  could  not  have  been  discovered  by  any 
practicable  mode  of  examination.     That  case  was  a  departure  from 
every  prior  decision  and  authority  to  be  found  in  the  books  of  this 
country  or  England,  and,  so  far  as  I  can  learn,  has  never  been  fol- 
lowed anywhere  out  of  this    State.      It  was   in   conflict  with   I 
previous  case,  in  the  same  court,  of  Hegeman  v.  The  Western  Kail- 
road  Corporation,  3  Kern.  9.     The  only  authority  cited  to  sustain 
the   decision  was  the   English   case  of  Sharp  v.  Grey,  9  Bing.  4.">7. 
and  yet  the  decision  has  been  distinctly  repudiated  in  England,  in 
the  well-considered  case  of  Readhead  v.  Midland  Railway  Co. ,  first 
decided  in  the  Queen's  Bench,  Law  Reports,  2  Q.  B.  412,  and  then 
on  appeal  in  the  Exchequer  Chamber,  Law  Reports,  4  Q.  B.  379, 
where  it  was  unanimously  affirmed  in  1869;  and  the  court  held  that 
the  contract,  made  by  a  common  carrier  of  passengers  for  hire,  with 
a  passenger,  is  to  take  due  care  (including  in  that  term  the  use  of 
skill  and  foresight)  to  carry  the  passenger  safely,  and  that  it  does 
not  contain  or  imply  a  warranty  that  the  carriage  in  which  he  travels 
shall  be  in  all  respects  perfect  for  its  purpose  and  road  worthy.      In 
the  Exchequer  Chamber  Mr.  Justice  Smith,  writing  the  opinion  of 
the  court,  alludes  to  the  case  of   Alden  v.  The  New  York  Central 
Railroad  Company,  and  dissents   from   it,  and  comments   upon   the 


948  CARRIERS   OF   PASSENGERS. 

case  of  Sharp  v.  Grey,  relied  upon  in  that  case,  and  he  shows  clearly 
that  it  was  no  authority  for  the  broad  doctrine  laid  down  in  that 
case.  He  says :  "  We  have  referred  somewhat  fully  to  this  case, 
Sharp  v.  Grey,  because  it  was  put  forward  as  the  strongest  authority 
in  support  of  the  plaintiff's  claim,  which  can  be  found  in  the  English 
courts,  and  because  it  was  relied  on  by  the  judges  of  the  Court  of 
Appeals,  in  New  York,  in  a  decision  which  will  be  afterward 
referred  to.  But  the  case,  when  examined,  furnishes  no  sufficient 
authority  for  the  unlimited  warranty  now  contended  for.  The  facts 
do  not  raise  the  point  for  decision."  Hence  the  case  of  Alden  v. 
The  New  York  Central  Railroad  Company  has  no  foundation  of 
authority,  whatever,  to  rest  on,  and  the  only  reason  given  for  the 
decision  is  that  the  new  rule  adopted  would  be  plainer  and  easier 
of  application  than  the  one  that  had  been  recognized  and  acted  upon 
for  hundreds  of  years.  It  was  always  supposed  that  there  was  a 
difference,  founded  upon  substantial  reasons,  between  the  liability 
of  the  common  carrier  of  goods  and  the  common  carrier  of  passen- 
gers. The  former  was  held  to  warrant  the  safe  carriage  of  the 
goods,  except  against  loss  or  damage  from  the  act  of  God  or  the 
public  euemy ;  but  the  latter  was  held  to  contract  only  for  due  and 
proper  care  in  the  carriage  of  passengers. 

I  have  thus  commented  upon  and  alluded  to  the  case  of  Alden  v. 
The  New  York  Central  Railroad  Company,  with  no  design  to  repu- 
diate it  as  authority,  but  for  the  purpose  of  claiming  that  it  is  a 
decision  which  should  not  be  extended.  I  am  unwilling  to  apply  it 
to  every  case  that  apparently  comes  within  its  principle;  nor  would 
I  limit  it  to  the  car  in  which  the  passenger  was  riding.  The  whole 
train  must  be  regarded  as  the  vehicle;  and  the  engine  and  all  the 
cars  attached  together  must  be  free  from  defect  and  roadworthy, 
irrespective  of  negligence.  So  far,  and  no  farther,  am  I  willing  to 
regard  that  case  as  authority.  Shall  it  be  applied  to  steamboats 
and  vessels,  common  carriers  of  passengers  upon  the  ocean  and  our 
inland  waters?  Shall  it  apply  to  innkeepers,  proprietors  of  theatres 
and  other  places  of  public  resort,  who  invite  the  public  into  their 
buildings,  for  a  compensation?  And  shall  all  such  persons  be  held 
to  an  implied  warranty  that  their  buildings,  with  the  appurtenances, 
are  suitable  and  proper,  and  free  from  all  defects  which  no  foresight 
could  guard  against  or  skill  detect?  Shall  it  be  applied  to  the  road- 
bed of  a  railroad?  If  so  applied,  where  shall  it  stop?  It  must  also 
extend  to  the  bridges,  masonry,  signals,  and,  in  fact,  to  all  the 
different  parts  of  the  system  employed  and  used  in  the  transport  of 
passengers  by  railroad.  And,  as  railroad  companies  are  responsible 
for  the  skill  and  care  of  all  their  human  agents,  such  an  extension 
of  that  decision  would  make  them  substantial  insurers  of  the  safety 
of  all  their  passengers,  and  thus  practically  abolish  the  distinction 
between  the  liability  of  the  carriers  of  passengers  and  the  carriers 
of  goods.     While  such  a  rule  would  "  be  plain  and  easy  of  applica- 


LIABILITY   FOR   INJURIES. 


949 


tion,"  I  am  not  satisfied  that  it  would  be  either  wise  or  just.  Rail- 
roads are  great  public  improvements,  beneficial  to  the  owners,  and 
highly  useful  to  the  public.  There  is  a  certain  amount  of  risk  inci- 
dent to  railroad  travel  which  the  traveller  knowingly  assumes;  and 
public  policy  is  fully  satisfied  when  railroad  companies  are  held  to 
the  most  rigid  responsibility  for  the  utmost  care  and  vigilance  for 
the  safety  of  travellers. 

If,  therefore,  the  jury  had  found  that  the  rail  was  broken  by  the 
eastward-bound  train,  it  would  still  have  been  a  case  of  mere  a< 
dent,  caused  without  any  want  of  proper  care  and  vigilance  on  the 
part  of  the  defendant,    and  the   defendant  would   not   have    been 
liable. 

I  am,  therefore,  in  favor  of  reversing  the  order  of  the  General 
Term,  and  ordering  judgment  upon  the  nonsuit  for  the  defendant, 
with  costs.  * 

Lott,  Ch.  C,  and  Leonard,  C,  delivered  opinions  in  favor  of 
reversal. 

Order  of  the  General  Term  reversed,  with  costs,  and  judgment 
upon  the  nonsuit  ordered,  with  costs.     Hunt,  C,  dissenting. 


GRAND   RAPIDS,    etc.,    R.    CO.    v.    HUNTLEY. 
38  Mich.  537.     1878. 

Trespass  on  the  case.     Defendant  brings  error. 

Campbell,  C.  J.  Suit  was  brought  by  Mrs.  Huntley  for  personal 
injuries  suffered  on  the  5th  day  of  November,  1874,  by  reason  of  an 
accident  caused  by  a  passenger  car  being  thrown  from  the  track  and 
upset.  The  testimony  showed  that  the  mischief  was  caused  by  the 
breaking  of  an  axle  containing  a  large  flaw,  within  the  wheel  or 
near  its  edge.  Those  witnesses  who  made  any  actual  examination 
found  the  flaw  entirely  within  the  axle,  and  covered  by  a  small 
thickness  of  sound  metal.  The  suit  was  tried  in  April,  1877,  about 
two  years  and  a  half  after  the  accident.  Mrs.  Huntley  was  injured 
in  the  shoulder,  and  claimed  that  the  injury  was  permanent. 

Testimony  was  introduced  bearing  upon  the  condition  of  the  oars 
and  track,  and  the  speed  of  the  train,  as  well  as  concerning  the  char- 
acter of  the  injury.  The  principal  questions  arise  upon  the  medical 
testimony  and  upon  the  charge;  although  some  other  points  are 
presented. 

The  principal  remaining  questions  arise  out  of  the  rules  of  lia* 
bility  established  by  the  .charge. 


950  CARRIERS    OF   PASSENGERS. 

The  primary  cause  of  the  accident  was  the  broken  axle.  Some 
stress  seems  also  to  have  been  laid  on  the  condition  of  the  track  and 
the  rate  of  speed.  So  far  as  appears  upon  the  record,  we  have  not 
discovered  any  proper  evidence  to  authorize  these  matters  to  be  con- 
sidered. There  is  no  testimony  from  such  persons  as  are  qualified 
to  give  opinions  on  the  subject  that  either  the  condition  of  the  road 
or  the  speed  indicated  negligence.  Whether  the  structure  of  the 
road  is  such  as  to  warrant  fast  travel  is  not  a  question  which  usually 
belongs  to  ordinary  witnesses,  and  it  would  be  dangerous  to  allow 
a  jury  to  act  on  its  own  suspicious  or  prejudices  in  such  a  matter. 
The  road,  if  in  such  a  condition  as  would  be  regarded  as  safe  by 
railroad  men  of  usual  intelligence  and  experience,  could  not  be  com- 
plained of  for  any  possible  deficiencies  which  would  not  be  regarded 
by  competent  persons  as  existing,  nor  could  the  rate  of  speed  be 
properly  held  excessive  without  similar  evidence  from  men  of 
experience.  It  is  a  matter  of  daily  occurrence  in  many  parts  of  the 
country,  and  of  occasional  occurrence  everywhere,  for  cars  to  be  run 
at  very  high  rates  of  speed  on  railway  tracks.  No  particular  rate 
can  be  assumed,  without  proof,  to  be  dangerous. 

The  main  question,  however,  relates  to  responsibility  for  the  con- 
dition of  the  axle.  It  was  held  by  the  court  below  that  no  diligence 
or  care  in  the  railroad  company  could  exempt  them  from  want  of 
care  in  the  manufacturers  of  the  cars  and  axles. 

This  doctrine  is,  we  think,  entirely  incorrect.  Carriers  of  freight 
are  liable  whether  careful  or  not,  for  any  act  or  damage  not  caused 
by  the  act  of  God,  or  of  the  public  enemy.  Their  liability,  therefore, 
does  not  arise  from  negligence  or  want  of  care.  It  arises  from  their 
failure  to  make  an  absolutely  safe  carriage  and  delivery,  which  they 
insure  by  their  undertaking.  The  analogies  of  carriers  of  freight 
have  nothing  to  do  with  passenger  carriers.  These  are  liable  only 
when  there  has  been  actual  negligence  of  themselves  or  their  ser- 
vants. If  they  exercise  their  functions  in  the  same  way  with  pru- 
dent railway  companies  generally,  and  furnish  their  road  and  run  it 
in  the  customary  manner  which  is  generally  found  and  believed  to 
be  safe  and  prudent,  they  do  all  that  is  incumbent  upon  them.  M. 
C.  R.  R.  v.  Coleman,  28  Mich.  440;  G.  R.  &  I.  R.  R.  v.  Judson, 
34  Mich.  506;  Ft.  Wayne,  J.  &  S.  R.  R.  v.  Gildersleeve,  33  Mich. 
133;  M.  C.  R.  R.  v.  Dolan,  32  Mich.  510.  This  general  doctrine 
the  court  below  laid  down  very  clearly,  but  qualified  it  so  as  to 
make  them  absolutely  responsible  for  the  omissions  or  lack  of  skill 
or  attention  of  the  manufacturers  from  whom  they  made  their  pur- 
chases of  stock,  however  high  in  standing  and  reputation  as  reliable 
persons. 

There  is  no  principle  of  law  which  places  such  manufacturers  in 
the  position  of  agents  or  servants  of  their  customers.  The  law  does 
not  contemplate  that  railroad  companies  will  in  general  make  their 
own  cars  or  engines,  and  they  purchase  them  in  the  market,  of  per- 


LIABILITY    FOR    INJURIES.  95] 

sons  supposed  to  be  competent  dealers,  just  as  they  buy  their  ol .. 
articles.     All  that  they  can  reasonably  be  expected  to  do  is  to  pur- 
chase such  cars  and  other  necessaries  as  they  have  reason  to  beli 
will  be  safe  and  proper,  giving  them  such  inspection  as  is  usual  and 
practicable  as  they  buy  them.     When  they  make  such  an  examina- 
tion, and  discover  no  delects,  they  do  all  that  is  practicable,  and  it 
is  no  neglect  to  omit  attempting  what  is  impracticable.     They  have 
a  right  to  assume  that  a  dealer  of  good  repute  has  also  used  such 
care  as  was  incumbent  on  him,  and  that  the  articles  purchased  of 
him  which  seem  right  are  right  in  fact.     Any  other  rule  would  make 
them  liable  for  what  is  not  negligence,  and  put  them  practically  on 
the  footing  of  insurers.     The  law  has  never  attempted  to  hold  pas- 
senger carriers  for  anything  which  they  could  not  avoid  by  their  own 
diligence. 

The  case  of  Richardson  v.  Great  Eastern  Railway  Co.,  L.  It.  1  C. 
P.  Div.  342,  Court  of  Appeals,  is  quite  in  point  and  establishes  the 
doctrine  as  it  has  been  fixed  by  the  general  understanding  since  the 
carrying  of  passengers  has  been  the  subject  of  legal  discussion. 
That  was  a  passenger  case,  depending  on  the  doctrine  of  negligence 
as  applied  to  defective  trucks.  The  axle  of  a  truck  belonging  to 
another  company,  brought  on  the  line  of  the  respondents  to  be  for- 
warded, was  broken  by  reason  of  a  flaw  which  might  have  been  dis- 
covered by  a  minute  examination,  but  which  was  not  discovered,  in 
fact,  by  such  an  examination  as  was  customary  and  reasonably  prac- 
ticable. It  was  held  no  negligence  could  be  imputed  for  not  making 
a  more  minute  examination  than  was  made.  In  that  case  the  court 
also  held  that  it  was  not  within  the  province  of  a  jury  to  lay  down 
rules  after  their  own  opinion,  which  imposed  duties  beyond  the 
usual  practice  of  prudent  railways.  See  also  Daniel  v.  Metropolitan 
Railway  Co.,  L.  R.  5  H.  of  L.  45,  upon  the  right  of  a  railway  com- 
pany to  assume  there  is  no  negligence  in  others  over  whom  they 
exercise  no  control. 

The  injustice  and  illegality  of  holding  passenger  carriers  to  any- 
thing like  a  warranty  of  their  carriages  was  very  fully  discussed  and 
asserted  in  Readhead  v.  Midland  Ry.  Co.,  L.  R.  4  Q.  B.  379.  rl 
New  York  cases  which  were  relied  on  upon  the  argument  of  the 
present  cause  were  considered  in  the  light  of  a  large  number  oi 
decisions,  and  disapproved,  as  we  think,  correctly.  They  entirely 
ignore  the  true  ground  of  responsibility  as  depending  on  the  actual 
negligence  of  the  carrier.  There  is  no  such  thing  as  implied  negli- 
gence, when  there  is  none,  in  fact. 

We  think  the  judgment  erroneous,  and  it  must  be  reversed  with 
costs  and  a  new  trial  be  granted. 


952  CARRIERS    OF   PASSENGERS. 


PERSHING  v.    CHICAGO,    etc.,   R.   CO. 
71  Iowa,  561.     1887. 

On  the  eighth  day  of  February,  1885,  a  passenger  train  on  defend- 
ant's railway  was  derailed,  as  is  supposed,  by  a  broken  rail,  at  a 
point  near  a  bridge  over  a  gully  or  ravine.  When  the  train  wrent 
upon  the  bridge,  the  wheels  on  one  side  passed  outside  of  the  guard- 
rail, and  the  bridge  was  broken  down,  and  the  car  in  which  the 
plaintiff's  intestate  was  riding  as  a  passenger  was  thrown  into  the 
gully  or  ravine,  and  she  received  injuries  which  caused  her  death. 
This  action  was  brought  for  the  recovery  of  the  damages  sustained 
by  her  estate.  There  was  a  verdict  and  judgment  for  defendant, 
and  plaintiff  appeals. 

Reed,  J.  It  is  alleged  in  the  petition  that  the  injury  was  caused 
by  the  negligence  of  the  defendant,  and  that  its  negligence  con- 
sisted (1)  in  the  manner  in  which  its  track  and  bridge  were  con- 
structed and  maintained,  the  latter  being  insufficient;  and  (2)  in  the 
manner  in  which  the  train  was  being  run  at  the  time  of  the  acci- 
dent. The  evidence  is  not  contained  in  the  abstract,  but  it  is  recited 
in  the  "bill  of  exceptions  "  that  plaintiff  introduced  evidence  tending 
to  prove  the  occurrence  of  the  accident  and  injury,  and  that  the 
deceased  wras  not  guilty  of  any  contributory  negligence,  and  that 
the  accident  was  caused  by  the  negligent  manner  in  which  the  track 
and  bridge  were  constructed  and  maintained,  and  the  negligent 
manner  in  which  the  train  was  being  run  at  the  time,  and  by  the 
insufficiency  of  the  bridge,  and  that  he  then  rested  his  cause;  that 
the  defendant  thereupon  introduced  evidence  tending  to  prove  that 
its  road,  and  said  bridge,  and  its  rolling  stock,  and  its  servants 
and  agents,  were  in  all  respects  such  as  were  accepted  by,  and  were 
in  general  use,  and  found  to  be  sufficient  and  approved  by  the  best 
and  most  skilfully  managed  railroads  of  the  country,  doing  a  like 
business  under  like  circumstances  wTith  it;  and  the  selection  of  its 
materials,  and  the  plan  and  construction  of  its  roadway,  track, 
bridges,  and  rolling  stock,  and  the  selection  of  its  employees,  ser- 
vants, and  agents,  and  the  inspection  and  repairs  of  its  road  and 
machinery,  and  appliances  connected  with  the  operation  of  the 
road,  were  such  as  the  best,  most  carefully,  prudently,  and  skilfully 
managed  railroads  in  the  country  exercise  and  require,  doing  a  like 
business,  and  under  like  circumstances;  and  that  the  bridge  went 
down,  and  that  the  car  in  which  the  intestate  Avas  riding  was  thrown 
into  the  ravine,  by  reason  of  the  derailment  of  the  train,  at  a  point 
378  feet  from  the  bridge;  that  the  ties,  rails,  and  fastenings,  and  the 
ballast  thereunder  at  that  point,  and  between  there  and  the  bridge, 


LIABILITY   FOE   INJURIES.  953 

were  in  all  respects  such  as  had  been  found  sufficient  by  the  n 
skilfully  and  prudently  managed  railroads  of  the  country,  doing  a 
like  business,  under  similar  circumstances;  that  the  same  were  from 
time  to  time,  and  as  frequently  as  by  other  railroads,  in  d  in 

the  usual  way  of  inspecting  such  appliances  by  the  most  carefully 
and  prudently  managed  railroads  of  the  country,  by  an  empli 
competent  skill  and  experience  in  such  matters;  and  that  the  rails 
and  joint  fastenings  appeared  sound,  and  all  their  supports  sound 
and  secure;  and  that  there  were  no  flaws  or  defects  visible  that 
could  have  been  discovered  by  such  inspection;  and  that  the  shock 
or  blow  which  caused  the  bridge  to  fall  was  of  unusual  and  extraor- 
dinary violence,  and  that  the  bridge  would  not  otherwise  have  gone 
down,  and  that  the  guard-rails  on  the  bridge  were  such  as  were 
usually  and  customarily  used  by  the  most  skilfully  managed  rail- 
roads of  the  country,  under  like  circumstances. 

In  rebuttal,  plaintiff  introduced  evidence  tending  to  prove  that 
the  bridge  was  not  sufficient,  either  in  plan  or  construction;  that  the 
guard-rails  were  not  of  sufficient  size,  and  were  not  properly  placed 
or  fastened;  that  the  joint  fastenings  at  the  point  at  which  the 
derailment  occurred  were  insufficient,  and  were  broken  prior  to  the 
occurrence  of  the  derailment;  and  that  the  break  might  have  been 
discovered,  by  a  careful  and  proper  inspection,  before  the  passage  of 
the  train. 

The  errors  assigned  all  relate  to  the  instructions  given  by  the  court 
to  the  jury. 

I.  In  the  seventh,  eighth,  and  thirteenth  instructions,  the  jury 
were  told,  in  effect,  that  the  burden  was  on  plaintiff  to  show  that 
the  injury  was  caused  by  the  negligence  of  the  defendant;  but  that, 
if  he  had  established  that  the  accident  was  attended  by  circum- 
stances showing  that  it  was  caused  by  the  defective  construction  of 
the  roadway,  bridge,  track,  or  the  fastenings  of  the  rail  at  the  point 
where  the  derailment  occurred,  or  its  train  or  cars,  or  by  the  man- 
agement  or  running  of  the  train,  this  would  raise  a  presumption  of 
negligence,  and  would  cast  upon  defendant  the  burden  of  proving 
that  it  was  not  caused  by  any  negligence  or  want  of  skill  on  its  part, 
either  in  the  construction  or  maintenance  of  its  roadway,  track,-  or 
bridge,  or  in  the  management  of  the  train,  or  the  condition  of  the 
cars,  but  that  this  presumption  extended  only  to  those  portions  of 
the  track,  machinery,  or  bridge  which  the  circumstances  of  the  acci- 
dent indicated  were  possibly  defective,  and  it  was  not  required  to 
prove  that  nothing  about  its  entire  train  and  roadway  were  defec- 
tive; and  that  the  burden  cast  upon  it  by  proof  of  the  happenii 
the  accident,  and  the  attending  circumstances,  only  required  it  to 
show  that,  as  to  the  matters  which  the  circumstances  indicated 
were  the  cause  of  the  accident  and  injury,  it  had  exercised  due  care; 
and  that  it  was  not  required  to  satisfactorily  explain  the  reason  of 
the  breaking  of  the  rail,  and  the  derailment  of  the  train,  and  the 


954  CARRIERS    OF   PASSENGERS. 

breaking  down  of  the  bridge,  but  was  only  required  to  prove  that 
these  things  did  not  occur  through  any  negligence  on  its  part. 

The  point  urged  by  counsel  for  appellant  is  that  the  instructions 
are  erroneous,  in  that  they  limit  the  burden  imposed  upon  defendant 
by  the  evidence  of  the  occurrence  of  the  accident,  and  the  attendant 
circumstances,  to  proof  merely  that  it  had  not  been  negligent  in 
respect  to  those  matters  which  the  circumstances  indicated  were  the 
cause  of  the  injury.  Their  position  is  that  the  presumption  which 
arises  upon  proof  of  the  happening  of  the  accident  is  not  a  mere 
presumption  of  negligence  as  to  some  specific  matter,  but  is  a  pre- 
sumption of  general  negligence  on  the  part  of  the  carrier;  or,  in 
other  words,  they  insist  that  the  presumption  is  that  he  is  legally 
liable  for  the  injury,  and  that  this  presumption  can  be  overcome 
only  by  proof  that  it  was  caused  by  inevitable  accident,  and  that  it 
follows  necessarily  from  this  that  he  must  account  for  the  accident, 
and  show  that  he  was  free  from  all  negligence  in  the  matter. 

The  rule  which  casts  the  burden  of  proof  on  the  carrier  is  a  rule 
of  evidence  having  its  foundation  in  considerations  of  policy.  It 
prescribes  the  quantum  of  proof  which  the  passenger  is  required  to 
produce  in  making  out  his  case  originally,  and  he  is  entitled  to 
recover  on  that  proof,  unless  the  carrier  can  overcome  the  presump- 
tion which  arises  under  the  rule  from  the  facts  proven.  Caldwell  v. 
Steamboat  Co.,  47  N.  Y.  282;  Thomp.  Carr.  209. 

The  rule  undoubtedly  requires  the  carrier  to  prove  his  own  free- 
dom from  negligence  as  to  the  cause  of  the  injury.  But  that,  it 
appears  to  us,  is  the  doctrine  of  the  instructions.  The  immediate 
cause  of  the  injury  to  plaintiff's  intestate  was  the  breaking  down 
of  the  bridge,  and  the  consequent  precipitation  of  the  car  into  the 
ravine;  and  this  was  occasioned  by  the  blow  or  concussion  by  the 
derailed  train.  In  seeking  for  the  cause  of  the  injury,  then,  it 
became  necessary  to  inquire  as  to  the  cause  of  the  derailment  of  the 
train,  and  whether  there  was  any  defect  in  the  track,  or  roadway, 
or  bridge,  or  in  the  cars  or  machinery  of  the  train,  or  any  negligence 
in  the  management  of  it  at  the  time;  for  the  circumstances  indi- 
cated unmistakably  that  the  cause  of  the  accident  was  to  be  found  in 
some  of  these  matters.  They  constituted  the  subject  of  the  inquiry 
as  to  this  branch  of  the  case,  and  defendant  very  properly  confined 
its  proof  as  to  the  diligence  and  care  it  had  exercised,  to  that  subject. 

As  there  was  nothing  to  indicate  that  any  other  matter  could  have 
contributed  to  the  accident,  it  could  not  be  required  to  show  that  it 
had  been  careful  as  to  other  matters.  Such  evidence  would  clearly 
have  been  immaterial,  and  the  holding  of  the  instructions  is  that  it 
was  not  required  to  go  beyond  the  cause  of  the  inquiry  in  making 
proof  of  care  and  diligence.  The  holding  that  it  was  not  required 
to  give  a  satisfactory  explanation  of  the  cause  of  the  breaking  of  the 
rail  and  bridge  is  supported  by  Tuttle  v.  Chicago,  R.  I.  &  P.  R'y  Co., 
48  Iowa,  236. 


LIABILITY    FOR    INJURIES. 

II.     The  following  instructions  were  given  by  the  Circuit  Court: 
"It  is  a  duty  of  a  railway  company,  employed  in  transporting  | 
sengers,  to  do  all  that  human  care,  vigilance,  and  foresight  can  , 
onably  do,  consistent  with  the  mode  of  conveyance  and  the  pracl 
operation  of  the  road,  in  providing  safe  coaches,  machinery,  I 
rails,  angle-bars,  or  splices,  bridges  and  roadway,  and  in    the   i 
duct  and  management  of  its  trains  for  the  safety  of  its  |  jers, 

and  to  keep  the  same  in  good  repair.  The  utmost  degree  of  . 
which  the  human  mind  is  capable  of  inventing  or  producing,  is  not 
required;  but  the  highest  degree  of  care,  vigilance,  and  foresight  that 
is  reasonably  practicable  in  the  conduct  and  management  of  its  road 
and  business  is  required.  .  .  .  Common  carriers  of  passengers  are 
held  to  the  very  highest  degree  of  care  and  prudence  that  human 
care,  vigilance,  and  foresight  could  reasonably  Ao,  which  is  consistent 
with  the  practical  operation  of  their  road,  and  the  transaction  of 
their  business;  yet  they  are  not  absolute  insurers  of  the  safety  of 
their  passengers;  and  if  you  find  that  the  defendant  exercised  all 
reasonably  practical  care,  diligence,  and  skill  in  the  construe; 
preservation,  inspection,  and  repairs  of  its  road-bed,  bridges,  tracl;. 
rails,  angle-bars,  or  splices,  in  the  management  and  operation  of  its 
road,  and  of  the  train,  at  the  time  of  the  accident  alleged  and  shown 
to  have  occurred,  and  that  the  accident  could  not  have  been  pre- 
vented by  the  use  of  the  utmost  practical  care,  diligence,  ami  skill 
consistent  with  the  practical  operation  of  its  road,  and  the  transac- 
tion of  its  business,  then  plaintiff  cannot  recover  in  this  action." 

The  rule  which  has  been  uniformly  recognized  and  enforced  in 
this  State,  is  that  the  carrier,  in  the  conduct  and  management  of  his 
business,  and  as  to  all  the  appliances  made  use  of  in  the  business,  is 
bound  to  exercise  the  highest  degree  of  care  and  diligence  for  the 
convenience  and  safety  of  his  passengers,  and  he  is  held  liable  for 
the  slightest  neglect.  Frink  v.  Coe,  4  G.  Greene,  555;  Sales  <•. 
Western  Stage  Co.,  4  Iowa,  574;  Bonce  v.  Dubuque  St.  R'y  Co..  53 
id.  278;  Kellow  v.  Central  Iowa  R'y  Co.,  68  id.  470.  It  is  insisted 
that  the  instructions  are  in  conflict  with  this  rule.  The  position  of 
counsel  is  that,  by  the  use  of  the  words  reasonable,  reasonably  j>r<ir- 
ticable,  and  reasonably  practical  in  the  instructions,  the  care  for  the 
safety  of  the  passenger  required  of  the  carrier  is  lowered,  and  he  is 
required  to  exercise  reasonable  or  ordinary  care  only.  It  will  be 
observed,  however,  that  these  words,  as  they  are  used  in  the 
instructions,  while  they  to  some  extent  limit  the  degree  of  care 
required  of  the  carrier,  have  special  reference  to  the  practical  opera- 
tion of  the  railroad,  and  the  conduct  of  the  business.  When  the 
instructions  are  scrutinized,  it  will  be  found  that  the  doctrine 
announced  by  them  is  that  defendant  was  bound  to  exercise  the 
highest  degree  of  care  and  diligence  which  was  reasonably  consistent 
with  the  practical  operation  of  its  railroad,  and  the  conducting  of 
its  business;  and  this  is  right.     It  is  doubtless  true  that  precautions 


956  CARRIERS    QF    PASSENGERS. 

could  be  used  in  the  construction  and  operation  of  railroads  that 
would  prevent  many  of  the  accidents  winch  occur  as  they  are  con- 
structed and  operated.  It  sometimes  happens  that  a  derailed  train 
is  precipitated  from  a  high  embankment,  and  the  lives  of  its  passen- 
gers endangered  or  destroyed.  Accidents  of  that  character  could  be 
avoided  by  constructing  all  railroad  embankments  of  such  a  width 
that  a  derailed  train  or  car  would  come  to  a  stop  before  reaching  the 
declivity.  But  this  would  add  immensely  to  the  cost  of  construct- 
ing such  improvements,  and,  if  required,  would  in  many  cases  pre- 
vent their  construction  entirely.  If  passenger  trains  were  run  at 
the  rate  of  ten  miles  per  hour,  instead  of  from  twenty -five  to  forty 
miles,  it  is  probable  that  all  danger  of  derailment  would  be  avoided. 
But  railroad  companies  could  not  reasonably  be  required  to  adopt 
that  rate  of  speed.  Their  roads  are  constructed  with  a  view  to  rapid 
transit,  and  the  travelling  public  would  not  tolerate  the  running  of 
trains  at  that  low  speed.  When  it  is  said  that  they  are  held  to  the 
highest  degree  of  care  and  diligence  for  the  safety  of  their  passen- 
gers, it  is  not  meant  that  they  are  required  to  use  every  possible 
precaution;  for  that,  in  many  instances,  would  defeat  the  very  ob- 
jects of  their  employment.  There  are  certain  dangers  that  are 
necessarily  incident  to  that  mode  of  travel,  and  these  the  passenger 
assumes  when  he  elects  to  adopt  it.  But  all  that  is  meant  is  that 
they  should  use  the  highest  degree  of  care  that  is  reasonably  con- 
sistent with  the  practical  conduct  of  the  business,  and  that  is  the 
doctrine  of  the  instructions,  and  it  is  abundantly  sustained  by  the 
authorities.  Indianapolis  &  St.  L.  R'y  Co.  v.  Horst,  93  U.  S.  291; 
Dunn  v.  Grand  Trunk  R.  R.,  58  Me.  187;  Hegeman  v.  Western 
R.  R.,  13  N.  Y.  9;  Kansas  Pacific  R.  R.  v.  Miller,  2  Colo.  442; 
Wood,  R.  R.  1049-1054. 

III.  The  eleventh,  twelfth,  and  fourteenth  instructions  given  by 
the  court  are  as  follows :  — 

"  The  degree  of  care  required  of  defendant  in  the  selection  of  its 
materials,  the  plan  and  construction  of  its  roadway,  track,  bridges, 
and  rolling  stock,  in  the  selection  of  its  employees,  servants,  and 
agents,  and  in  the  inspection  and  repairs  of  its  road,  and  the 
machinery  and  appliances  connected  with  the  operation  of  the  same, 
is  such  as  the  best,  most  carefully,  prudently,  and  skilfully  managed 
railroads  of  the  country  exercise  and  require,  doing  a  like  business, 
and  under  like  circumstances. 

"  The  high  degree  of  care  hereinbefore  referred  to,  and  required  of 
defendant,  embraces  its  roadway,  track,  bridges,  and  rolling  stock, 
and  the  selection  of  its  employees,  servants,  and  agents.  In  supply- 
ing materials  for  and  in  constructing  its  roadway,  track,  bridges,  and 
rolling  stock,  it  was  required  to  exercise  that  high  degree  of  care  to 
see  that  materials  used  were  amply  sufficient,  and  of  such  quality, 
size,  pattern,  as  were  accepted  by  and  in  general  use,  and  found  to 
be  sufficient,  and  approved  by  the  best  and  most  skilfully  managed 


LIABILITY   FOE   INJURIES.  957 

railroads  of  the  country,  doing  a  like  business  with  defendant.  In 
the  selection  of  train-men,  and  in  the  management  of  its  train,  it 
was  bound  to  exercise  that  high  degree  of  care,  and  to  provide  men 
of  sufficient  experience,  skill,  and  prudence  to  run  such  train  safely, 
as  far  as  was  practicable;  and  it  was  bound,  also,  in  like  manner,  to 
see  that,  in  the  actual  management  of  the  train  at  the  time  of  ti 
accident,  the  train-men  exercised  a  like  degree  of  care  and  skill 
in  managing  and  running  the  train  safely  in  all  respects,  so  as  to 
avoid  injury  to  the  passengers.  If  defendant  failed  in  any  of  these 
respects,  and  such  failure  was  the  cause  of  the  injury  complained 
of,  it  was  negligent,  and  is  liable. 

"If  you  find  that  the  rails  which  were  broken  were  made  by  a 
manufacturer  of  good  repute,  were  made  upon  the  approved  method 
of  manufacturing  rails,  were  properly  tested  by  the  proper  known 
and  usually  applied  tests  then  in  practical  use,  and  had  been  on  the 
track  for  several  years,  and  had  successfully  stood  the  strain  of 
numerous  passing  trains  without  in  any  manner  affecting  their 
quality  or  strength,  so  far  as  could  be  seen  by  proper  examination, 
carefully  and  skilfully  made ;  if,  at  the  time  of  the  accident,  they 
were  placed  and  lying  securely  on  sound  ties,  with  good  angle-bars 
or  splices  at  the  ends,  with  sufficient  ballast  under  the  ties,  with  all 
their  connections  and  supports  well  adjusted ;  if  they  had  been  sub- 
jected to  a  daily  inspection  in  the  most  approved  and  customary  way 
of  inspecting  such  appliances  by  the  most  careful  and  best  managed 
railroads  in  the  country,  by  some  servant  of  competent  skill  and 
experience  in  such  matters,  and  said  rails  appeared  then  sound,  and 
all  these  connections  and  supports  sound  and  secure;  then  if  there 
were  no  flaws  or  defects  visible,  or  that  could  have  been  discovered 
by  such  approved  and  customary  inspection,  made  in  the  manner 
hereinbefore  explained,  —  then  the  defendant  was  not  negligent  with 
reference  to  said  rails." 

Some  of  the  members  of  the  court  think  that  the  eleventh  instruc- 
tion is  erroneous,  but  we  unite  in  the  conclusion  that,  if  it  should 
be  conceded  to  be  erroneous,  the  plaintiff  could  not  have  been  preju- 
diced by  it.  The  doctrine  of  the  instruction  is  that  the  degree  of 
care  required  of  defendant  in  the  selection  of  plans  and  materials  for 
its  roadways,  bridges,  and. appliances  was  such  as  was  exercised  by 
the  best  and  most  skilfully  and  carefully  managed  railroads  in  the 
country,  under  like  circumstances.  The  objection  urged  against  it 
is  that  it  treats  the  practices  of  the  class  of  railroads  named,  in  t 
matters  in  question,  as  affording  an  absolute  standard  of  duty  as  to 
those  matters,  thus,  in  effect,  making  the  very  practices  which  are 
called  in  question  the  law  of  the  case.  We  admit  the  force  of  I 
objection.  But  the  twelfth  instruction  was  drawn  with  special  refer- 
ence to  the  facts  of  the  case,  and  in  it  the  jury  were  told,  in  effect, 
that  defendant  was  bound,  not  only  to  select  such  plans  and  material 
for  the  construction  of  its  road  and  appliances  as  were  in  use  by  the 


958  CARRIERS    OF    PASSENGERS. 

best  and  most  skilfully  conducted  roads  of  the  country,  but  that 
such  materials  and  plans  must  have  been  found  sufficient  by  the 
other  roads.  This  is  clearly  right.  When  a  plan  of  construction, 
and  the  materials  made  use  of,  have  been  found  by  actual  experience 
to  be  sufficient  and  safe,  other  roads,  whose  business  is  to  be  carried 
on  under  like  circumstances,  are  warranted  in  adopting  them.  To 
hold  otherwise  would  be  to  hold  that  railroad  companies,  in  the 
construction  and  operation  of  their  roads,  could  not  avail  themselves 
of  the  experience  of  others,  and  that  the  construction  and  operation 
of  every  road  must,  to  a  great  extent,  be  a  matter  of  experiment. 
With  this  rule  distinctly  laid  down  as  applicable  to  the  facts  of 
the  '  case,  we  think  the  jury  could  not  have  been  misled  by  the 
eleventh  instruction,  conceding  that  it  is  erroneous.  This  conces- 
sion, however,  must  be  understood  as  being  made  only  for  the  pur- 
pose of  the  argument,  for  a  majority  of  the  court  are  of  the  opinion 
that  the  instruction  is  not  erroneous.  We  think,  also,  that  the  four- 
teenth instruction  is  correct. 

IV.  In  another  instruction  the  jury  were  told  that  defendant 
"  was  not  required  to  so  construct  its  bridge  that  it  would  resist  an 
unusual  and  extraordinary  shock  of  a  derailed  train,  running  at  reg- 
ular speed,  and  striking  it  with  great  force."  After  the  jury  had 
been  considering  the  case  for  some  time,  they  were  again  brought 
into  court,  and  the  court  gave  them  further  instructions  on  that  sub- 
ject, which  very  materially  modified  the  one  quoted  above.  In  the 
additional  instructions  they  were  told,  in  effect,  that  the  defendant 
was  required  to  take  into  account,  in  constructing  and  maintaining 
its  bridges,  the  fact  that  accidents  might  occur  in  the  operation  of 
its  road,  and  to  construct  its  bridges  with  reference  thereto;  and 
that  it  was  held  to  a  very  high  degree  of  care  in  that  respect.  As 
thus  modified,  the  instruction  quoted  affords  plaintiff  no  just  ground 
of  complaint. 

We  have  found  no  ground  in  the  record  upon  which  we  think  we 
ought  to  disturb  the  judgment,  and  it  will  be 

Affirmed. 


GLEESON   v.   VIRGINIA   MIDLAND  R.    CO. 
140  U.  S.  435.     1891. 

In  error  to  the  Supreme  Court  of  the  District  of  Columbia. 

This  is  an  action  for  damages,  brought  in  the  Supreme  Court  of 
the  District  of  Columbia.  It  appears  from  the  bill  of  exceptions 
that  at  the"  trial  the  evidence  introduced  by  the  plaintiff  tended  to 
show  that  in  January,  1S82,  he  was  a  railway  postal-clerk,  in  the 
service  of  the  United  States  post-office  department;  that  on  Sunday, 


LIABILITY    FOR    INJURIES.  959 

the  loth  of  that  month,  in  the  discharge  of  his  official  duty,  he  was 
making  the  run  from  Washington  to  Danville,  Va.,  in  a  postal  - 
of  the  defendant,  and  over  its  road;  that  in  the  course  of  such  run 
the  train  was   in  part  derailed  by  a  landslide  which  occurred  in  a 
railway  cut,  aud  the  postal-car  in  which  the  plaintiff  was  at  work 
was  thrown  from  the  track  upon  the  tender,  killing  the  engineer  and 
seriously  injuring  the  fireman;  and  that  the   plaintiff,    while   thus 
engaged  in  performing  his  duty,  was  thrown  violently  forward  by 
the  force  of  the  collision,  striking  against  a  stove  and  a  letter-box, 
three  of  his  ribs  being  broken,  and  his  head,  on  the  left  side,  con- 
tused, which  injuries  are  claimed  to  have  permanently  impaired  his 
physical  strength,  weakened  his  mind,  and  led  to  his  dismissal  from 
his  office,  because  of  his  inability  to  discharge  its  duties.     Defence 
was  made  by  the  company  under  these  propositions:  That  the  land- 
slide was  caused  by  a  rain  which  had  fallen  a  few  hours  previous, 
and  therefore  was  the  act  of  God;  that  it  was  a  sudden  slide,  caused 
by  the  vibration  of  the  train  itself,  and  which,  therefore,  the  com- 
pany was  not  chargeable  with,  since  it  had,  two  hours  before,  ascer- 
tained that  the  track  was  clear;  and  that  the  injury  resulted  from 
the  plaintiff's  being  thrown  against  the  postal-car's  letter-box,  for 
which  the  company  was  not  responsible,  since  he  took  the  risk  inci- 
dent to  his  employment.      A.t  the  close  of  the  testimony,  the  court, 
having  given  to  the  jury  certain  instructions  in  accordance  with  the 
requests  of  the  plaintiff,  charged  the  jury,  at  defendant's  request, 
as  follows :  "  (1)     The  burden  of  proof  is  on  the  plaintiff  to  show 
that  the  defendant  was  negligent,  and  that  its  negligence  caused  the 
injury.      (2)     The  jury  are  instructed  that  the  plaintiff,    when  he 
took  the  position  of  a  postal-clerk  on  the  railroad,  assumed  the  risk 
and  hazard  attached  to  the  position,  and  if,  in  the  discharge  of  his 
duties  as  such,  he  was  injured  through  the  devices  in  and  about  the 
car  in  which  he  was  riding,  properly  constructed  for  the  purpose  of 
transporting  the  mails,  the  railroad  is  not  liable  for  such  injury, 
unless  the  same  were  caused  by  the  negligent  conduct  of  the  com- 
pany or  its  employees.     (3)     The  court  instructs  the  jury  that,  while 
a  large  degree  of  caution  is  exacted  generally  from  railway  companies 
in  order  to  avert  accidents,  the  caution  applies  only  to  those  acci- 
dents which  could  be  prevented  or  averted  by  human  care  and  fore- 
sight, and  not  to  accidents  occurring  solely  from  the  act  of  God.     If 
they  believe  that  the  track  and  instruments  of  the  defendant  were  in 
good  order,  its  officers  sufficient  in  number  and  competent,  and  that 
the    accident   did   not  result  from   any   deficiency  in  any  of  these 
requirements,  but  from  a  slide  of  earth  caused  by  recent  rains,  ain't 
that  the  agents  and  servants  of  the  company  had   good  reason  to 
believe  that  there  was  no  such  obstruction  in  its  track,  and  that  they 
could  not,  by  exercise  of  great  care  and  diligence,  have  discovered 
it  in  time  to  avert  the  accident,  then  they  should  find  for  the  defend- 
ant.    (4)     If  the  jury  believe  from  the  evidence  that  the  defendant's 


969  CAREIEES    OF   PASSENGEBS. 

instruments,  human  and  physical,  were  suitable  and  qualified  for 
the  business  in  which  it  was  engaged;  that  the  accident  complained 
of  was  caused  by  the  shaking  down  of  earth  which  had  been  loosened 
by  the  recent  rains,  and  that  the  earth  was  shaken  down  by  the 
passing  of  this  train,  —  then  the  accident  was  not  such  an  act  of 
negligence  for  which  the  defendant  would  be  responsible,  and  the 
jury  should  find  for  the  defendant."  The  counsel  for  the  plaintiff 
objected  to  the  granting  of  the  first  of  these  prayers,  and  asked  the 
court  to  modify  it  by  adding  the  words  "but  that  the  injury  to  the 
plaintiff  upon  the  car  of  the  defendant,  if  the  plaintiff  was  in  the 
exercise  of  ordinary  care,  is  prima  facie  evidence  of  the  company's 
liability."  But  the  court  refused  to  modify  the  said  prayer,  and 
the  plaintiff  duly  and  severally  excepted  to  the  granting  of  each  one 
of  said  prayers  on  behalf  of  the  defendant,  and  to  the  refusal  of  the 
court  to  modify  the  said  first  prayer  as  requested.  The  jury,  so 
instructed,  found  for  the  defendant,  and  judgment  was  rendered 
accordingly.  That  judgment  having  been  affirmed  by  the  court  in 
general  term,  5  Mackey,  356,  this  writ  of  error  was  taken. 

Lamar,  J.  It  will  be  most  convenient  in  the  decision  of  this  case 
to  consider  the  third  instruction  first.  The  objections  made  to  it 
are  three:  (1)  "It  assumes  that  the  accident  was  caused  by  an  act 
of  God,  in  the  sense  in  which  that  term  is  technically  used."  It 
appears  that  the  accident  was  caused  by  a  land-slide,  which  occurred 
in  a  cut  some  15  or  20  feet  deep.  The  defendant  gave  evidence 
tending  to  prove  that  rain  had  fallen  on  the  afternoon  of  Friday  and 
on  the  Saturday  morning  previous;  and  the  claim  is  that  the  slide 
was  produced  by  the  loosening  of  the  earth  by  the  rain.  We  do  not 
think  such  an  ordinary  occurrence  is  embraced  by  the  technical 
phrase  "an  act  of  God."  There  was  no  evidence  that  the  rain  was 
of  extraordinary  character,  or  that  any  extraordinary  results  fol- 
lowed it.  It  was  a  common,  natural  event;  such  as  not  only  might 
have  been  foreseen  as  probable,  but  also  must  have  been  foreknown 
as  certain  to  come.  Against  such  an  event  it  was  the  duty  of  the 
company  to  have  guarded.  Extraordinary  floods,  storms  of  unusual 
violence,  sudden  tempests,  severe  frosts,  great  droughts,  lightnings, 
earthquakes,  sudden  deaths  and  illnesses,  have  been  held  to  be  "acts 
of  God; "  but  we  know  of  no  instance  in  which  a  rain  of  not  unusual 
violence,  and  the  probable  results  thereof  in  softening  the  superficial 
earth,  have  been  so  considered.  In  Dorman  v.  Ames,  12  Minn.  451, 
Gil.  347,  it  was  held  that  a  man  is  negligent  if  he  fail  to  take  pre- 
cautions against  such  rises  of  high  waters  as  are  usual  and  ordinary, 
and  reasonably  to  be  anticipated  at  certain  seasons  of  the  year;  and 
we  think  the  same  principle  applies  to  this  case.  Ewart  v.  Street, 
2  Bailey,  157,  162;  Moffat  v.  Strong,  10  Johns.  11;  Steamboat  Co. 
v.  Tiers,  24  N.  J.  Law,  697;  Railway  Co.  v.  Braid,  1  Moore  P.  C. 
(K  S.)  101.  (2)  The  instruction  does  not  hold  the  defendant 
"responsible  for  the  condition  of  the  sides  of  the  cut  made  by  it  in 


LIABILITY   FOR    INJURIES.  901 

the  construction  of  the  road,  the  giving  way  of  which  caused  thi 
dent."  We  think  this  objection  is  also  well  taken.  The  rail) 
cut  is  as  much  a  part  of  the  railroad  structure  as  is  the  fill.  They 
are  both  necessary,  and  both  are  intended  for  one  result,  which  is 
the  production  of  a  level  track  over  which  the  trains  may  be  pro- 
pelled. The  cut  is  made  by  the  company  no  less  than  the  1111;  and 
the  banks  are  not  the  result  of  natural  causes,  but  of  the  direct  inter- 
vention of  the  company's  work.  If  it  be  the  duty  of  the  company 
(as  it  unquestionably  is)  in  the  erection  of  the  fills  and  the  m 
sary  bridges  to  so  construct  them  that  they  shall  be  reasonably  - 
and  to  maintain  them  in  a  reasonably  safe  condition,  no  reason  can 
be  assigned  why  the  same  duty  should  not  exist  in  regard  to  the 
cuts.  Just  as  surely  as  the  laws  of  gravity  will  cause  a  heavy  train 
to  fall  through  a  defective  or  rotten  bridge  to  the  destruction  of  life, 
just  so  surely  will  those  same  laws  cause  land-slides  and  consequent 
dangerous  obstructions  to  the  track  itself  from  ill-constructed  rail- 
way cuts.  To  all  intents  and  purposes  a  railroad  track  which  runs 
through  a  cut  where  the  banks  are  so  near  and  so  steep  that  the 
usual  laws  of  gravity  will  bring  upon  the  track  the  debris  created  by 
the  common  processes  of  nature  is  overhung  by  those  banks.  Ordi- 
nary skill  would  enable  the  engineers  to  foresee  the  result,  and 
ordinary  prudence  should  lead  the  company  to  guard  against  it.  To 
hold  any  other  view  would  be  to  overbalance  the  priceless  lives  of 
the  travelling  public  by  a  mere  item  of  increased  expense  in  the  con- 
struction of  railroads;  and,  after  all,  an  item,  in  the  great  number 
of  cases,  of  no  great  moment. 

In  a  late  case  in  the  Queen's  Bench  division,  —  Tarry  v.  Ashton, 
1  Q.  B.  Div.  314,  — two  out  of  three  judges  declared  in  substance 
that  a  man  who,  for  his  own  benefit,  suspends  an  object,  or  permits 
it  to  be  suspended,  over  the  highway,  and  puts  the  public  safety  in 
peril  thereby,  is  under  an  absolute  duty  to  keep  it  in  such  a  state 
as  not  to  be  dangerous.  The  facts  of  the  case  were  these:  The 
defendant  became  the  lessee  and  occupier  of  a  house  from  the  front 
of  which  a  heavy  lamp  projected  several  feet  over  the  public  foot- 
pavement.  As  the  plaintiff  was  walking  along  in  November,  the 
lamp  fell  on  her,  and  injured  her.  It  appeared  that  in  the  previous 
August  the  defendant  employed  an  experienced  gas-fitter  to  put  the 
lamp  in  repair.  At  the  time  of  the  accident  a  person  employed  by 
defendant  was  blowing  the  water  out  of  the  gas-pipes  of  the  lamp, 
and  m  doing  this  a  ladder  was  raised  against  the  lamp-iron,  or 
bracket,  from  which  the  lamp  hung;  and  on  the  man  mounting  the 
ladder,  owing  to  the  wind  and  wet,  the  ladder  slipped,  and  he,  to 
save  himself,  clung  to  the  lamp-iron,  and  the  shaking  caused  the 
lamp  to  fall.  On  examination  it  was  discovered  that  the  fastening 
by  which  the  lamp  was  attached  to  the  lamp-iron  was  in  a  decayed 
state.  The  jury  found  that  there  had  been  negligence  on  the  part 
ui  the  defendant  personally:  that  the  lamp  was  out  of  repair  through 


962  CARRIERS    OF    PASSENGERS. 

general  decay,  but  not  to  the  knowledge  of  the  defendant;  that  the 
immediate  cause  of  the  fall  of  the  lamp  was  the  slipping  of  the 
ladder;  but  that,  if  the  lamp  had  been  in  good  repair,  the  slipping 
of  the  ladder  would  not  have  caused  the  fall.  Upon  this  it  was 
held  by  Lush  and  Quain,  JJ.,  that  the  plaintiff  was  entitled  to  a 
verdicb  on  the  ground  that  if  a  person  maintains  a  lamp  projecting 
over  the  highway  for  his  own  purposes,  it  is  his  duty  to  maintain  it 
so  as  not  to  be  dangerous  to  persons  passing  by ;  and  if  it  causes 
injuries,  owing  to  a  want  of  repair,  it  is  no  answer  on  his  part  that 
he  had  employed  a  competent  man  to  repair  it.  1  Thomp.  Neg.  346, 
347.  The  case  of  Kearney  v.  Railroad  Co.,  L.  R.  6  Q.  B.  759,  762, 
(in  the  Exchequer  Chamber),  cited  in  the  brief  of  counsel  for  plain- 
tiff in  error,  is  directly  in  point.  In  that  case  the  plaintiff  had  been 
injured  while  walking  along  a  public  highway,  by  a  brick  which  fell 
from  a  pier  of  the  defendant's  bridge.  A  train  had  just  passed,  and 
the  counsel  for  the  defendant  submitted  that  there  was  no  evidence 
of  negligence.  The  court  (Kelly,  Chief  Baron)  says:  "There  can  be 
no  doubt  that  it  was  the  duty  of  the  defendants,  who  had  built  this 
bridge  over  the  highway,  to  take  such  a  care  that,  where  danger  can 
be  reasonably  avoided,  the  safety  of  the  public  using  the  highway 
should  be  provided  for.  "The  question,  therefore,  is  whether  there 
was  any  evidence  of  negligence  on  the  part  of  the  defendants;  and 
by  that  we  all  understand  such  an  amount  of  evidence  as  to  fairly 
and  reasonably  support  the  finding  of  the  jury.  The  lord  chief  jus- 
tice, in  his  judgment  in  the  court  below,  said  res  ijisa  loquitur,  and 
I  cannot  do  better  than  to  refer  to  that  judgment.  It  appears  with- 
out contradiction  that  a  brick  fell  out  of  a  pier  of  the  bridge  without 
any  assignable  cause  except  the  slight  vibration  caused  by  a  passing 
train.  This,  we  think,  is  not  only  evidence,  but  conclusive  evi- 
dence, that  it  was  loose;  for  otherwise  so  slight  a  vibration  could 
not  have  struck  it  out  of  its  place.  .  .  .  The  bridge  had  been  built 
two  or  three  years,  and  it  was  the  duty  of  the  defendants  from  time 
to  time  to  inspect  the  bridge,  and  ascertain  that  the  brick-work  was 
in  good  order,  and  all  the  bricks  well  secured."  The  principle  of 
these  decisions  seems  to  us  to  be  applicable  to  this  case.  If  such  be 
the  law  as  to  persons  who,  for  their  own  purposes,  cause  projections 
to  overhang  the  highway  not  constructed  by  them,  a  fortiori  must  it 
be  the  law  as  to  those  who,  for  their  own  purposes  of  profit,  under- 
take to  construct  the  highway  itself,  and  to  keep  it  serviceable  and 
safe,  yet  who  allow  it  to  be  practically  overhung,  from  considerations 
of  economy  or  through  negligence.  We  think  the  case  of  Railroad 
Co.  v.  Sanger,  15  Grat.  237,  to  which  we  are  referred  by  counsel 
for  plaintiff  in  error,  is  strongly  illustrative  of  the  principle  in  this 
case,  to  which  it  bears  a  close  resemblance.  Some  rocks  had  been 
piled  up  alongside  of  the  track  for  the  purpose  of  ballast,  and  some 
of  them  got  upon  the  track,  causing  the  injury.  In  rendering  its 
opinion  the  court  says:  "Combining  in   themselves  the  ownership 


LIABILITY    FOE   INJURIES. 

as  well  of  the  road  as  of  the  cars  and  locomotives,  they  are  bourj 

the  most  exact  care  and  diligence,  not  only  in  the  managem 
the  trains  and  cars,  but  also  in  the  structure  and  care  of  the  track, 
and  all  the  subsidiary  arrangements  necessary  to  the  safety  of  tin- 
passengers.  And,  as  accidents  as  frequently  arise  from  obstructions 
on  the  track  as  perhaps  from  any  other  cause  whatever,  it  would 
seem  to  follow,  obviously,  that  there  is  no  one  of  the  duties  of  a 
railroad  company  more  clearly  embraced  within  its  warranty  I 
carry  their  passengers  safely,  as  far  as  human  care  and  foresight 
will  go,  than  the  duty  of  employing  the  utmost  care  and  diligence  in 
guarding  their  road  against  such  obstructions."  See,  also,  McEli 
v.  Railroad  Corp.,  4  Cush.  400;  Hutch.  Carr.  p.  524;  Bennett  v. 
Railroad  Co.,  102  U.  S.  577.  This  view  of  the  obligation  of  the 
company  of  course  makes  it  immaterial  that  the  slide  was  suddenly 
caused  by  the  vibration  of  the  train  itself.  It  is  not  a  question  of 
negligence  in  failing  to  remove  the  obstruction,  but  of  negligence  in 
allowing  it  to  get  there. 

We  are  also  of  the  opinion  that  it  was  error  to  refuse  to  modify 
the  first  instruction  for  the  defendant  as  requested  by  the  plaintiff. 
Since  the  decisions  in  Stokes  v.  Saltonstall,  13  Ret.  181,  and  Kail- 
road  Co.  v.  Pollard,  22  Wall.  341,  it  has  been  settled  law  in  this 
court  that  the  happening  of  an  injurious  accident  is,  in  passenger 
cases,  prima  facie  evidence  of  negligence  on  the  part  of  the  carrier, 
and  that  (the  passenger  being  himself  in  the  exercise  of  due  car.) 
the  burden  then  rests  upon  the  carrier  to  show  that  its  whole  duty 
was  performed,    and  that   the   injury   was   unavoidable    by   human 
foresight.     The  rule  announced  in  those  cases  has  received  general 
acceptance,  and  was  followed  at  the  present  term  in  Coasting  Co.  v. 
Tolson,  139  U.  S.  551.     The  defendant  seeks  to  uphold  the  action 
of  the  court  in  refusing  the  modification  prayed   for,  by  distinguish- 
ing the  case  at  bar.     It  attempts  to  make  two  distinctions  :  (1)  That 
the  operation  of  the  rule  is  confined  to  cases  "where  the  accident 
results  from  any  defective  arrangement,  mismanagement,  or  miscon- 
struction of  things  over  which  the  defendant  has  immediate  control, 
and  for  the  management,   service,   and  construction  of  which  it  is 
responsible,  or  where    the  accident  results   from  any   omission   or 
commission  on  the  part  of  the  railroad  company  with  respect  to  these 
matters  entirely  under  its  control."      (2)  That   the  injury  from  an 
act  of  God  is  established  as  a  fact,  wherefore  the  presumption  of 
negligence  from  the  occurrence  of  the  acid. lent  cannot  arise.     Neither 
of  these  attempted  distinctions  is  sound,  since,  as   has  been  shown, 
the  defect  was  in  the  construction  of  that  over  which  the  defendant 
did  have  control,  and  for  which  it  was  responsible,  and  since  the 
slide  was  not  caused  by  the  act  of  God.  in  any  admissible  sense 
that  phrase.     Moreover,  if  these  distinctions  were  sound,  still,  as  a 
matter  of  correct  practice,  the  modification  should  have  been  made. 
The  law  is  that  the  plaintiff  must  show  negligence  in  the  defendant 


964  CARRIERS    OF   PASSENGERS. 

This  is  done  prima  facie  by  showing,  if  the  plaintiff  be  a  passenger, 
that  the  accident  occurred.  If  that  accident  was  in  fact  the  result 
of  causes  beyond  the  defendant's  responsibility,  or  of  the  act  of 
God,  it  is  still  none  the  less  true  that  the  plaintiff  has  made  out  his 
prima  facie  case.  When  he  proves  the  occurrence  of  the  accident, 
the  defendant  must  answer  that  case  from  all  the  circumstances  of 
exculpation,  whether  disclosed  by  the  one  party  or  the  other.  They 
are  its  matters  of  defence.  And  it  is-  for  the  jury  to  say,  in  the 
light  of  all  the  testimony,  and  under  the  instructions  of  the  court, 
whether  the  relation  of  cause  and  effect  did  exist,  as  claimed  by  the 
defence,  between  the  accident  and  the  alleged  exonerating  circum- 
stances. But  when  the  court  refuses  to  so  frame  the  instructions  as 
to  present  the  rule  in  respect  to  the  prima  facie  case,  and  so  refuses 
on  either  of  the  grounds  by  which  the  refusal  is  sought  to  be  sup- 
ported herein,  it  leaves  the  jury  without  instructions  to  which  they 
are  entitled  to  aid  them  in  determining  what  were  the  facts  and 
causes  of  the  accident,  and  how  far  those  facts  were  or  were  not 
within  the  control  of  the  defendant.  This  is  error.  Judgment 
reversed,  and  cause  remanded,  with  direction  to  order  a  new  trial, 
and  to  take  further  proceedings  not  inconsistent  with  this  opinion. 

Brewer,  J.,  dissented  from  the  opinion  and  judgment  in  this 
case  on  the  ground  that  it  is  in  contravention  of  the  long-established 
rules  as  to  what  may  be  considered  on  an  incomplete  record. 


b.  Negligence  or  wrong  of  servants. 

RAILROAD   CO.    v.    WALRATH. 
38  Ohio,  461.     1882. 

Error  to  the  District  Court  of  Hamilton  County. 

Walrath  brought  suit  in  the  Superior  Court  of  Cincinnati  against 
the  Cleveland,  Columbus,  Cincinnati  &  Indianapolis  Railroad 
Company,  to  recover  damages  for  an  injury  alleged  to  have  been 
sustained  while  he  was  a  passenger  on  the  company's  road.  He  paid 
to  the  company  his  fare  from  Cleveland  to  Cincinnati,  and  also, 
after  the  train  had  started,  paid  for  a  berth  in  a  car  of  the  Woodruff 
Sleeping-Car  Company,  which  car  formed  part  of  the  train.  After 
riding  in  his  proper  seat  in  the  sleeping-car  an  hour  or  more,  the 
upper  berth  came  down,  striking  him,  as  he  alleges,  on  the  head, 
causing  injury  to  the  spinal  cord,  and  ultimately  paralysis.  This, 
he  avers,  was  without  fault  on  his  part,  and  by  reason  of  the  negli- 
gence of  the  railroad  company,  as  well  in  using  defective  appliances 
as  in  the  management  of  the  same.     There  was  evidence  that  the 


LIABILITY   FOE    INJURIES. 

berth  had  never  fallen  before  or  afterward,  and  that,  on  examination 
after  the  accident,  no  defect  could  be  discovered  in  its  construct! 

The  case  was  heard  upon  petition,  answer,  reply,  and  testimoi 
and  a  verdict   for  $6,000  was   found,  upon  which  judgment 
rendered.     The  judgment  was  affirmed  in  the  District  Court.     This 
petition  in  error  was  filed  by  the  railroad  company  to  r 
judgments. 

Refusing  to  charge  in  terms  that  no  presumption  of  o 
arose,  from  the  fact  that  an  accident  occurred  to  Walrath  while 
travelling  as  a  passenger  in  the  sleeping-car,  and  that,  if  thi 
no  defect  in  the  road,  or  the  car,  or  the  mechanism  used,  the  bui 
to  show  negligence  of  the  railroad  company's  employees   was 
him,  the  court  charged  the  jury,   among  other  things,   as  follows: 

"The  burden  of  proof  is  on  the  plaintiff  to  show  that  he  v. 
injured  by  the  defendant's  negligence,  either  in  not  providing 
and  suitable  cars,  or  in  not  properly  inspecting  and  taking  care  of 
said  cars.  A  mere  statement  that  a  person  was  injured  while  riding 
on  a  railway,  without  any  statement  of  the  character,  manner,  or 
circumstances  of  the  injury,  does  not  raise  a  presumption  of  negli- 
gence on  the  part  of  the  railway  company.  But  if  the  character, 
manner,  or  circumstances  of  the  injury  are  also  stated,  such  state- 
ment may  raise,  on  the  one  hand,  a  presumption  of  such  negligence, 
or,  on  the  other,  a  presumption  that  there  was  no  such  negligence. 
If  the  plaintiff  was  in  fact  injured  while  sitting  in  his  proper  p] 
by  the  falling  on  to  his  head  of  the  upper  berth,  while  said  uppex 
berth  ought  to  have  remained  in  place  above,  such  fact  raises  a  pre- 
sumption in  this  case  of  negligence,  for  which  the  defendant  is 
liable.  If  you  find  that  there  was  no  defect  in  the  road,  or  in  the 
car,  or  the  mechanism  used,  yet,  if  upon  the  evidence  in  this  case, 
you  find  it  reasonable  to  presume  that  the  accident  happened  by  rea- 
son of  the  upper  berth  not  having  been  properly  fastened  in  place, 
or  by  reason  of  the  persons  having  charge  of  the  car  having  failed  to 
observe  that  it  had  become  loosened,  if  such  insecure  condition 
would  be  observed  by  proper  diligence,  you  have  a  right  so  to 
presume,  and  you  would  then  find  the  defendant  guilty  of  negli- 
gence. If,  on  the  other  hand,  in  such  case,  you  find  it  equally 
reasonable  to  presume  that  the  fastening  of  the  berth  was  loosened 
by  some  other  person,  not  those  in  the  employment  of  the  defendant. 
and  such  insecure  condition  would  not  be  observed  by  proper  dili- 
gence on  the  part  of  the  persons  having  charge  of  the  car,  you  have 
the  right  so  to  presume,  and  in  that  case  would  find  the  plaintifi 
failed  to  make  out  a  case  of  negligence  against  the  defendant.  .  .  . 
The  plaintiff  is  entitled  to  damages  for  injury  traceable  t<>  the 
defendant's  fault,  but  not  for  injury  caused  by  his  own  act." 

Exception  was  taken  to  specified  portions  of  this  charge 

The  railroad  company  also  insisted  that  it  was  not  liable  for  the 
negligence  of  the  servants  of   the  sleeping-car   company,   hut   the 


966  CARRIERS    OF   PASSENGERS. 

charge  of  the  court  was  adverse  to  the  claim,  and  exception  was 
taken. 

Okey,  C.  J.  Two  questions  are  presented:  first,  as  to  the  liabil- 
ity of  the  railroad  company  for  injury  to  a  passenger  travelling  on 
one  of  its  trains  in  a  coach  of  a  sleeping-car  company;  secondly,  as 
to  the  presumption  arising  from  proof  of  the  injury. 

1.  In  Southern  Express  Co.  v.  Railway  Co.,  10  Fed.  Rep.  210, 
Miller,  J.,  said  that  "the  express  business  is  a  branch  of  the  carry- 
ing trade  that  has,  by  the  necessities  of  commerce  and  the  usages  of 
those  engaged  in  transportation,  become  known  and  recognized;" 
"  that  it  is  the  duty  of  every  railroad  company  to  provide  such  con- 
veyances, by  special  cars  or  otherwise,  attached  to  their  freight  or 
passenger  trains,  as  are  required  for  the  safe  and  proper  transporta- 
tion of  this  express  matter  on  their  roads;"  "that  under  these  cir- 
cumstances there  does  not  exist,  on  the  part  of  the  railroad  company, 
the  right  to  open  and  inspect  all  packages  so  carried;"  and  "that, 
when  matter  is  so  confided  to  the  charge  of  an  agent  or  messenger 
(of  the  express  company),  the  railroad  company  is  no  longer  liable 
to  all  the  obligations  of  a  common  carrier,  but  that  when  loss  or 
injury  occurs,  the  liability  depends  upon  the  exercise  of  due  care, 
skill,  and  diligence  on  the  part  of  the  railroad  company."  And  see 
Penn.  Co.  v.  Woodworth,  26  Ohio  St.  585. 

Counsel  for  plaintiff  in  error  argue  in  this  case  that  sleeping-cars 
have  become  recognized  as  so  far  necessary  to  the  comfort  and  con- 
venience of  passengers  by  railway,  that  railway  companies  may  be 
compelled,  in  like  manner,  to  attach  the  coaches  of  sleeping-car 
companies  to  their  trains,  where  they  have  failed  to  provide  their 
own  cars  for  such  purpose,  in  which  case  there  should  be  a  corre- 
sponding modification  of  the  liability  of  the  railroad  company,  and 
that  whether  the  arrangement  between  the  companies  be  enforced  or 
conventional,  the  railroad  company  should  not  be  liable  for  injury 
to  passengers  resulting  solely  from  negligence  of  the  agents  of  the 
sleeping-car  company. 

In  support  of  this  view,  attention  is  called  to  the  fact  that  in 
Penn.  Co.  v.  Roy,  102  U.  S.  451,  where  the  liability  of  the  railroad 
company  for  an  injury  received  in  a  car  of  the  Pullman  Palace  Car 
Co.  was  asserted,  Harlan,  J.,  lays  stress  on  the  fact  that  the  rail- 
road  company  had  published  and  circulated  cards,  which  were  in 
such  form  as  to  induce  the  belief  that  the  sleeping-car  was  under  the 
management  and  control  of  the  railway  company.  But,  on  examina- 
tion of  the  whole  opinion,  we  find  there  was  no  intention  to  place 
the  liability  on  such  narrow  ground;  and  we  have  no  hesitancy  in 
saying  that,  in  the  absence  of  notice  that  the  company  will  not  be 
liable  for  defective  appliances  in  the  sleeping-car  or  negligence  of 
servants  of  the  sleeping-car  compan}^,  a  passenger  may  well  assume 
that  the  whole  train  is  under  one  general  management.  Thorpe  v. 
Railway  Co.,  76  N.  Y.  402;  Kinsley  v.  Railroad  Co.,   125   Mass. 


LIABILITY   FOR   INJURIES. 

54.      How    far   a  railway    company    may,    by    agreement   with 
sleeping-car  company,  known  to  the  passenger,  rate  itself  foi 

liability  for  such  injuries,  is  a  question  concerning  which  we  ex]  i 
no  opinion. 

2.  As  to  the  presumption  stated  in  the  charge,  counsel  for  plain- 
tiff in  error  say  that  there  was  no  evidence  that  the  injury  resulted 
from  defect  in  the  car  or  any  part  of  it.     Hence,  the  injury  was 
occasioned  by  the  negligence  of  the  porter  in  securing  the  berth  in 
its    place,    or   by  the    interference  of  some  other  person   with  the 
fastenings  of  the  berth.     This  statement  is  probably  correct.     Now, 
in  charging  that  the  burden  was  on  Walrath  to  show  the  injury 
resulted  from  the  negligence  of  the  defendant  below,  and  thai   he 
could  only  recover  for  negligence  traceable  to  the  defendant's  fault, 
the  court  virtually  charged  that  he  was  required  to  show  that  he  was 
without  fault.     This  being  shown,  we  think  the  court  might  then 
well  say,  under  the  circumstances,  that  the  negligence  of  the  defend- 
ant might  be  presumed.     We  are  aware  that  upon  this  subject  the 
authorities  are  in  some  conflict.     Roscoe's  N.  P.  Ev.  (14th  ed.)  695; 
Thompson  on  Car.  Pas.  209;  Schouler  on  Bailments,  642;  2  Wait's 
Act  &  Def.   90;  Pierce   on  Rail.    (ed.   of  1881)   298;    Johnson   v. 
Railroad  Co.,  20  X.  Y.  65;  Readhead  v.  Midland  Pailw.  Co.,  4  L. 
R.  Q.  B.  379;  Hyman  v.  Nyle,  6  Q.   B.  D.  685;  Great  West.  Railw. 
v.  Fawcett,  1  Moore  (P.  C.)  101,  116;  cf.  Czech  v.  General  Si 
Nav.  Co.,  3  L.  R.  C.  P.  14.     But  the  general  question  was  carefully 
considered   in  Railroad  Co.   v.   Mowery,   36  Ohio  St.  418,  and  we 
think   the  principle  of  that  case   sustains  the  court  below  in  the 
charge  given  and  in  refusing  the  charge  requested.     Railroad  Co. 
McMillan,  37  Ohio  St.  554,  was  an  action,  for  killing  a  horse  on  the 
company's  road,  and   has   no   application.     Whether  the    sentence 
next  to  the  last,  in  the  portion  of  the  charge  set  forth  in  the  state- 
ment of  this  case,  was  not  more  favorable  to  the  railroad  company 
than  was  warranted,  we  need  not  determine. 

Judgment  affirmed. 


RAMSDEN   v.  BOSTON,  etc.  R.  CO. 
104  Mass.  117.     1870. 
Tort  for  an  assault  and  battery. 

Trial  in  the  Superior  Court,  before  Reed,  J.,  who  made  the  fol- 
lowing report  to  this  court :  — 


968  CARRIERS    OF   PASSENGERS. 

This  is  an  action  of  tort.  The  pleadings  make  a  part  hereof. 
The  plaintiffs  introduced  evidence  tending  to  show  that  the  female 
plaintiff  got  on  board  the  defendant's  cars  at  Newton  Corner,  for 
the  purpose  of  going  to  West  Newton  in  an  evening  train;  that  she 
paid  the  fare  to  the  conductor;  that  afterwards  the  conductor  de- 
manded the  fare  again;  that  she  said  she  had  before  paid  it;  that 
the  conductor  told  her  she  lied;  that  the  conversation  between  them 
was  in  a  loud  tone;  that  the  attention  of  people  in  the  cars  was 
attracted  by  it;  that  she  was  confused  and  shamed  and  excited  by 
it;  that  the  conductor  demanded  of  her  that  she  should  give  him 
her  parasol  to  keep  as  security,  or  as  payment  for  the  fare;  that 
she  refused;  that  he  took  hold  of  it,  and  after  somewhat  of  a 
struggle,  took  it  away  from  her;  and  that,  by  reason  of  this,  the 
said  plaintiff,  a  few  days  afterwards,  was  prematurely  delivered  of 
a  child,  and  had  suffered  much  in  health. 

"  After  the  testimony  for  the  plaintiffs  was  concluded,  the  judge 
announced  to  the  counsel  that  at  the  conclusion  of  the  case,  when- 
ever that  should  be,  the  rulings  would  be  as  follows;  and  that, 
after  hearing  them,  the  counsel  upon  the  one  side  or  the  other  might 
proceed  or  not  with  the  case  to  the  jury,  as  they  might  elect.  These 
■are  the  rulings:  'Upon  the  pleadings,  the  action  is  tort  in  the  nature 
of  trespass  for  an  assault.  In  order  to  maintain  the  action,  the 
plaintiffs  must  show  that  an  assault  was  committed  upon  the  female 
plaintiff.  A  conductor,  by  virtue  of  his  implied  authority  as  such, 
that  being  the  only  authority  shown  in  this  case,  has  no  right  to 
seize  articles  of  property  belonging  to  a  passenger  for  the  purpose  of 
thus  enforcing  the  payment  of  fare.  And  if  a  conductor  does  this, 
or  attempts  to  do  this,  and,  in  so  doing,  and  for  the  sole  purpose  of 
seizing  such  property,  commits  an.  assault  on  a  passenger,  the  cor- 
poration is  not  responsible  in  trespass  for  such  acts.'  Upon  the 
announcement  of  these  rulings,  with  the  foregoing  statement  made 
by  the  judge  to  the  counsel,  the  plaintiff's  counsel  consented  to  a 
verdict  for  the  defendants." 

Gray,  J.  A  railroad  corporation  is  liable,  to  the  same  extent  as 
an  individual  would  be,  for  an  injury  done  by  its  servant  in  the 
course  of  his  employment.  Moore  v.  Fitchburg  Railroad  Co.,  4  Gray, 
465.  Hewitt  v.  Swift,  3  Allen,  420.  Holmes  v.  Wakefield,  12 
Allen,  580.  If  the  act  of  the  servant  is  within  the  general  scope  of 
his  employment,  the  master  is  equally  liable,  whether  the  act  is 
wilful  or  merely  negligent;  Howe  v.  Newmarch,  12  Allen,  49;  or 
even  if  it  is  contrary  to  an  express  order  of  the  master.  Philadel- 
phia &  Reading  Railroad  Co.  v.  Derby,  14  How.  468. 

The  conductor  of  a  railroad  train,  from  the  necessity  of  the  case, 
represents  the  corporation  in  the  control  of  the  engine  and  cars,  the 
regulation  of  the  conduct  of  the  passengers  as  well  as  of  the  sub- 
ordinate servants  of  the  corporation,  and  the  collection  of  fares. 
He  may  even  eject  a  passenger  for  not  paying  fare.     O'Brien  v. 


LIABILITY    FOR   INJURIES.  969 

Boston  &  Worcester  Railroad  Co.,  15  Gray,  20.  It  has  been  ad- 
judged by  this  court  that  if,  in  the  exercise  of  his  general 
tionary  authority,  he  wrongfully  ejects  a  passenger  who  has  in  fact 
paid  his  fare;  or  uses  excessive  and  unjustifiable  force  in  ejecting 
a  passenger  who  has  not  paid  his  fare,  and  injures  him  by  a  blow  or 
kick,  or  by  compelling  him  to  jump  off  while  the  train  is  in  motion, — 
in  either  case,  the  corporation  is  liable.  Moore  v.  Fitchburg  Hail- 
road  Co.,  Hewitt  v.  Swift,  and  Holmes  v.  Wakefield  above  cited. 

We  are  all  of  opinion  that  this  case  cannot  be  distinguished  in 
principle  from  those  just  mentioned.     The  use  of  unwarrantable 
violence  in  attempting  to  collect  fare  of  the  plaintiff  was  as  much 
within  the  scope  of  the  conductor's  employment  as  the  exercis' 
threat  of  unjustifiable  force  in  ejecting  a  passenger  from  the  cars. 
Neither   the  corporation   nor  the  conductor   has  any   more   lawful 
authority  to  needlessly  kick  a  passenger  or  make  him  jump  from  the 
cars  when  in  motion,  than  to  wrest  from  the  hands  of  a  passen-.  r 
an  article  of  apparel  or  personal  use,  for  the  purpose  of  compelling 
the  payment  of  fare.     Either  is  an  unlawful  assault;  but  if  com- 
mitted in  the  exercise  of  the  general  power  vested  by  the  corpora- 
tion in  the  conductor,  the  corporation  as  well  as  the  conductor  is 
liable  to  the  party  injured.     In  Monument  National  Bank  v.  Globe 
Works,  101  Mass.  59,  Mr.  Justice  Hoar  said,   "No  corporation  is 
empowered  by  its  charter  to  commit  an  assault  and  battery;  yet  it 
has  frequently  been  held  accountable  in  this  Commonwealth  for  one 
committed  by  its  servants." 

The  ruling  of  the  learned  judge  who  presided  at  the  trial,  that  if 
the  conductor,  in  seizing,  or  attempting  to  seize,  articles  of  property 
belonging  to  a  passenger,  for  the  purpose  of  thus  enforcing  the  pay- 
ment of  fare,  committed  an  assault  upon  the  passenger,  the  corpo- 
ration was  not  responsible  for  such  acts,  was  therefore  erroneous. 

Verdict  set  asi</>\ 


CHICAGO, ,  etc.    R.    CO.   v.    FLEXMAN. 
103  111.  546.     1S82. 

Mr.  Chief  Justice  Craig.  This  was  an  action  brought  by 
James  Flexman,  against  appellant,  to  recover  damages  for  personal 
injuries  inflicted  upon  him  while  a  passenger  in  appellant's  cars,  by 
a  brakeman  in  the  employ  of  the  company. 

The  plaintiff,  as  appears  from  the  evidence,  procured  a  ticket 
from  Hoopeston  to  Milford,  and  took  passage  on  a  freight  train 
which  carried  passengers.  Soon  after  plaintiff  entered  the  car  he 
laid  down  in  a  seat  and  went  to  sleep.  When  the  train  arrived  at 
Milford  he  was  notified  by  the  conductor.     As  plaintiff  was  about 


970  CARRIERS    OF   PASSENGERS. 

to  leave  the  car  he  missed  his  watch,  and  supposed  it  had  been 
stolen.  He  then  refused  to  leave  the  train  until  he  recovered  the 
Avatch,  and  the  conductor  consented  that  he  might  remain  on  the 
train  until  they  should  reach  Watseka.  After  the  train  had  started, 
a  passenger  assisted  plaintiff  in  making  a  partial  search  for  the 
watch,  but  it  was  not  then  found.  The  passenger  then  inquired  of 
plaintiff  who  he  thought  had  his  watch,  to  which  he  replied,  "  That 
fellow,"  pointing  at  the  brakeman.  Immediately  after  the  remark 
was  made  the  brakeman  struck  plaintiff  in  the  face  with  a  railroad 
lantern,  inflicting  the  injuries  complained  of.  These  are  substan- 
tially the  facts,  over  which  there  is  no  controversy  by  the  parties. 

Aftei  the  plaintiff  had  introduced  all  his  testimony,  the  defendant 
entered  a  motion  to  exclude  the  evidence  from  the  jury,  and  asked 
for  an  order  directing  the  jury  to  find  a  verdict  for  defendant.  The 
court  denied  the  motion,  and  the  defendant  excepted.  This  de- 
cision of  the  court  presents  the  question  whether  the  facts  proven, 
conceding  them  to  be  true,  constitute  a  cause  of  action  against  the 
defendant. 

The  point  is  made  that  as  plaintiff  only  paid  fare  to  Milford  he 
ought  not  to  be  regarded  as  a  passenger  on  the  train  after  he  left 
that  place.  We  do  not  regard  this  position  well  taken.  The  con- 
ductor did  not  demand  or  require  fare  from  the  plaintiff;  had  he 
done  so,  no  doubt  the  required  amount  would  have  been  paid.  As 
the  conductor  failed  to  call  for  fare,  it  must  be  regarded  as  waived. 
At  all  events,  we  have  no  hesitation  in  holding  that  the  railroad 
company  occupied  the  same  position  towards  plaintiff  that  it  would 
have  occupied  had  he  paid  his  fare. 

But  it  is  said,  "that  if  the  plaintiff  was  injured  by  a  servant  of 
appellant,  it  was  an  act  outside  of  the  employment  of  the  servant 
who  committed  the  act,  and  not  in  furtherance  of  his  employment 
by  the  master."  This  position  is  predicated  upon  McManus  v. 
Cricket,  1  East,  106,  and  like  cases  which  have  followed  it.  In  the 
case  cited  Jjord  Kenyon  said:  "It  is  laid  down  by  Holt,  Ch.  J.,  as 
a  general  position,  '  that  no  master  is  chargeable  with  the  acts  of  his 
servant  but  when  he  acts  in  the  execution  of  the  authority  given 
him.'  Now,  when  a  servant  quits  sight  of  the  object  for  which  he 
is  employed,  and  without  having  in  view  his  master's  orders  pursues 
that  which  his  own  malice  suggests,  he  no  longer  acts  in  pursuance 
of  the  authority  given  him,  and,  according  to  the  doctrine  of  Lord 
Holt,  his  master  will  not  be  answerable  for  such  act."  The  doc- 
trine announced  is  no  doubt  correct  when  applied  to  a  proper  case. 
If,  for  example,  a  conductor  or  brakeman  in  the  employ  of  a  rail- 
road company  should  wilfully  or  maliciously  assault  a  stranger,  — 
a  person  to  whom  the  railroad  company  owed  no  obligation  what- 
ever, —  the  master  in  such  a  case  would  not  be  liable  for  the  act  of 
the  servant;  but  when  the  same  doctrine  is  invoked  to  control  a 
case  where  an  assault  has  been  made  by  the  servant  of  the  company 


LIABILITY    FOR    INJURIES.  Q^l 

upon  a  passenger  on  one  of  its  trains,  a  different  question  is  pre- 
sented, —  one  which  rests  entirely  upon  a  different  principle. 

What  are  the  obligations  and  duties  of  a  common  carrier  toward 
its  passengers?     In  Keokuk  Northern  Line   t*ackel   I  o.    <■.   Tin. 
111.  608,  it  was  held  that  a  steamboat  company,  as  a  carrier  of  pas- 
sengers for  hire,  is,  through  its  officers  and  servants,  bound  to  the 
utmost  practicable  care  and  diligence  to  carry  its  pas  ifely 

to  their  place  of  destination,  and  to  use  all  reasonably  practicable 
care  and  diligence  to  maintain  among  the  crew  of  the  boat,  includ- 
ing deck  hands  and  roustabouts,  such  a  degree  of  order  and  disci- 
pline as  may  be  requisite  for  the  safety  of  its  passen  The 
same  rule  that  governs  a  steamboat  company  must  <*lso  be  applied 
to  a  railroad  company,  as  the  duties  and  obligations  resting  upon 
the  two  are  the  same,  or  any  other  company,  which  carries  passen- 
gers for  hire.  In  Goddard  v.  Grand  Trunk  Ry.  Co.,  57  Me.  202,  in 
discussing  this  question,  the  court  says:  "The  carrier's  obligation 
is  to  carry  his  passenger  safely  and  properly,  and  to  treat  him  re- 
spectfully; and  if  he  intrust  the  performance  of  this  duty  to  his 
servants,  the  law  holds  him  responsible  for  the  manuer  in  which 
they  execute  the  trust.  .  .  .  He  must  not  only  protect  his  pas 
gers  against  the  violence  and  insults  of  strangers  and  co-passengers, 
but,  a  fortiori,  against  the  violence  and  insults  of  his  own  servants. 
If  this  duty  to  the  passenger  is  not  performed,  —  if  this  protection  is 
not  furnished,  — but,  on  the  contrary,  the  passenger  is  assaulted  and 
insulted  through  the  negligence  of  the  carrier's  servant,  the  carrier 
is  necessarily  responsible."  In  Bryant  v.  Rich,  106  Mass.  180, 
where  the  plaintiff,  a  passenger  on  a  steamboat,  was  assaulted  and 
injured  by  the  steward  and  some  of  the  table  waiters,  the  defend- 
ant, as  a  common  carrier,  was  held  liable  for  the  injury.  In 
Craker  v.  Chicago  and  Northwestern  Ry.  Co.,  36  Wis.  657,  where 
the  conductor  of  a  railroad  train  kissed  a  female  passenger  against 
her  will,  the  court,  in  an  elaborate  opinion,  held  the  railroad  com- 
pany liable  for  compensatory  damages.  It  is  there  said:  "We  can- 
not think  there  is  a  question  of  the  respondent's  right  to  recover 
against  the  appellant  for  a  tort  which  was  a  breach  of  the  contract 
of  carriage."  In  Shirley  v.  Billings,  8  Bush,  147,  where  a  passenger 
on  defendant's  boat  was  assaulted  and  injured  by  an  officer  on  the 
boat,  the  defendant  was  held  liable.  See,  also,  McKinley  v.  Chicago 
aud  Northwestern  R.  R.  Co.,  44  Iowa,  314,  and  N.  0.,  St.  L.  and  C. 
R.  R.  Co.  v.  Burke,  53  Miss.  200.  Many  other  authorities  holding 
the  same  doctrine  might  be  cited,  but  we  do  not  regard  it  necessary. 
It  is  true  there  are  authorities  holding  the  opposite,  view,  but  we  do 
not  think  they  declare  the  reason  or  logic  of  the  law,  and  we  arc  not 
prepared  to  follow  them. 

The  appellant  was  a  common  carrier  of  passengers.  As  such  it 
was  not  an  insurer  against  any  possible  injury  that  a  passenger 
might  receive  while  on  the  train,  but  the  company  was  bound  to 


972  CARRIERS    OF   PASSENGERS. 

furnish  a  safe  track,  cars,  and  machinery  of  the  most  approved 
quality,  and  place  the  trains  in  the  hands  of  skilful  engineers  and 
competent  managers, — the  agents  and  servants  were  bound  to  be 
qualified  and  competent  for  their  several  employments.  Again, 
the  law  required  appellant,  as  a  common  carrier,  to  use  all  reason- 
able exertion  to  protect  its  passengers  from  insult  or  injury  from 
fellow-passengers  who  might  be  on  the  train,  and  if  the  agents  of 
appellant  in  charge  of  the  train  should  fail  to  use  reasonable  dili- 
gence to  protect  its  passengers  from  injuries  from  strangers  while 
on  board  the  train,  the  company  would  be  liable.  So,  too,  the  con- 
tract which  existed  between  appellant  as  a  common  carrier  and 
appellee  as  a  passenger  was  a  guaranty  on  behalf  of  the  carrier  that 
appellee  should  be  protected  against  personal  injury  from  the  agents 
or  servants  of  appellant  in  charge  of  the  train.  The  company  placed 
these  men  in  charge  of  the  train.  It  alone  had  the  power  of  re- 
moval, and  justice  demands  that  it  should  be  held  responsible  for 
their  wrongful  acts  towards  passengers  while  in  charge  of  the  train. 
Any  other  rule  might  place  the  travelling  public  at  the  mercy  of 
any  reckless  employee  a  railroad  company  might  see  fit  to  employ, 
and  we  are  not  inclined  to  establish  a  precedent  which  will  impair 
the  personal  security  of  a  passenger. 

We  are  of  opinion  that  the  evidence  showed  a  legal  cause  of  action 
in  plaintiff,  and  the  court  did  not  err  in  overruling  the  motion  to 
exclude  the  evidence  from  the  jury.  Two  instructions  given  for  the 
plaintiff  have  been  somewhat  criticised,  but  we  think  they  were  in 
the  main  correct. 

The  judgment  will  be  affirmed. 


FICK  v.   CHICAGO,    etc.  K.    CO. 

68  Wis.  469.     1887. 

Action  to  recover  damages  for  injuries  occasioned  by  an  assault 
upon  the  plaintiff  by  one  of  the  defendant's  employees.  The  com- 
plaint alleges  that  the  plaintiff  applied  at  the  station  at  Wilton  for 
a  ticket  to  Norwalk,  and  handed  to  the  person  in  the  ticket  office 
fifty  cents  to  take  therefrom  the  price  of  the  ticket,  which  was 
twenty  cents;  that  such  person  handed  to  him  the  proper  ticket, 
but  only  returned  ten  cents  in  change;  that  the  plaintiff  having 
called  attention  to  the  mistake,  the  said  agent  or  employee  refused 
to  return  the  balance,  came  out  of  the  ticket  office  in  an  angry  man- 
ner, and  passed  to  the  platform ;  that  the  plaintiff  again  requested 
such  agent  to  return  the  change,  and  that  thereupon  the  agent 
assaulted  and  struck  him. 


LIABILITY   FOR   INJURIES. 

The  answer  alleged  that  the  plaintiff  with  two  or  three  comp 
ions,  all  grossly  drunk,  entered  the  station  at  Wilton  and  eominen 
an  assault  upon  one  E.  W.  Davis,  who  was  then  and  there  ene 
in  the  business  of  mail  carrier  from  the  post-office  at  Wilton  t. 
trains  of  the  defendant,  and  that  the  said  Davis  resisted  as  he  law- 
fully might.     Otherwise  the  answer  denies  the  allegations  of  tl 
complaint. 

The  jury  returned  a  special  verdict.     The  facts  found    then 
will  sufficiently  appear  from  the  opinion.     The  jury  also  assessed 
the  plaintiff's  damages  at  $200.     Both  parties  moved  for  judgment 
on  the  special  verdict.     The  motion  of  the  plaintiff  was  granted, 
and  from  the  judgment  entered  accordingly,  the  defendant  appealed. 

Cole,  C.  J.  The  plaintiff  had  purchased  a  ticket  at  the  ticket 
office  at  Wilton,  for  his  transportation  to  Norwalk,  so  the  relation 
of  carrier  and  passenger  existed  at  the  time  of  the  assault.  It  is 
needless  to  say  that  the  company  and  its  agents  owed  him  fair  and 
proper  treatment  while  this  relation  existed.  The  jury  found  that 
one  Fred  E.  Davis  was  the  station  agent  at  Wilton  when  the  ticket 
was  purchased;  that  Edward  W.  Davis  was  employed  at  Wilton  to 
carry  the  mail  from  the  trains  to  the  post-office,  and  was  employed 
in  no  other  capacity;  that  at  the  time  in  question  the  plaintiff  pur- 
chased of  Edward  W.  Davis,  temporarily  in  the  ticket  office  at 
Wilton,  by  permission  of  Fred  E.  Davis,  a  ticket  to  Norwalk.  tie- 
price  of  which  was  twenty  cents,  and  tendered  him  fifty  cents  in 
payment  thereof;  that  Edward  W.  Davis  returned  to  the  plaintiff 
too  small  an  amount  of  change,  and  informed  him  that  they  had  no 
change  and  would  either  send  it  to  him  or  hand  it  to  him  when  he 
came  again;  that  Edward  W.  Davis  committed  the  first  assault 
upon  the  plaintiff  at  this  time;  and  that  the  plaintiff  was  intoxicated. 

Upon  these  simple  facts  the  conduct  of  the  employee,  Edward  W. 
Davis,  in  assaulting  the  plaintiff,  would  appear  to  be  wholly  inde- 
fensible and  without  any  legal  excuse.  The  plaintiff  had  given  him 
money  to  pay  for  his  ticket,  and  he  was  entitled  to  have  his  correct 
change  returned.  It  was  natural  that  he  should  ask  for  it  and  per- 
sist in  demanding  it.  The  agent  had  no  possible  right  or  justifi- 
cation for  assaulting  him  because  he  did  insist  upon  the  correct 
amount  of  change  being  returned.  Of  course,  the  defendant  owed 
the  plaintiff  the  duty  of  treating  him  respectfully  and  properly. 
Certainly  it  was  bound  to  protect  him  against  the  violent  acts  or 
misconduct  of  its  agents.  There  would  probably  he  no  contn 
as  to  the  correctness  of  this  view  of  the  law.  or  as  to  the  liability  of 
the  defendant  for  the  wilful  act  of  a  servant  while  acting  in  I 
course  of  his  employment. 

It  is  said  that  Edward  W.  Davis  was  not  the  station  agent  at 
Wilton,  but  was  merely  employed  to  carry  the  mails  from  the  trains 
to  the  post-office,  and  was  employed  in  no  other  capacity.  But  he 
was  in  the  ticket  office,  sold  the  plaintiff  a  ticket,  and  received  | 


974  CARRIERS    OF   PASSENGERS. 

therefor.  It  is  alleged  in  the  complaint  that  the  plaintiff  went  to 
the  station  for  the  purpose  of  taking  passage  on  the  train  due  in  a 
few  minutes,  and  purchased  a  ticket  of  an  employee  in  charge  of 
the  office.  Now,  while  it  may  be  true  that  Edward  W.  Davis  was 
not  the  regular  ticket  agent,  yet  under  the  circumstances  he  must 
be  regarded  as  authorized  to  issue  the  ticket.  The  special  verdict 
finds  that  at  this  time  the  "  fracas  "  occurred,  or  the  unlawful  assault 
was  committed.  Now,  to  say  that  Edward  W.  Davis  was  a  servant 
of  the  defendant  in  selling  the  ticket  and  receiving  pay  for  it,  but 
while  in  the  act  of  refusing  to  return  the  proper  change  and  in 
making  the  assault,  was  acting  outside  the  course  of  his  employ- 
ment, is  refining  too  much  upon  the  transaction.  It  is  not  as  though 
the  fracas  had  occurred  at  a  subsequent  time  and  place  disconnected 
with  the  act  of  selling  the  ticket  and  making  change.  Of  course, 
the  rule  is  familiar  that  the  master  is  liable  for  the  torts  of  his  ser- 
vant only  when  they  are  committed  in  the  course  of  his  employ- 
ment, and  we  do  not  intend  to  disregard  that  rule  here.  It  is  often 
difficult  to  determine  what  acts  should  be  deemed  within  the  course 
of  the  employment;  but  it  seems  to  us,  upon  the  facts,  that  the 
assault  made  upon  the  plaintiff  is  one  for  which  the  defendant  is 
liable.  It  would  be  unjust  to  hold  that  the  defendant,  which  was 
bound  to  use  all  due  diligence  to  carry  the  plaintiff  safely  to  his 
destination,  was  not  bound  to  protect  him  against  the  violent  act  of 
its  servant  under  the  circumstances  of  the  case.  True,  the  jury,  in 
answer  to  the  fourteenth  question,  find  that  the  striking  of  the 
plaintiff  by  Edward  W.  Davis  was  not  done  by  him  in  the  course 
of  his  employment.  But  this,  in  view  of  the  other  findings,  amounts 
only  to  a  conclusion  of  law,  and  is  not  controlling  as  to  the  fact.  It 
is  like  the  question  presented  in  Hogan  v.  C,  M.  &  St.  P.  R.  Co., 
59  Wis.  139,  where  it  was  held  that,  if  the  special  findings  by  the 
jury  and  the  averments  of  the  complaint  conclusively  show  that  the 
defendant  was  free  from  any  negligence  causing  the  injury  com- 
plained of,  a  finding  in  the  verdict  that  the  defendant  was  guilty  of 
such  negligence  will  be  treated  merely  as  an  erroneous  conclusion 
of  law,  and  will  have  no  weight  in  determining  what  judgment 
should  be  entered.  So  here,  where  the  other  findings  show  that 
Edward  W.  Davis  was  acting  in  the  course  of  his  employment  when 
he  committed  the  unlawful  act  complained  of,  the  fourteenth  finding 
must  be  treated  as  an  erroneous  conclusion  of  law,  which  can  have 
no  weight  in  determining  what  judgment  shall  be  entered.1 

1  That  the  carrier  is  not  liable  for  assault  on  a  passenger  by  an  employee  while 
riding  on  the  train  not  in  the  prosecution  of  his  employment,  see  Penny  v.  At- 
lantic Coast  Line  R.  Co.,  153  N.  C.  296,  69  S.  E.  R.  238,  32  L.^R.  A.  N.  S.  1209. 


LIABILITY    FOK    INJURIES.  975 


c.    Acts  of  fellow-passengers  or  otli- 

PUTNAM   v.    BROADWAY,    etc.    R.    CO. 
55  N.  Y.  108.     1873. 

Action  by  Ellen  S.  Putnam,  as  administratrix,  against  the  Broad* 
way  and  Seventh  Avenue  Railroad  Company  to  recover  for  the 
death  of  Avery  D.  Putnam,  plaintiff's  intestate,  who  was  killed  by 
William  Foster,  the  deceased  and  Foster  being  at  the  time  fellow- 
passengers  on  defendant's  street  car. 

It  appeared  that  Putnam,  in  company  with  two  ladies,  was  riding 
in  the  car,  when  Foster,  who  was  intoxicated,  got  on  the  ear  and 
rode  quietly  on  the  front  platform.  He  afterward  went  inside  and 
made  insulting  remarks  and  signs  to  the  ladies.  Putnam  called  the 
conductor  to  keep  "this  man  quiet."  The  conductor  told  Foster  to 
"sit  down  and  be  quiet,"  and  went  back  to  the  rear  platform. 
Foster"  then  threatened  Putnam  with  violence,  in  a  tone  of  voice  so 
low  that  the  conductor  did  not  hear.  Foster  went  again  upon  the 
front  platform  and  remained  quiet.  When  the  car  stopped  to  allow 
Putnam  and  the  ladies  to  leave,  Foster  seized  the  car  hook,  and 
running  to  the  back  platform,  assaulted  Putnam  as  he  was  assisting 
his  companions  to  alight,  and  struck  him  two  blows,  from  the  effects 
of  which  Putnam  subsequently  died.  Plaintiff  obtained  judgment. 
which  was  affirmed  at  general  term.  The  defendant  appealed  to 
this  court. 

Allen,  J.  The  questions  presented  upon  this  appeal  are  founded 
upon  exceptions  to  the  refusal  to  nonsuit  the  plaintiff  at  the  cl< 
of  the  trial.  If  the  evidence,  upon  any  view  that  can  be  taken 
it,  entitled  the  plaintiff  to  a  verdict,  the  judgment  must  be  affirmed. 
The  case  was  submitted  to  the  jury  with  great  fairness,  and  with 
accurate  instructions  as  to  the  law,  if  there  was  in  truth  any  evi- 
dence of  neglect  of  duty,  or  want  of  care  on  the  part  of  the  servants 
and  agents  of  the  defendant  to  which  the  injury  to  and  death  of  the 
plaintiff's  intestate  could  legally  be  attributed. 

The  cases  bearing  upon  the  liability  of  railway  companies,  and 
other  carriers  of  human  beings  as  passengers  for  hire,  for  any 
feet  in  their  roadways,  carriages,  and  other  vehicles  of  transporta- 
tion, any  neglect  or  want  of  care  by  themselves,  their  agents  or 
servants  in  the  performance  of  the  service  undertaken,  and  for 
injuries  caused  by  or  resulting  directly  from  the  acts  of  the  carrier 
or  his  servants,  either  to  the  passenger  or  third  persons,  may  be  laid 
out  of  view,  except  as  they  serve  to  indicate  the  stringency  and 
extent  of  the  liability  imposed  by  law  upon  carriers,  and  the  extreme 


976  CARRIERS    OF   PASSENGERS. 

care  and  diligence  required  of  them,  in  all  that  concerns  their  own 
acts  and  the  agencies  and  means  employed  by  them.  The  acts, 
neglects,  and  omissions  complained  of  here,  upon  which  the  action  is 
based,  do  not  come  within  either  class  of  cases  referred  to.  The 
passenger  was  carried  in  a  safe  and  proper  manner,  and  there  is  no 
complaint  of  injury  from  any  defect  in  the  means  of  conveyance,  or 
any  act  or  omission  of  duty  on  the  part  of  the  servants  of  the  com- 
pany in  respect  to  the  plaintiff's  intestate  personally.  The  wrong 
and  injury  complained  of  is  the  wanton  and  unprovoked  as  well  as 
unlooked-for  attack  of  a  fellow-passenger,  resulting  in  the  death  of 
the  individual  assailed,  and  the  defendant  is  sought  to  be  charged 
for  the  resulting  damages  on  the  ground  that  the  servants  and  agents 
of  the  company,  in  charge  of  the  car,  negligently  and  improperly 
omitted  to  exercise  police  powers  with  which  they  are  invested  for 
the  protection  of  well-disposed  and  peaceable  passengers. 

There  is  no  such  privity  between  a  railway  company  and  a  pas- 
senger as  to  make  it  liable  for  the  wrongful  acts  of  the  passenger 
upon  any  principle.  Pittsburgh,  F.  W.  &  C.  R.  Co.  v.  Hinds,  53 
Penn.  St.  512  [981].  But  a  railroad  company  has  the  power  of 
refusing  to  receive  as  a  passenger,  or  to  expel  any  one  who  is  drunk, 
disorderly,  or  riotous,  or  who  so  demeans  himself  as  to  endanger  the 
safety  or  interfere  with  the  reasonable  comfort  and  convenience  of 
the  other  passengers,  and  may  exert  all  necessary  power  and  means 
to  eject  from  the  cars  any  one  so  imperilling  the  safety,  or  annoying 
others;  and  this  police  power  the  conductor,  or  other  servant  of  the 
company  in  charge  of  the  car  or  train,  is  bound  to  exercise  with  all 
the  means  he  can  command,  whenever  occasion  requires.  If  this 
duty  is  neglected  without  good  cause,  and  a  passenger  receives 
injury,  which  might  have  been  reasonably  anticipated  or  naturally 
expected,  from  one  who  is  improperly  received,  or  permitted  to  con- 
tinue as  a  passenger,  the  carrier  is  responsible.  Pittsburgh,  P.  W. 
&  C.  R.  Co.  v.  Hinds,  supra ;  Flint  v.  Norwich  and  N.  Y.  Trans- 
portation Co.,  34  Conn.  554;  6  Blatch.  C.  C.  158.  In  the  case  first 
cited,  a  passenger  was  seriously  injured  by  a  large  body  of  drunken 
and  riotous  persons,  who  came  upon  the  train  in  defiance  of  the 
conductor  in  charge;  and  the  court  in  banc  held  that,  upon  the 
evidence  in  that  case,  the  only  question  which  should  have  been 
submitted  to  the  jury  was  whether  the  conductor  did  all  he  could  to 
quell  the  riot  and  eject  the  rioters,  and  that  if  he  did  not  the  com- 
pany was  liable.  The  judge  at  nisi  prius  having  submitted  other 
questions,  to  wit,  whether  the  conductor  allowed  improper  persons 
on  the  train,  and  whether  he  allowed  more  persons  on  the  train  than 
was  proper,  a  verdict  for  the  plaintiff  was  set  aside,  and  a  venire  de 
novo  ordered.  In  the  other  case,  the  action  was  for  an  injury  re- 
ceived by  the  plnintiff,  a  passenger  on  the  defendant's  steamboat, 
from  the  falling  and  consequent  discharge  of  a  loaded  musket,  by 
one  of  a  great  number  of  riotous  and  drunken  soldiers  engaged  in 


LIABILITY   FOR  INJURIES.  <)77 

an  affray,  and  occupying  a  part  of  the  boat  assigned  to  passengers, 
the  plaintiff  being  suffered  to  enter  the  boat  and  pass  to  this  part  of 
it  without  any  warning  from  the  officers  of  the  boat,  or  othi 
the  presence  of  these  soldiers,  and  the  defendants  making  no  effort 
to  preserve  the  peace  or  remove  the  offenders.  Upon  conflicting 
evidence  the  jury  found  for  the  plaintiff.  Judge  Shipman,  in  his 
charge  to  the  jury,  instructed  them  that  "the  defendants 
bound  to  exercise  the  utmost  vigilance  in  maintaining  order,  and 
guarding  the  passengers  against  violence,  from  whatever  Bource 
arising,  which  might  reasonably  be  anticipated,  or  naturally  be 
expected  to  occur  in  view  of  all  the  circumstances,  and  of  the  num- 
ber and  character  of  the  persons  on  board."  This,  as  a  rule  of  duty 
and  liability,  is  in  strict  analogy  and  consistent  with  the  rules  by 
which  the  liability  of  common  carriers  of  persons  for  hire  is  deter- 
mined in  other  cases,  and  seems  to  be  well  expressed  and  properly 
limited.  It  may  be  conceded  that  Foster,  the  individual  who  in- 
flicted the  injury  resulting  in  the  death  of  the  plaintiff's  intestate, 
was  drunk  when  he  came  on  the  car;  but  so  long  as  he  remained 
quietly  by  the  driver  on  the  platform,  neither  entering  the  car,  nor 
molesting  or  annoying  the  passengers  in  any  way,  there  was  no 
occasion  for  removing  him,  and  the  conductor  would  not  have  been 
justified  in  refusing  to  permit  him  to  remain  as  a  passenger.  The 
fact  that  an  individual  may  have  drank  to  excess  will  not,  in  every 
case,  justify  his  expulsion  from  a  public  conveyance.  It  is  rather 
the  degree  of  intoxication,  and  its  effects  upon  the  individual,  and 
the  fact  that,  by  reason  of  the  intoxication,  he  is  dangerous  or  an- 
noying to  the  other  passengers,  that  gives  the  right  or  imposes  the 
duty  of  expulsion. 

While  Foster  remained  on  the  platform  of  the  car,  neither  inter- 
fering with  or  noticing  the  other  passengers,  there  was  nothing  to 
indicate  to  the  conductor  that  his  presence  was  offensive  to  the  pas- 
sengers, or  that  there  was  danger  of  harm  to  any  one  from  him. 
There  was  during  that  time  no  occasion,  and  would  have  been  no 
propriety,  in  causing  his  removal  from  the  car.  He  did,  however, 
thereafter  make  himself  peculiarly  obnoxious  to.  the  other  passen- 
gers, and  by  his  conduct  and  demeanor  grossly  insult  and  annoy 
them,  and  gave  oecasion  for  the  exercise  of  the  power  of  removal, 
had  the  conductor  seen  fit,  or  been  called  upon  to  exercise  it;  and 
had  he  continued  his  annoying  practices,  the  conductor  would  have 
been  faithless  to  his  duty  had  he  suffered  him  to  remain  on  the  car. 
After  Foster  came  into  the  car  and  insulted  and  intimidated  the 
females  under  the  protection  of  the  deceased",  the  latter  appealed  to 
the  conductor,  not  to  exclude  Foster  from  the  car,  but  to  make  him 
be  quiet,  and  the  conductor  directed  him  to  sit  down  and  be  quiet, 
and  he  did  thereupon  take  a  seat  on  the  opposite  side  of  the  car  from 
the  females,  and  near  the  deceased,  and  after  remaining  there  a 
short  time  left  the  car,  and  took  his  place  on  the  front  platform,  the 


978  CARRIERS    OF   PASSENGERS. 

front  door  of  the  car  being  closed,  and,  during  the  residue  of  the 
passage  to  Forty-sixth  Street,  gave  no  occasion  of  complaint,  so  far 
as  appears.     He  was  during  that  time  peaceable  and   inoffensive. 
During  this  latter  part  of  the  ride  there  was  no  occasion  for  remov- 
ing him  from  the  car,  unless  the  occasion  and  a  necessity  for  such 
removal  was  furnished  by  his  previous  conduct,   showing  that  be 
was  a  dangerous  or  improper  person  to  remain.     He  had  ceased  to 
address  or  in  any  way  to  insult  or  annoy  the  females,  upon  being 
requested  by  the  conductor  to  sit  down  and  be  quiet;  and  his  ready 
compliance  with  that  request,  and  his  taking  his  place  soon  there- 
after on  the  platform,  and  proceeding  quietly  and  peaceably  on  his 
journey,  was  some  evidence  that  there  was  no  reason  to  apprehend 
a  renewal  of  his  insults  in- that  direction,  and  justified  the  conductor 
in  at  least  giving  him  the  benefit  of  a  further  probation.     This  was 
precisely  in  accord  with  the  suggestion  of  the  deceased^  neither  he 
nor  the   conductor  apprehending  any  serious  harm  or  injury,  cer- 
tainly not  a  wanton  and  murderous   attach    upon  any  one    with   a 
dangerous  weapon.     It  is  true,  that  on  taking  his  seat,  he  did  not 
observe  the  strictest  rules  of  propriety,  and,  by  putting  his  feet  on 
the  seat,  violated  good  taste  and  good  manners ;  but  it  was  not  an 
offence  of  which  the  passengers  could  very  seriously  complain,  or 
which  essentially  violated  their  rights,  so  long  as  there  was  abun- 
dant room  for  all,    and  there  was  no   indecency    in   the  position. 
This  breach  of  good  manners  certainly  did  not  tend  to  show  that  he 
was  a  dangerous  man,  and  was  condoned  by  his  subsequent  with- 
drawal from  the  seat  and  the  body  of  the  car  entirely.     It  is  also  in 
evidence  that,  while  seated  near  the  deceased,  he  directed  abusive 
language  to  him,  and  made  threats  indicating  an  intent  to  do  him 
some  bodily  harm  before  he  left  the  car.     But  all  this  was  in  an 
undertone,  and,  so  far  as  appears,   was  unheard  by  the  conductor, 
occupying  his  proper  place  on  the  rear  platform,  and  neither  the 
deceased  nor  any  one  else  called  the  attention  of  the  conductor  to  it. 
It  was  probably  treated  with  indifference  by  the  deceased  and  all 
who  heard  it,  and  regarded  as  the  maudlin  and  senseless  gabble  of 
a  drunken  man,  unworthy  of  notice,  and  incapable  of  creating  any 
apprehension  of  danger  or  harm.     But  be  this  as  it  may,  there  is  no 
evidence  to  justify  an  inference  that  the  conductor  did  hear,  or  could 
have  heard  or  known  of  the  abuse  or  threat,    so  that  to  him  they 
were  not  evidence  that  he  was  an  unsafe  and  dangerous  man,  or  that 
there  was  any  reason  to  apprehend  injury  to  the  other  passengers 
from  him  or  his  acts. 

The  conductor  was  only  called  upon  to  act  upon  improprieties  or 
offences  witnessed  by  him,  or  made  known  to  him  in  some  other 
way,  and  the  defendants  can  only  be  charged  for  neglect  of  some 
duty  arising  from  circumstances  of  which  the  conductor  was  cog- 
nizant, or  of  which  he  ought,  in  the  discharge  of  his  duties  as  con- 
ductor, to  have  been  cognizant. 


LIABILITY   FOR   INJURIES. 

There  was  no  evidence  tending  to  show  that  the  conductor  y 
in  fault  for  not  removing  the  person  of  Foster  from  the  car.      He 
exerted  his  police  powers  by  causing  him  to  desist  from  his  offen- 
sive acts  and  approaches  toward  the  females,  and  supposed  thai   he 

had  done  all  that  was  necessary  to  preserve  the  peace  and  keep  good 
order  upon  the  car,  to  secure  the  other  passengers  against  furl 
annoyance,  as  well  as  all  that  the  deceased  asked  him  to  do.  If  the 
peace  could  be  preserved  and  the  quietness  and  comfort  of  the  pas- 
sengers could  be  secured,  as  he  supposed  he  had  done,  withoul  tin- 
expulsion  of  the  offender,  the  conductor  could  hardly  have  been 
called  upon  to  proceed  to  extremities  and  put  the  latter  from  the 
by  force.  An  unnecessary  resort  to  force,  in  ejecting  a  p; 
from  the  car,  might  have  given  the  passengers,  male  as  well  as 
female,  more  pain  and  annoyance  than  would  the  mere  presence  of 
a  drunken  man,  and  possibly  might  have  seriously  imperilled  their 
persons.  There  was  no  evidence  of  any  neglect  of  duty  on  the  part 
of  the  conductor  in  omitting  to  remove  the  person  of  Foster  from 
the  cars;  and  whatever  may  be  the  duties  or  powers  of  the  driver, 
except  as  he  is  in  subjection  to  the  eonductor,  there  is  no  evidence 
that  he  had  any  notice  or  knowledge  of  any  impropriety  of  conduct 
or  the  threatening  language  on  the  part  of  Foster,  except  as  he  must 
have  witnessed  what  passed  before  Foster  entered  the  ear.  There 
is  no  evidence  that  he  had  knowledge  of  what  transpired  within  the 
car;  and  after  Foster's  return  to  the  platform  there  was  nothing,  so 
far  as  appears,  to  excite  alarm,  or  create  apprehension  of  danger  or 
disturbance  or  annoyance  of  any  kind.  There  was  an  entire  absence 
of  evidence  of  any  connection  or  complicity  of  the  driver  with 
Foster,  or  that  the  driver  was  responsible  for  the  possession  by  the 
latter  of  the  iron  instrument  with  which  the  blows  were  inflicted 
that  caused  the  death  of  Putnam.  There  was  no  proof  from  whence 
or  of  whom  Foster  obtained  it,  and  none  to  show  that  the  dri 
either  acquiesced  in  or  assented  to  the  taking  of  it  by  Foster,  or 
that  he  knew  that  Foster  had  it.  There  was  no  evidence  of  neffli- 
gence  or  omission  of  duty,  or  want  of  proper  care  and  vigilance  on 
the  part  of  the  servants  and  agents  of  the  company  in  preserving 
order  and  keeping  the  peace  on  the  cars,  and  protecting  the  passen- 
gers, to  be  submitted  to  the  jury;  most  certainly,  none  connected 
with  the  attack  upon  and  death  of  the  intestate,  or  to  which  it  can 
be  legally  or  logically  traced.  The  rule  cannot  be  better  or  more 
concisely  expressed  than  as  stated  by  Judge  Shipman  in  Flint  v. 
Norwich  &  N.  Y.  Transportation  Co.,  supra:  "That  for  any  neglect 
or  omission  of  duty  in  the  preservation  of  order  and  the  removal  of 
dangerous  and  offensive  persons  by  the  owner  of  a  public  conveyance 
for  the  transportation  of  passengers,  or  his  servants  or  agents,  the 
carrier  is  liable  for  any  injury  to  other  passengers  which  m 
reasonably  be  anticipated,  or  naturally  be  expected  to  occur  in  view 
of  all  the  circumstances,  and  of  the  number  and  character  of  the 


980  CARRIERS    OF    PASSENGERS. 

persons  on  board."  It  does  not  follow  and  cannot  be  presumed  that 
because  a  man  is  drunk,  and  is,  in  that  condition,  offensive  to  others, 
as  well  by  his  demeanor  as  in  his  appearance,  that  he  is  a  dangerous 
man,  and  that  his  presence  imperils  the  safety  of  others;  that  be- 
cause he  is  drunk  he  may  violently  assault  or  murder  others  without 
provocation. 

If  there  was  anything  in  the  condition,  conduct,  appearance,  or 
manner  of  Foster  from  which  the  jury  could  reasonably  infer  that 
there  was  reason  to  expect  or  anticipate  an  attack  upon  the  deceased, 
or  any  other  passenger,  either  while  upon  the  car  or  in  the  act  of 
leaving,  the  facts  authorizing  such  inference  should  have  been 
proved,  and  knowledge  of  them  brought  home  to  the  conductor. 
The  injury  to  and  death  of  Mr.  Putnam  was  immediately  and  directly 
caused  by  the  murderous  attack  of  Foster,  and  the  carriage  of  the 
murderer  by  the  defendant  had  no  connection  with  and  did  not  cause 
the  act  or  directly  contribute  to  it. 

It  is  said  in  McGrew  v.  Stone,  53  Penn.  St.  436,  that  the  general 
rule  is  that  a  man  is  answerable  for  the  consequences  of  a  fault 
which  are  natural  and  probable ;  but  if  his  fault  happen  to  concur 
with  something  extraordinary  and  not  likely  to  be  foreseen,  he  will 
not  be  answerable. 

Bovill,  Ch.  J.,  in  Sharp  v.  Powell,  L.  Pv.,  7  C.  P.  253,  uses  this 
language:  "No  doubt  one  who  commits  a  wrongful  act  is  responsible 
for  the  ordinary  consequences  which  are  likely  to  result  therefrom ; 
but,  generally  speaking,  he  is  not  liable  for  damage  which  is  not  the 
natural  or  ordinary  consequence  of  such  an  act,  unless  it  be  shown 
that  he  knows  or  has  reasonable  means  of  knowing  that  consequences 
not  usually  resulting  from  the  act  are,  by  reason  of  some  existing 
cause,  likely  to  intervene  so  as  to  occasion  damage  to  a  third  per- 
son." The  law  ordinarily  looks  only  to  the  proximate  cause  of  an 
injury,  in  holding  the  wrong-doer  liable  to  an  action;  and  if  the 
damage  is  not  the  probable  consequence  of  a  wrongful  act,  it  is  not 
the  proximate  cause,  so  as  to  make  the  wrong-doer  liable.  See 
Marsden  v.  City  and  County  Assurance  Co.,  L.  R.,  1  C.  P.  232; 
Bigelow  v.  Reed,  51  Me.  325;  Railroad  Co.  v.  Reeves,  10  Wall.  176 
[398].  This  is  the  rule  in  cases  of  tort,  when  the  conduct  of  the 
defendant  cannot  be  considered  so  morally  wrong  or  grossly  negli- 
gent as  to  give  a  right  to  vindictive  or  exemplary  damages.  Bald- 
win v.  U.  S.  Tel.  Co.,  45  N.  Y.  744;  s.  c.  6  Am.  R.  165;  Boyle  v. 
Brandom,  13  M.  &  W.  738. 

The  assault  by  Foster  upon  the  deceased  could  not  have  been  fore- 
seen, and  it  was  not  the  reasonable  or  probable  consequence  of  the 
omission  of  the  conductor  to  eject  him  from  the  car,  and  upon  prin- 
ciple as  well  as  upon  authority  the  injury  was  too  remote  to  charge 
the  defendant  for  the  damages.  In  Scott  v.  Shepherd,  2  W.  Bl.  892, 
Guille  v.  Swan,  19  Johns.  381,  and  Vandenburgh  v.  Truax,  4  Den. 
464,  the  injuries  were  held  to  be  the  natural  and  direct  result  of  the 


LIABILITY   FOR   INJURIES.  981 

jonduct  of  the  party  charged,  although  he  did  not  intend  the  par- 
ticular injury  which  followed. 

There  was  no  evidence  to  carry  the  case  to  the  jury,  and  the  motion 
for  a  nonsuit  should  have  been  granted. 

The  judgment  must  be  reversed,  and  a  new  trial  granted. 


PITTSBURGH,  FORT   WAYNE   &   CHICAGO  R. 

CO.    v.    HINDS. 

53  Penn.  St.  512.     1866. 

This  action  was  brought,  December  5th,  1865,  by  Parker  Hinds 
and  Martha  Jane  his  wife,  against  The  Pittsburgh,  Fort  Wayne  & 
Chicago  Railway  Company,  for  injury  to  her  whilst  riding  on  the 
defendant's  train. 

Woodward,  C.  J.  The  action  is  for  an  injury  sustained  by  the 
plaintiff's  wife  whilst  she  was  a  passenger  in  the  cars  of  the  defend- 
ants; and  what  is  peculiar  in  the  case  is  the  fact  that  the  injury  was 
not  occasioned  by  defective  machinery,  or  cars  or  road,  or  by  any- 
thing that  pertained  properly  to  their  business  as  transporters,  but 
was  caused  by  the  fighting  of  passengers  among  themselves. 
Drunken  and  quarrelsome  men  intruded  into  the  ladies'  car  in  great 
numbers  whilst  the  train  stopped  at  Beaver  Station,  and  in  the  dis- 
graceful fight  which  ensued  among  them,  the  plaintiff's  arm  was 
broken,  and  for  this  the  railroad  company  is  sued.  Had  the  suit 
been  against  the  riotous  men  who  did  the  mischief,  the  right  of 
recovery  would  have  been  undoubted,  for  it  is  not  more  the  duty  of 
railroad  companies  to  transport  their  passengers  safely  than  it  is  the 
duty  of  passengers  to  behave  in  a  quiet  and  orderly  manner.  This 
is  a  duty  which  passengers  owe  both  to  the  company  and  to  fellow- 
passengers,  and  when  one  is  injured  by  neglect  of  this  duty  the 
wrong-doer  should  respond  in  damages.  But  in  such  a  case  is  the 
company  liable  ? 

There  is  no  such  privity  between  the  company  and  the  disorderly 
passenger  as  to  make  them  liable  on  the  principle  of  respondeat 
superior.  The  only  ground  on  which  they  can  be  charged  is  a  vio- 
lation of  the  contract  they  made  with  the  injured  party.  They 
undertook  to  carry  the  plaintiff  safely,  and  so  negligently  performed 
this  contract  that  she  was  injured.  This  is  the  ground  of  her  action 
—  it  can  rest  upon  no  other.  The  negligence  of  the  company,  or  of 
their  officers  in  charge  of  the  train,  is  the  gist  of  the  action,  and  so 
it  is  laid  in  the  declaration.  And  this  question  of  negligence  was 
submitted  to  the  jury  in  a  manner  of  which  the  company  have  no 
reason  to  complain.     The  only  question  for  us  as  a  Court  oi 


982  CARRIERS   OF   PASSENGERS. 

therefore,  is  whether  the  case  was,  upon  the  whole,  one  that  ought 
to  have  been  submitted.  The  manner  of  the  submission  having  been 
unexceptionable,  was  there  error  in  the  fact  of  submission? 

The  learned  judge  reduced  the  case  to  three  propositions.  He 
said  the  plaintiff  claims  to  recover  — 

1st.  Because  the  evidence  shows  that  the  conductor  did  not  do 
his  duty  at  Beaver  Station,  by  allowing  improper  persons  to  get  on 
the  cars. 

2d.  Because  he  allowed  more  persons  than  was  proper  under  the 
circumstances  to  get  on  the  train,  and  to  remain  upon  it. 

3d.  That  he  did  not  do  what  he  could  and  ought  to  have  done  to 
put  a  stop  to  the  fighting  upon  the  train,  which  resulted  in  the 
plaintiff's  injury. 

As  to  the  first  of  the  above  propositions  the  judge  referred  the 
evidence  to  the  jury,  especially  with  a  view  to  the  question  whether 
the  disorderly  character  of  the  men  at  Beaver  Station  had  fallen 
under  the  conductor's  observation  so  as  to  induce  a  reasonable  man 
to  apprehend  danger  to  the  safety  of  the  passengers. 

The  evidence  on  this  point  was  conflicting,  but  it  must  be  assumed 
that  the  verdict  has  established  the  conclusion  that  the  conductor 
knew  that  drunken  men  were  getting  into  the  cars.  Let  it  be 
granted  also  as  a  conclusion  of  law  that  a  conductor  is  culpably  neg- 
ligent who  admits  drunken  and  quarrelsome  men  into  a  passenger 
car.     What  then? 

The  case  shows  that  an  agricultural  fair  was  in  progress  in  the 
vicinity  of  Beaver  Station;  that  an  excited  crowd  assembled  at  the 
station  rushed  upon  the  cars  in  such  numbers  as  to  defy  the  resist- 
ing power  at  the  disposal  of  the  conductor;  and  that  the  man  who 
commenced  the  fight  sprung  upon  the  platform  of  the  hindmost  car 
after  they  were  in  motion. 

Of  what  consequence,  then,  was  the  fact  that  the  conductor  knew 
these  were  improper  passengers?  It  is  not  the  case  of  a  voluntary 
reception  of  such  passengers.  If  it  were,  there  would  be  great 
force  in  the  point,  for  more  improper  conduct  could  scarcely  be 
imagined  in  the  conductor  of  a  train  than  voluntarily  to  receive  and 
introduce  among  quiet  passengers,  and  particularly  ladies,  a  mob  of 
drunken  rowdies.  But  the  case  is  that  of  a  mob  rushing  with  such 
violence  and  in  such  numbers  upon  the  cars  as  to  overwhelm  the 
conductor  as  well  as  the  passengers. 

It  is  not  the  duty  of  railroad  companies  to  furnish  their  trains 
with  a  police  force  adequate  to  such  emergencies.  They  are  bound 
to  furnish  men  enough  for  the  ordinary  demands  of  transportation, 
but  they  are  not  bound  to  anticipate  or  provide  for  such  an  unusual 
occurrence  as  that  under  consideration. 

When  passengers  purchase  their  tickets  and  take  their  seats  they 
know  that  the  train  is  furnished  with  the  proper  hands  for  the  con- 
duct of  the  train,  but  not  with  a  police  force  sufficient  to  quell  mobs 


LIABILITY    FOB    INJUEI1     . 

by  the  wayside.     No  such  element  enters  into  the  implied  conti 

It  is  one  of  the  incidental  risks  which  all  who  travel  w 
themselves,  and  it  is  not  reasonable  that  a  ;  tuld  ti. 

it  upon  the  transporter. 

These  observations  are  equally  applicable  to  the  id  prop 

tion.     The  conductor  did  not  '•allow"  improper  numbers,  uo  more 
than  improper  characters,  to  get  upon  the  cars.      He  says  he  took  do 
fare  from  them,  and  in  no  manner  recognized  them  as   ; 
To  allow  undue  numbers  to  enter  a  car  is  a  great  wrong,  all 
great  as  knowingly  to  introduce  persons  of  improper  character,  and 
in  a  suitable  case   we   would  not  hesitate  to  cha  tie  prac 

severely.  But  this  is  not  a  case  in  which  the  conductor  had  any 
volition  whatever  in  respect  either  of  numbers  or  characters.  He 
was  simply  overmastered,  and  the  only  ground  upon  which  the 
plaintiff  could  charge  negligence  upon  the  company  would  be  in  not 
furnishing  the  conductor  with  a  counter  force  sufficient  to  repel  the 
intruders.  This  was  not  the  ground  assumed  by  the  plaintiff,  and 
it  would  scarcely  have  been  maintainable  had  it  been  assumed. 

Taking  the  case  as  it  is  presented  in  the  evidence,  we  think  it  was 
error  for  the  court  to  submit  the  cause  to  the  jury  on  these  two 
grounds.  But  upon  the  third  ground  we  think  the  cause  was 
properly  submitted. 

If  the  conductor  did  not  do  all  he  could  to  stop  the  fighting  there 
was  a  negligence.  Whilst  a  conductor  is  not  provided  with  a  force 
sufficient  to  resist  such  a  raid  as  was  made  upon  the  train  in  this 
instance,  he  has,  nevertheless,  large  powers  at  his  disposal,  and  it 
properly  used,  they  are  generally  sufficient  to  preserve  order  within 
the  cars,  and  to  expel  disturbers  of  the  peace.  His  official  character 
and  position  are  a  power.  Then  he  may  stop  the  train  and  call  to 
his  assistance  the  engineer,  the  fireman,  all  the  brakemen,  and  such 
passengers  as  are  willing  to  lend  a  helping  hand,  and  it  must  be  a 
very  formidable  mob,  indeed,  more  formidable  than  we  have  re: 
to  believe  had  obtruded  into  these  cars,  that  can  resist  such  a  force. 
Until  at  least  he  has  put  forth  the  forces  at  his  disposal,  no  con- 
ductor has  a  right  to  abandon  the  scene  of  conflict.  To  keep  his 
train  in  motion  and  busy  himself  with  collecting  fares  in  forward 
cars  whilst  a  general  fight  was  raging  in  the  rearmost  car,  where  the 
lady  passengers  had  been  placed,  was  to  fall  far  short  of  his  duty. 
Nor  did  his  exhortation  to  the  passengers  to  throw  the  fighters  out 
come  up  to  the  demands  of  the  hour.  He  should  have  led  the  way. 
and  no  doubt  passengers  and  hands  would  have  followed  his  lead. 
He  should  have  stopped  the  train,  and  hewed  a  passage  through  the 
intrusive  mass  until  he  had  expelled  the  rioters,  or  have  demon- 
strated,   by   an   earnest    experiment,    that    the    undertaking    was 

impossible. 

Such  are  the  impressions  which  this  novel  case  has  made  upon  ou 
minds.     We  think  there  was  error  in  submitting  the  case  upon  the 


r 


984  CARRIERS   OF    PASSENGERS. 

first  two  propositions,  but  none  in  submitting  it  on  the  third,  and  if 
the  record  showed  that  the  jury  decided  it  upon  this  latter  ground 
the  judgment  could  be  affirmed.  But,  inasmuch  as  the  error  we  find 
upon  the  record  may  have  infected  the  verdict,  the  judgment  must 
be  reversed,  and  a  venire  facias  de  novo  awarded. 


BATTON  v.    SOUTH  AND  NORTH   ALABAMA  R.   CO. 

77  Ala.  591.     1884. 

Somerville,  J.  The  action  is  one  of  novel  impression  for  which 
we  nowhere  find  a  precedent.  It  is  a  suit  for  damages  against  a 
common  carrier,  a  railroad  company,  instituted  by  a  passenger  for 
the  alleged  negligence  of  the  carrier  in  failing  to  protect  the  plain- 
tiff, who  was  a  female,  and  a  single  woman  at  the  time  of  bringing 
the  suit,  against  the  nuisance  of  indecent  language  and  conduct  of 
certain  unknown  strangers,  who  proved  disorderly  in  the  presence 
of  the  plaintiff,  while  she  was  seated  in  the  ladies'  waiting-room  of 
a  railroad  station  belonging  to  the  road  line  of  the  defendant  com- 
pany. No  assault  on  the  plaintiff  is  shown,  but  only  vulgar  and 
profane  language,  and  indecent  exposure  of  person,  and  disorderly 
conduct,  on  the  part  of  two  or  three  intruders,  who  are  in  no  wise 
connected  with  the  defendant,  as  servants  or  agents. 

It  may  be  admitted  that  the  plaintiff,  Mrs.  Batton,  who,  having 
married  since  suit  was  brought,  unites  with  her  husband  in  this 
action,  was  a  passenger,  inasmuch  as  she  had  purchased  a  ticket  on 
the  road,  and  had  entered  the  waiting-room  at  the  station,  not  an 
unreasonable  length  of  time  before  the  passenger  train  was  due  at 
Calera,  en  route  for  the  place  of  her  destination,  which  is  shown  to 
be  the  city  of  Birmingham.  Wabash  R.  R.  Co.  v.  Rector,  104  111. 
296;  Gordon  v.  Grand  St.  R.  Co.,  40  Barb.  546. 

The  nuisance  complained  of  appears  to  have  been  an  extraordi- 
nary occurrence,  and  one  of  which  no  officer  or  agent  of  the  defend- 
ant company  is  shown  to  have  been  at  the  time  cognizant,  except  a 
colored  employee,  or  porter,  whose  duties  were  confined  to  looking 
after  the  baggage  of  the  passengers. 

The  question  thus  presented  is,  whether  it  was  the  duty  of  the  de- 
fendant to  keep  on  hand  a  police  force  at  the  station  for  the  pro- 
tection of  passengers  against  the  insults  or  disorderly  violence  of 
strangers.  If  not,  they  would  be  guilty  of  no  negligence  which  would 
render  them  liable  in  damages  for  breach  of  duty.  The  broad  propo- 
sition is  urged  upon  us,  that  it  is  the  duty  of  railroad  companies, 
when  acting  as  common  carriers,  to  use  the  utmost  care  in  protect- 
ing passengers,  and  especially  female  passengers,  not  only  from  the 


LIABILITY   FOR   INJURIES. 

violence  and  rudeness  of  its  own  officers  and  agents,  but  also  of 
intruders  who  are  strangers.  We  need  not  say  that  there  may 
be  certain  circumstances  under  which  the  law  would  impose  such  a 
duty.  There  are  many  well-considered  cases  which  support  this 
view,  but  none  of  them  fail  to  impose  the  qualification,  that  tin- 
wrong  or  injury  done  the  passenger  by  such  strangers  must  have 
been  of  such  a  character,  and  perpetrated  under  such  circum 
as  that  it  might  reasonably  have  been  anticipated,  or  naturalh 
pected  to  occur.  In  Britton  v.  Atlanta  &  Charlotte  Ry.  Co., 
N.  C.  536;  18  Am.  &  Eng.  R.  Cas.  391;  s.  c.  43  Am.  Rep.  748,  the 
rule  is  stated  to  be,  that  "  the  carrier  owes  to  the  passenger  the  duty 
of  protecting  him  from  the  violence  and  assaults  of  his  fellow-pas- 
sengers or  intruders,  and  will  be  held  responsible  for  his  own  or  his 
servants'  neglect  in  this  particular,  when,  by  the  exercise  of  proper 
care,  the  acts  of  violence  might  have  been  foreseen  and  previ  oted, 
and  while  not  required  to  furnish  a  police  force  sufficient  to  over- 
come all  force,  when  unexpectedly  and  suddenly  offered,  it  is  his 
duty  to  provide  ready  help,  sufficient  to  protect  the  passenger  from 
assaults  from  every  quarter  which  might  reasonably  be  expected  to 
occur,  under  the  circumstances  of  the  case  and  the  condition  of  the 
parties."  We  may  assume  this  to  be  the  law  for  the  purpose  of  this 
decision,  as  it  seems  to  be  supported  by  authority.  New  <  Orleans 
R.  Co.  v.  Burke,  53  Miss.  200;  Pittsburg  R.  Co.  v.  Hinds,  53  Penn. 
St.  512  [981]  ;  Pittsburg  R.  Co.  v.  Pillow,  76  Penn.  St.  510;  Goddard 
v.  Grand  Trunk  R.  Co.,  57  Me.  202 ;  s.  c.  2  Am.  Rep.  39 ;  Cooley, 
Torts,  644,  645;  Nieto  v.  Clark,  1  Cliff.  145;  Putnam  v.  Broadway 
R.  Co.,  55  N.  Y.  108;  s.  c.  14  Am.  Rep.  190. 

In  the  case  of  the  Pittsburg  Ry.  Co.  v.  Hinds,  53  Penn.  St.  512 
[981],  the  plaintiff,  who  was  a  passenger,  sued  the  defendant  company 
for  an  injury  received  by  her  at  the  hands  of  a  mob,  who,  defying  the 
power  of  the  conductor,  entered  the  cars  at  a  wayside  station,  and 
commenced  an  affray,  which  resulted  in  an  injury  to  the  plaintiff. 
It  was  held  not  to  be  the  duty  of  the  railroad  companies  to  furnish 
their  trains  with  a  police  force  adequate  to  such  emergencies,  the 
court  observing  that  "they  are  bound  to  furnish  men  enough  for  the 
ordinary  demands  of  transportation,  but  they  are  not  bound  to  anti- 
cipate or  provide  for  such  an  unusual  occurrence  as  that  under  con- 
sideration." "It  is  one  of  the  accidental  risks."  said  Woodward, 
C.  J.,  "which  all  who  travel  must  take  upon  themselves,  and 
it  is  not  reasonable  that  a  passenger  should  throw  it  upon  the 
transporter." 

It  cannot  be  said  that  this  duty  of  carriers,  to  take  due  care  for 
the  comfort  and  safety  of  passengers,  is  to  be  confined  to  the  man- 
agement of  their  trains  and  cars;  for  the  better  view  is,  that  it 
extends  also  in  a  measure  to  what  has  been  termed  "subsidiary 
arrangements."  2  Rorer,  Railr.  951.  They  are  bound  to  keep  their 
stations  in  proper  repair,  and  sufficiently  lighted,  and  to   provide 


9S6  CAKUIERS   OF   PASSENGBKS. 

rea-onable  accommodations  for  the  passengers  who  are  invited  and 
expected  to  travel  their  roads.  Knight  v.  Portland  E.  Co.,  56  Me. 
234;  McDonald  v.  Chicago  R.  Co.,  26  Iowa,  124.  The  measure  of 
duty  is  admitted  by  all  the  authorities,  however,  not  to  be  so  great 
as  it  is  after  a  passenger  has  boarded  the  train,  for  reasons  of  a 
manifest  nature.  Bait.  &  Ohio  It.  Co.  v.  Schwindling,  101  Penn. 
St.  258;  s.  c.  47  Am.  Hep.  706;  8  Am.  &  Eng.  R.  Cas.  552,  note. 

We  do  not  think  that  there  is  any  duty  to  police  station-houses, 
with  the  view  of  anticipating  violence  to  passengers,  which  there 
are  no  reasonable  grounds  to  expect.  This  is  as  far  as  the  case  re- 
quires us  to  go.  The  liability  of  a  common  carrier,  when  receiving 
a  passenger  at  a  station  for  transportation,  ought  not  to  be  greater 
than  that  of  an  innkeeper,  who  is  never  held  liable  for  trespasses 
committed  ordinarily  by  strangers  upon  the  person  of  his  guests. 
2  Kent,  Com.  593*.  There  is  nothing  tending  to  prove  that  the 
company  had  notice  of  any  facts  which  justified  the  expectation  of 
such  a  wanton  and  unusual  outrage  to  passengers.  Their  contract 
of  safe  carriage  imposed  upon  the  company  no  implied  obligation  to 
furnish  a  police  force  for  the  protection  of  passengers  against  such 
insults.  It  is  shown  neither  to  be  commonly  necessary  nor  cus- 
tomary. It  was  a  risk  which  was  incidental  to  one's  presence  any- 
where when  travelling  without  a  protector,  and  it  was  the  plaintiff's 
risk,  not  the  defendant's. 

We  discovered  no  error  in  the  ruling  of  the  court,  and  the  judg- 
ment must  be  affirmed. 


d.    Contributory  Negligence. 

ILLINOIS   CENTRAL   R.    CO.    v.    GREEN. 
81  111.  19.     1875. 

Sheldon,  J.  This  was  an  action  on  the  case,  for  personal  injury 
to  appellee  whilst  a  passenger  on  the  cars  of  appellant. 

The  appellee  took  the  cars  of  appellant  at  Odin,  in  this  State, 
going  south,  at  about  9  o'clock  in  the  evening  of  May  25,  1870.  He 
was  going  to  a  place  about  seven  miles  east  of  Mt.  Vernon,  and  took 
a  ticket  to  Ashley,  which  is  some  five  miles  north  of  Little  Muddy 
Bridge.  The  accident  occurred  in  getting  off  the  train  at  this  bridge. 
There  was  no  station  there,  but  there  was  a  water-tank,  and  it  was 
a  regular  stopping-place  for  supplying  water  to  the  engines,  and  for 
no  other  purpose. 

Appellee's  account  of  the  affair  is  substantially  as  follows :  That 
the  conductor  on  the  train  took  his  ticket  between  Odin  and  Cen- 
tralia;  that  he  objected  to  the  conductor  taking  his  ticket,  because 


LIABILITY    FOR   INJURIES. 

appellee  was  a  stranger  on  the  road,  and  wanted  to  know  when  he 

arrived  at  Ashley;  that  the  conductor  said  to  him, 

no  uneasiness ;  we  always  see  that  our  passeng<  put  off  at  their 

regular  stations;"   that  they   stopped  at  Centralia,   and  remain* 
there  awhile;  that  Centralia  is  fourteen  miles  from  Ashley;  that  . 
went  to  sleep,  and  remained  so  until  he  heard  the  locomotive  whisl . 
and  the  station  called  out  of  Irvington,  which  was  seven  and  on< 
half  miles  from  Ashley;  that  it  was  four  miles  from  Irvington  to 
Richview;  that  Irvington  and  Richview  were  the  only  station 
tween  Centralia  and  Ashley;  that  after  leaving   Irvington  he  went 
to  sleep  again;  that  he  heard  the  whistle,  and  no  station  announced, 
and  then  when  the  cars  travelled  along  again  he  supposed  they  were 
going  down  grade,  which  he  took  to  be  a  grade  from  Ashley  to  Rich- 
view,  and  he  began  to  think  he  was  reaching  his  station,  and  he  in- 
quired if  they  were  coming  to  Ashley,   and  the  response  was,  by 
passengers  on  the  cars,  that  they  had  passed  Ashley  and  were  coming 
to  the  next  station ;  that  wThen  the  cars  became  about  still  he  stood 
up  in  his  seat  and  looked  back,  and  asked  the  passengers  if  th 
saw  anything  of  the  conductor  on  the  car,  and  they  remarked  they 
did  not;  that  he  felt  that  he  had  been  neglected,  and  went  to  the 
door,  and,  finding  it  unlocked,  turned  around  and  said,  "  Gentlemen, 
this  is  right,  I  suppose,"  and,  being  answered  in  the  affirmative,  he 
then  opened  the  door  and  went  out  on  the  platform;  a  light  was 
shining  on  the  platform,  but  there  was  no  brakeman  there;  that  he 
put  out  his  foot  to  reach  the  platform,  if  he  could,  and  there  being 
no  platform  as  he  expected,  it  gave  him  a  jerk  and  pulled  both  f< 
off  the  car,   and  left  him  hanging  by  one  hand;  his  weight  pull 
him  loose,  and  he  fell  and  received  the  injury;  that  it  was  betw< 
10  and  11  o'clock  at  night  when  he  arrived  at  Little  Muddy  Brid_ 
and  was  quite  dark.     In  falling,  appellee  did  not  strike  anything 
till  he  struck  the  ground  under  the  bridge,  a  distance  of  some  thirty 
feet.     He  said  he  knew  he  was  not  at  Ashley  before  he  went  out  of 
the  car. 

There  was  further  testimony  that  the  train,  at  the  time,  between 
Odin  and  Centralia,   was  under  the  charge  of   Conductor   Gilman. 
Oilman  testified  that  he  could  not  remember  having  any  conversa- 
tion with  any  passenger  on  that  train,  and  says  if  a  passenger  _ 
on  at  Odin  with  a  ticket  for  Ashley  he  would  punch  the  ticket  and 
hand  it  back.     The  train  at  Centralia  was  handed  over  by  Gilman 
to  Conductor  Morgan,  who  says  that  the  train  consisted  of  a  sle< 
coach,  a  ladies'  car,   a  gentlemen's  car,  a  second-class  and  baggage 
car  combined,  and  an  express  car.     On  leaving  Centralia.  he  s;. 
he  went  through  the  train  and  took  up  all  tickets  to  local  points  as 
far  south  as  Du  Quoin.     The  train  was  large,  and  .stopped  at  all 
regular  stations.      The  stations  were  called.      That   is   the  br;. 
man's  business,  although  he  did  it  also.     That  night  one  tan 

was    stationed    between  the   sleeping-coach  and  ladies'   car.      He 


988  CARRIERS   OF   PASSENGERS. 

would  call  the  stations  on  both  of  these  cars.  The  other  brakeman 
was  between  the  baggage  car  and  the  next  car  to  it,  —  the  gentle- 
men's car.  Thus  located,  all  the  brakes  of  the  four  cars  were  under 
the  control  of  the  two  brakemen.  The  train  stopped  at  Little  Muddy 
Creek  that  night  to  take  water.  The  bridge  is  for  trains  to  pass  on. 
The  train  stands  partly  on  the  bridge  while  they  take  water.  No 
station  there,  and  no  platform.  Bridge  never  used  except  for  cars. 
No  light  there  that  night  when  the  train  stopped.  Several  passen- 
gers got  off  at  Ashley  that  night,  among  them  women  and  children, 
and  were  attended  to  by  the  conductor.  That  the  general  custom  of 
railroads  is  to  notify  passengers  of  the  stations  by  calling  out  the 
names  of  the  stations  as  they  are  reached. 

Thomas  Winters  was  the  brakeman  stationed  that  night  between 
the  baggage  car  and  the  gentlemen's  car.  He  testifies  that  he  called 
the  station  as  the  train  arrived  at  Ashley  on  the  night  of  the  acci- 
dent. He  remembers  it  from  the  fact  that  Morgan,  the  conductor, 
the  next  day  asked  him  if  he  had  called  that  station,  and  he  then 
remembered  that  he  had. 

A  Mr.  Turlay  of  Centralia,  who  was  on  the  train,  states  that  he 
saw  a  passenger  get  up  and  walk  out  of  the  rear  door  of  the  car  at 
Little  Muddy  Bridge,  and  he  supposed  that  he  was  going  into  the 
ladies'  car  on  account  of  the  annoyance  occasioned  to  him  by  the 
conversation  of  a  party  of  four  persons  who  were  sitting  opposite  to 
him,  Mr.  Turlay  being  one  of  the  number;  that  the  man  never  asked 
any  question  of  any  one,  so  far  as  he  heard. 

We  are  of  opinion  the  evidence  in  this  case  discloses  no  cause  of 
action. 

It  is  said  there  was  negligence  in  carrying  the  appellee  past  his 
station. 

Conceding  all  that  is  claimed  in  that  respect,  appellee  would  not, 
for  such  cause,  be  justified  in  jumping  off  the  train,  or  otherwise 
needlessly  exposing  himself  to  injury,  and  then  claim  the  liability 
of  appellant  for  the  injury  he  might  receive  in  consequence.  The 
injury  here  received  had  no  proper  connection  with  being  carried 
past  a  destined  station,  and  for  such  act  appellant  cannot  be  held 
responsible  for  any  such  remote  and  unnatural  consequence  thereof 
as  the  injury  here  sued  for. 

It  is  then  insisted  that  the  stoppage  of  a  passenger  car  at  such  a 
place  as  the  one  in  question,  without  some  precaution  to  notify  pas- 
sengers of  danger,  was  an  act  of  gross  negligence. 

But  why  notify  passengers  of  danger?  It  was  a  stopping-place 
for  getting  water,  not  for  passengers.  The  bridge  was  intended 
solely  for  the  passage  of  cars,  not  for  the  alighting  of  passengers 
upon  it.  The  place  for  the  passenger  here  was  inside,  not  outside 
of  the  car.  The  train  and  the  appellee  in  his  proper  place  inside 
the  car  were  as  safe  upon  the  bridge  as  they  would  have  been  any- 
where away  from  it.     The  fact  that  the  cars  were  upon  the  bridge 


LIABILITY    FOR    INJUBI1  989 

involved  no  danger  or  risk  to  the  passenger,  so  long  as  he  remained 
in  his  right  place,  within  the  car. 

There  was  a  right  to  presume  that  the  passenger  would  keep  in 
his  place  inside  the  car.  It  was  not  to  be  anticipated  that  he  would 
be  getting  off  the  car  where  he  had  no  business  to  do  so,  and  that 
there  was  any  necessity  for  providing  against  it. 

It  cannot  be  said  that  there  was  any  invitation  to  appellee  to  alight 
where  he  did.  The  mere  stopping  of  the  train  is  not  to  be  so 
regarded. 

It  may  be  inferred,  from  appellee's  testimony,  that  he  heard  the 
whistle  at  the  bridge.  If  so,  it  was  not  a  signal  of  approach  to  a 
station.  The  testimony  of  the  conductor  on  that  head  was  :  "  They 
[brakemenj  know  where  the  tank  is,  and  the  engineer  does  not 
whistle  in  coming  to  it,  with  the  exception  that,  once  in  a  while, 
when  the  engineer  sees  the  train  is  going  by  the  tank,  he  will  then 
give  a  little  toot  —  whistle  down  brakes;  don't  know  whether  he 
whistled  that  night  or  not.  There  is  a  fixed  whistle  for  down 
brakes,  one  short  whistle,  and  is  used  on  all  portions  of  the  line. 
They  use  the  same  whistle  when  they  want  to  stop,  except  at  regu- 
lar stations  they  whistle  a  long  whistle,  and  don't  whistle  any  stop 
whistle  at  all.  This  short  toot  is  used  to  apply  the  brakes  between 
stations,  where  there  is  danger,  when  you  want  the  train  to  stop  at 
an  irregular  place  where  there  is  danger,  or  anything  on  the  track, 
but  in  stopping  regularly  we  don't  use  that  at  all." 

Appellee  testified  that  he  was  accustomed  to  travel  on  railways. 
He  was  not  justified  in  taking  the  whistle  as  notice  of  approaching 
a  station.  Any  encouragement  to  get  off,  which,  according  to  his 
testimony,  he  might  have  received  from  any  passenger  of  course  is 
not  to  be  imputed  to  the  company  as  in  any  way  its  act.  Appellee 
getting  off  the  car  where  he  did  was  an  entirely  uncalled  for  and 
voluntary  act  of  his  own,  uninvited  and  unencouraged  by  any  one  in 
the  management  of  the  train,  and  he  took  the  risk  of  the  conse- 
quence. The  act  of  thus  getting  off  in  the  darkness  of  night,  at  an 
unknown  and  dangerous  place,  was  one  of  gross  carelessness, 
whereby  appellee  exposed  himself  to  the  injury  which  he  received. 
The  harm  which  one  brings  upon  himself  he  is  to  be  considered  as 
not  having  received.  So  far  as  his  relations  to  others  are  concerned, 
such  harm  is  uncaused.  Chicago  &  Alton  Railroad  Company  v. 
Becker,  76  111.  31. 

Had  appellee  used  ordinary  prudence,  the  casualty  would  not  have 
happened.  Having  failed  in  this,  the  company  ought  not  to  be 
liable.  Chicago  &  Northwestern  Railway  Co.  v.  Sweeney.  52  111. 
331.  And  see  Chicago  &  Alton  Railroad  Co.  v.  Gretzner,  40  id.  75; 
Chicago,  Burlington  &  Quincy  Railroad  Co.  v.  Van  Patten.  64  id. 
511;  Chicago  Rock  Island  &  Pacific  Railroad  Co.  v.  Bell,  7<>  id. 
103;  Todd  v.  Old  Colony,  etc.,  Railroad  Co.,  3  Allen.  18;  Louis- 
ville and  Nashville  Railroad  Co.  v.  Sickings,  5  Bush,  1;  Pittsburg 


990  CARRIERS    OF   PASSENGERS. 

&  Connellsvilie  Railroad  Co.  v.  Andrews,  39  Md.  329;  2  Redf.  Am. 
Railway  Cases,  552,  in  note  to  McClurg's  case;  The  Indianapolis, 
etc.,  Railroad  Co.  v.  Rutherford,  29  Ind.  82. 

It  is  a  requisite  to  the  liability  of  a  railway  company,  as  a  pas- 
senger carrier,  that  the  passenger  should  not  have  been  guilty  of 
any  want  of  ordinary  care  and  prudence  which  directly  contributed 
to  the  injury.     2  Redfield  on  Railways,  224,  236. 

The  judgment  must  be  reversed,  there  being  no  cause  of  action 
under  the  evidence. 


MORRISON  v.   ERIE   R.   CO. 
56  N.  Y.  302.     1874. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  in  favor  of  plaintiff,  entered  upon 
an  order  denying  motion  for  a  new  trial  and  directing  judgment  on 
a  verdict. 

This  action  was  brought  to  recover  damages  for  injuries  sustained 
by  plaintiff  while  leaving  a  car  on  defendant's  road  at  Niagara 
Falls. 

Plaintiff  was  twelve  years  of  age,  and  was  in  the  company  and 
care  of  her  parents.  They  were  passengers  on  defendant's  car  from 
Buffalo  to  Niagara  "Falls.  Before  the  train  reached  the  latter 
station,  the  conductor  called  out  the  name  of  the  station.  The  car 
stopped,  plaintiff  and  her  parents  arose  from  their  seats,  gathered 
up  their  packages  and  stepped  out  into  the  passage-way  between  the 
seats,  but  before  they  had  passed  out  of  the  car  the  train  started 
and  moved  slowly  by  the  station.  The  party  knew  the  train  was 
in  motion  while  yet  inside  the  car;  they  passed  out  upon  the  plat- 
form of  the  car.  The  train  had  passed  beyond  the  stationary  plat- 
form of  the  depot.  It  was  evening  and  was  dark.  Mr.  Morrison 
took  plaintiff  under  his  right  arm,  and,  taking  hold  of  the  iron  rod 
at  the  rear  end  of  the  platform  with  his  left  hand,  stepped  from  the 
car;  he  fell,  and  plaintiff's  foot  was  crushed  by  the  car  wheels. 
Further  facts  appear  in  the  opinion. 

At  the  close  of  plaintiff's  evidence  and  also  of  the  entire  evidence 
defendant's  counsel  moved  for  a  nonsuit,  which  was  denied,  and  de- 
fendant excepted. 

The  court  instructed  the  jury  among  other  things,  that  the  plain- 
tiff had 'a  right  to  leave  if  the  cars  were  under  motion,  and  he  knew 
it,  if  he  exercised  ordinary  care  under  the  circumstances,  in  doing  so. 
The  defendant's  counsel  excepted  to  this  instruction. 

The  defendant's  counsel  requested  the  court  to  instruct  the  jury, 
that  if  they,  from  the  evidence,   found  the  father  had  the  care, 


LIABILITY   FOR   INJURIES.  991 

custody,  and  control  of  the  plaintiff,  as  his  child,  and  the  cars  . 
under  motion,  and  he  knew  it  when  he  took  her  under  his  arm  to  go 
out  of  the  car,  and  when  the  cars  were  thus  under  motion,  his  duty 
was  not  to  undertake  to  get  off.  The  court  declined  except  as  quali- 
fied, that  the  father  was  bound  to  use  ordinary  care  in  removing 
her  from  the  train.     Defendant's  counsel  excepted. 

Defendant's  counsel  further  requested  the  court  to  charge,  that  if 
the  jury  found  that  the  father,  under  the  circumstances  stated  in  the 
last  request,  undertook  to  get  off  from  the  cars  while  they  were  to 
his  knowledge  under  motion,  and  his  so  doing  contributed  to  the 
injury,  plaintiff  cannot  recover.  The  court  declined  so  to  charge,  and 
plaintiff  excepted. 

The  jury  found  a  verdict  for  plaintiff.  Exceptions  were  ordered 
to  be  heard  at  first  instance  at  General  Term. 

Folger,  J.  The  plaintiff  was  a  paying  passenger  upon  the  cars 
of  the  defendant,  and  it  owed  her  the  duty  of  taking  her  up,  carry- 
ing her,  and  setting  her  down  safely,  so  far  as  it  was  concerned 
therein. 

There  was  testimony  in  the  case,  at  every  stage  of  the  trial,  upon 
which  the  jury  had  a  right  to  rely;  and  relying  upon  which  they 
had  a  right  to  find,  that  the  train  on  which  she  was,  did  not  stop  at 
the  station,  at  which  she  was  to  be  set  down,  long  enough  for  her  to 
alight  with  ease  and  safety.  Hence,  the  plaintiff  made  out  so 
much  of  her  case  as  consisted  in  showing  that  the  defendant  was 
negligent  in  its  duty  toward  her. 

There  are  undisputed  facts  in  the  case,  however,  which  raise  other 
important  questions. 

As  the  train  approached  the  station  at  which  she  was  to  be  set 
dowTn,  the  conductor  called  out  the  name  of  it  and  then  the  train 
stopped.  This  was  a  notice  and  an  invitation  for  her  to  get  out. 
It  was  further  noticed  that  it  was  time  to  alight,  and  that  time 
enough  would  be  given  therefor.  The  plaintiff  and  her  parents,  in 
whose  care  she  was,  prepared  to  do  so,  gathered  their  packages,  and 
were  on  their  feet  in  the  passage-way  between  the  seats.  Up  to 
this  time  it  cannot  be  said  that  either  party  was  lacking  in  due  care. 
Before  they  got  outside  of  the  car,  however,  the  train  started 
sharply,  and  moved  slowly  by  the  station.  In  this,  as  before  said, 
was  the  negligence  of  the  defendant.  The  plaintiff,  her  father  and 
her  mother,  while  they  were  yet  inside  the  car,  knew  that  the  train 
was  moving;  as  she  was  of  tender  years  and  immediately  under 
their  care  and  control,  their  acts  and  conduct  were  her  acts  and  con- 
duct, and  she  is  to  be  judged  therein-.  The  train  still  moving,  tie  y 
passed  out  of  the  car  on  to  its  platform.  It  was  evening  and  was 
dark.  The  train  had  passed  away  from  the  stationary  platform, 
built  at  the  side  of  the  track,  and  on  a  level,  or  nearly  so,  with  the 
platform  of  the  car.  To  reach  the  earth  from  the  latter,  a  person 
must  go  down  from  off  the   steps  thereof,    still   lower,    on   to  the 


992  CARRIEES    OF    PASSENGERS. 

ground.  He  must  for  a  space  of  time  be  in  the  air,  without  support 
either  by  hand  or  foot;  he  must,  in  fact,  fall  or  drop  from  the  mov- 
ing train  to  the  ground,  with  the  momentum  downward  of  his 
weight,  and  the  momentum  forward,  got  from  the  motion  of  the  car, 
these  two  not  in  accord.  This  the  father  of  the  plaintiff  undertook 
to  do;  not  only  with  his  own  weight  making  the  descent  alone,  but 
holding  the  body  of  the  plaiutiff  under  one  of  his  arms,  having  but 
the  other  to  sustain  and  guide  himself,  thus  laden;  holding  fast 
Avith  his  other  hand  to  the  railing  of  the  car.  He  did  this  aware 
that  there  was  danger  in  it.  It  was  because  he  knew  that  it  was 
dangerous  that  he  would  not  let  the  plaintiff  undertake  it  alone,  by 
reason  of  the  train  being  in  motion.  He  was  not  directed  nor  ad- 
vised to  attempt  thus  to  alight;  on  the  contrary,  he  was  told  not  to; 
though  he  had  then  got  so  far  in  it  as  to  have  lost  his  balance,  to  be 
unable  to  recover  himself  and  retake  his  steps.  He  fell,  still  hold- 
ing the  plaintiff,  and  she  was  injured.  Upon  this  state  of  facts,  the 
defendant,  by  motion  for  nonsuit,  and  by  exceptions  to  the  charge 
given  and  to  the  refusals  to  charge,  presents  the  question  whether 
the  plaintiff  is  chargeable  with  negligence  contributory  to  the  acci- 
dent. The  learned  counsel  for  the  defendant  claims  that  the  facts 
are  such,  as  that  as  a  matter  of  law,  contributory  negligence  is 
shown,  and  that  there  was  not  a  question  of  fact  for  the  jury.  He 
insisted  that  as  a  matter  of  law,  it  is  always  negligence  and  want  of 
ordinary  care  for  a  person  to  attempt  to  get  from  off  a  car  when  it 
is  in  motion.  Were  I  disposed  to  accede  to  this  proposition  upon 
principle,  which  I  am  not,  I  should  feel  myself  precluded  by  prior 
decisions  of  this  court,  and  influenced  to  a  contrary  conclusion  by 
those  of  other  courts.  Filer  v.  N.  Y.  C.  R.  R. ,  49  N.  Y.  47  [995], 
and  cases  cited;  Penn.  R.  R.  Co.  v.  Kilgore,  32  Penn.  St.  292.  The 
rule  established,  and  as  I  think  the  true  one  is,  that  all  the  circum- 
stances of  each  case  must  be  considered,  in  determining  whether  in 
that  case,  there  was  contributory  negligence  or  want  of  ordinary 
care,  and  that  it  is  not  sound  to  select  one  prominent  and  important 
fact,  which  may  occur  in  many  cases,  and  to  say,  that  being  present, 
there  must,  as  matter  of  law,  have  been  contributory  negligence. 
The  circumstances  vary  infinitely,  and  always  affect  and  more  or 
less  control  each  other.  Each  must  be  duly  weighed,  and  relatively 
considered,  before  the  weight  to  be  given  to  it  is  known.  This  is 
not  to  say,  however,  that  in  every  case  it  is  a  question  for  the  jury 
of  fact,  or  of  fact  and  of  law  to  be  given  to  the  jury  with  instruc- 
tions. Where  the  facts  are  undisputed,  the  question  of  contributory 
negligence  may  become  one  of  law,  as  the  other  questions  which 
arise  upon  a  trial,  and  are  submitted  to  the  decisions  of  the  court  on 
a  motion  for  a  nonsuit  or  otherwise.  In  this  case  there  are  certain 
facts  as  to  which  there  is  and  can  be  no  dispute ;  and  they  are  of 
such  character  and  weight  that  it  is  for  the  court  to  say  whether 
there  is  room  for  doubt  or  query,  but  that  there  was  a  complete 


LIABILITY  FOR   INJURIES.  993 

absence  of  that  care  and  prudence,  without  which,  in  the  direction 
of  conduct,  there  is  negligence.  I  am  aware  that  it  has  been  I 
more  than  once  in  this  court,  and  more  than  once  in  other  courts, 
that  though  an  injury  has  been  received  by  a  passenger  in  alighting 
or  passing  from  a  car  while  it  is  in  motion,  yet  it  was  a  question 
for  the  jury  to  answer,  whether  there  was  a  lack  of  ordinary  care 
under  all  of  the  circumstances.  Mclntyre  v.  N.  Y.  C.  R.  l;..  37 
N.  Y.  287;  49  id.  siqira,  and  cases  cited.  In  those  cases,  the  pas- 
senger was  not  left  alone,  to  his  own  judgment  and  discretion.  A 
direction  or  notification  of  some  employee  of  the  defendant,  having 
authority  or  place  upon  the  train,  came  in  to  influence  the  mind  of 
the  passenger,  to  remove  apprehension  of  danger,  to  induce  a  sense 
of  safety  in  action,  and  a  failure  to  exercise  the  prudence  which  the 
occasion  demanded;  and  it  was  as  if  the  defendant  had  assumed  the 
control  and  responsibility  of  the  act;  and  so,  there  being  no  respon- 
sible volition  by  the  passenger,  there  was  no  damnifying  negligence. 
And  there  it  was  under  the  pressure  of  these  affecting  and  control- 
ling circumstances  in  the  case,  that  the  question  was  left  to  the 
jury  to  determine  whether  there  was  a  failure  to  exert  ordinary  care 
and  prudence.  So  in  Foy  v.  L.  B.  &  So.  C.  R.  Co.,  18  Com.  Ben. 
[N.S.],  225,  the  porter  of  the  defendant  directed  the  alighting  of 
the  passenger  where  there  was  no  platform.  And  that  stress  is  to 
be  laid  upon  this  circumstance  is  shown  by  the  judgment  in  Siner 
v.  G.  W.  R.  Co.,  L.  R.  [3  Exch.],  150;  affirmed  [Exch.  Ch.].  4  id. 
117.  Though  in  Penn.  R.  R.  Co.  v.  Kilgore,  32  Penn.  St.  232, 
there  was  no  such  fact,  yet  there  were  facts  which  made  the  case 
quite  unlike  that  here,  and  so  characterized  it  as  to  render  it  appro- 
priate to  commit  it  to  a  jury.  There,  the  passenger  was  a  woman 
in  feeble  health,  in  a  strange  place,  with  her  three  young  children 
in  her  charge.  At  dusk  the  train  had  stopped  at  the  station  to 
which  she  had  taken  passage.  She  and  her  children  had  left  their 
seats  and  passed  out  while  the  train  was  at  a  stand-still;  two  of  the 
young  folks  had  passed  off;  she  was  on  the  steps  of  the  car  with  the 
other;  by  the  starting  of  the  cars,  that  one  was  thrown  prone  upon 
the  station  platform ;  at  the  instant  she  leaped  upon  that  platform 
and  was  hurt.  It  was  a  matter  of  impulse,  not  of  thought,  discre- 
tion, and  prudence,  and  plainly  quite  different  from  that  in  the  case 
at  hand.  It  is  significant,  too,  that  in  the  charge  in  that  case  ex- 
ceptions to  which  brought  up  the  case  for  review,  the  court  said: 
"If  the  plaintiff  had  been  in  the  car,  or  on  the  platform,  when  the 
train  had  started  or  was  in  motion,  and  was  in  a  situation  to  choose 
between  getting  off  or  remaining  on,  and  with  a  full  consciousness 
of  her  danger,  with  foolish  rashness,  persisted  in  leaving  the  car  in 
defiance  of  warning  to  the  contrary,  we  would  be  compelled  to  tell 
you,  as  matter  of  law,  that  she  could  not  recover."  It  is  plain  that 
there  was  quite  a  different  state  of  facts  in  this  case  from  that  in 
Kilgore's  case  and  other  cases  above  cited.     Here,  the  plaint  it 


994  CARRIERS    OF    PASSENGERS. 

which  is  the  same  thing,  her  father,  was  not  influenced,  by  the  com- 
mand or  direction  of  an  employee  of  superior  experience  and  prac- 
tical judgment;  he  was  not  obliged  to  choose  one  of  two  courses, 
one  of  which  might  endanger  himself  or  the  plaintiff,  and  the  other 
might  expose  others  in  his  charge  to  want  of  care  and  protection; 
nor  was  he  obliged  to  choose  suddenly;  he  had  time  for  thought, 
within  the  car  and  on  the  way  out  to  the  steps  of  ib;  he  knew  that 
the  train  was  in  motion  before  he  left  the  inside  of  the  car,  or 
essayed  to  get  down ;  he  not  only  knew  that,  but  was  then  in  full 
consciousness  of  the  fact  that  there  was  danger  in  the  attempt,  for 
he  would  not  suffer  the  child  to  undertake  it  by  herself ;  and  on  the 
other  hand,  that  there  was  at  the  most  no  danger,  but  only  incon- 
venience in  remaining  on  the  train;  knowing  that  there  was  danger 
in  the  attempt  by  one  person,  he  doubled  it  or  added  to  it,  by  load- 
ing himself  with  the  weight  of  his  child,  and  in  such  wise  as  to 
deprive  himself  of  the  use,  in  the  attempt,  of  one  arm  and  one  hand; 
he  did  not  make  the  attempt  when  he  had  a  structure  to  step  out 
upon,  level  with  that  which  he  must  leave,  but,  when  obliged,  as  he 
knew,  to  let  himself  fall  to  the  ground,  through  some  space,  with- 
out support  from  anything  during  the  lapse,  and  with  no  guidance 
save  the  momentum  of  the  drop  and  of  that  got  from  the  forward 
motion  of  the  car,  —  forces  acting  at  variance  from  each  other,  and 
neither  tending  to  steadiness  and  uprightness  of  position.  All  of 
this  was  no  result  of  impulse,  or  choice  suddenly  compelled.  There 
was  time  for  prudent  choice,  and  correct  apprehension  of  all  the 
circumstances. 

Now,  it  is  certain  that  but  for  the  attempt  of  the  plaintiff's 
father  then  to  get  down  from  out  the  car  she  would  not  have  been 
injured  as  she  was.  His  act,  which  was  her  act,  in  thus  attempt- 
ing, did  contribute  to  the  accident.  Was  it  a  faulty  act  in  him? 
If  it  was,  then  it  was  such  contributory  negligence  as  relieves  the 
defendant  from  liability  to  her,  for  their  negligence  toward  her. 
It  was  faulty  in  him,  if  it  was  such  an  act  as  would  not  have  been 
done  by  one  exercising  the  care  for  his  person,  which  men  of  ordi- 
nary care  and  prudence  for  their  safety  and  well-being  are  accus- 
tomed to  employ  under  the  same  or  like  circumstances.  Can  it  be 
said  that  a  person  of  ordinary  prudence  and  care  would  have  swung 
himself  from  a  car  in  motion  down  to  the  ground  in  the  dark,  laden 
with  the  wreight  of  a  child  twelve  years  old,  having  but  one  hand 
and  one  arm  to  aid  himself  with,  when  there  was  no  other  danger 
to  be  avoided  by  meeting  this,  and  no  incentive  to  the  act,  other 
than  the  inconvenience  of  being  carried  by  his  place  of  abode,  and 
with  a  full  apprehension  of  the  danger  he  was  about  to  run?  I 
think  not.  And  I  am  of  the  opinion  that  it  is  so  clear  that  the 
law  and  the  court  should  have  given  the  answer  without  calling  in 
the  aid  of  a  jury.  Lucas  v.  X.  B.  &  T.  B,.  E.  Co.,  6  Gray,  64.  is, 
in  principle,   in   support   of   the  foregoiug;   as   is  also  Phillips    v. 


LIABILITY   FOE   INJURIES.  995 

Hens.  &  Sar.  K.  R.  Co.,  49  N.  Y.  177.     And  see  also  Nichol 
Sixth  Av.  R.  R.  Co.,  38  N.  Y.  131. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with 
costs  to  abide  the  event. 

All  concur  except  Church,  Ch.  J.,  and  Andrews,  J.,  dissenting. 


FILER   v.   NEW   YORK  CENTRAL  R.    CO. 
59  N.  Y.  351.     1874. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  fourth  judicial  department,  affirming  a  judgment  in 
favor  of  plaintiff,  entered  upon  a  verdict. 

This  action  was  brought  to  recover  damages  for  injuries  received 
by  plaintiff,  while  getting  off  a  train  on  defendant's  road,  alleged 
to  have  been  occasioned  by  defendant's  negligence. 

Plaintiff  took  passage  at  Rochester  for  Fort  Plain,  where  she 
arrived  about  3  a.  m.  The  brakeman  called  out  the  name  of  the 
station;  the  cars  moved  slowly,  but  did  not  stop.  Plaintiff  went 
out  on  the  platform,  and,  while  waiting,  some  one  told  her  that  she 
had  better  get  off,  as  the  train  was  not  going  to  halt  any  more.  As 
to  who  this  person  was,  the  evidence  was  conflicting,  plaintiff's 
evidence  tending  to  show  it  was  a  brakeman,  defendant's,  that  it 
was  not  a  person  employed  on  the  train  but  a  passenger.  Plaintiff 
attempted  to  alight,  her  clothing  caught  on  the  step,  and  she  was 
thrown  down  and  injured.  In  regard  to  the  advice  or  direction 
given  to  her,  the  court  charged  that  he  did  not  see  that  it  would 
make  any  difference  whether  it  was  a  brakeman  or  any  other  person, 
but  the  question  was:  "Was  it  prudent  for  her,  acting  under  the 
advice  thus  given  to  her  by  anybody,  to  alight  from  that  train'.'"' 
To  which  defendant's  counsel  duly  excepted. 

Grover,  J.  This  case  has  been  before  this  court  upon  a  previous 
occasion,  when  the  questions  presented  were  nearly  all  determined. 
49  N.  Y.  47;  see,  also,  William  Filer  v.  N.  Y.  C.  R,  R,  Co.,  id. 
42.  Some  of  the  questions  were,  upon  the  present  trial,  presented 
in  an  aspect  somewhat  different,  but  not  so  varying  the  legal  prin- 
ciple, applicable  thereto,  as  to  require  further  discussion.  Upon 
the  last  trial,  an  additional  question  was  presented.  The  evidence 
showed  that  the  injury  sustained  by  the  plaintiff  was  caused  by  her 
getting  off  the  cars  while  in  motion,  and  it  was  insisted,  by  the 
counsel  for  the  defendant,  that  this  was  contributory  negligence, 
on  her  part,  such  as  to  preclude  her  recovery.  To  meet  this  objec- 
tion, the  plaintiff  gave  evidence  tending  to  show  that  she  was  told 
by  the  brakeman  to  get  off  where  and  when  she  did,  but  the  evi 


996  CARRIEES    OF    PASSENGERS. 

dence  was  conflicting  as  to  whether  this  direction  to  her  was  given 
by  the  brakeraan  or  some  other  person  having  no  connection  with 
the  management  of  the  train  or  anything  to  do  with  it  except  as 
passengers.  Upon  this  point  the  judge  charged  the  jury,  in  sub- 
stance, that  it  was  immaterial,  and  did  not  make  any  difference 
whether  such  direction  was  given  by  the  brakeman  or  any  other 
person;  that  it  was  for  them  to  determine  whether  she  was  guilty 
of  negligence  in  getting  off  after  having  received  such  direction 
from  any  one.  I  think  this  was  error.  The  employees  upon  a 
train,  including  brakemen,  are  in  the  line  of  their  duty  in  assisting 
passengers  in  getting  on  and  off  the  train,  and  in  directing  them  in 
procuring  seats.  Passengers  rightly  assume  that  these  persons  are 
familiar  with  all  the  movements  of  the  train,  and  know  whether 
they  can,  under  the  particular  circumstances,  get  on  or  off,  or  move 
upon  the  train  with  safety.  When  the  conductor  or  brakeman 
directs  a  passenger  to  get  off  the  train,  although  in  motion,  such 
passenger  will  naturally  assume  that  he  knows  it  is  entirely  safe, 
or  he  would  not  give  the  direction.  See  cases  cited  in  opinions  in 
above  cases.  Not  so  in  case  the  direction  is  given  by  one  having 
no  connection  with  the  train,  other  than  a  passenger.  As  to  such 
a  person,  there  is  no  reason  to  suppose  that  he  knows  anything 
more  about  whether  it  is  safe  to  follow  his  direction  than  the  one 
to  whom  it  is  given. 

For  the  above  error  in  the  charge,  the  judgment  must  be  reversed, 
and  a  new  trial  ordered,  costs  to  abide  event. 


BUEL   v.   NEW   YORK   CENTRAL   R.   CO. 
31  N.  Y.  314.     1865. 

Appeal  from  judgment  of  the  Supreme  Court.  The  action  was  to 
recover  damages  for  injuries  received  by  the  plaintiff,  while  a  pas- 
senger on  the  defendant's  railroad,  in  October,  1857,  by  a  collision 
of  trains  on  the  route  between  Rochester  and  Batavia. 

The  cause  was  tried  at  the  Genesee  Circuit,  in  November,  1858, 
before  Mr.  Justice  Davis  and  a  jury.  It  appeared  from  the  evi- 
dence that  on  the  evening  of  the  9th  of  October,  1857,  the  plaintiff 
was  a  passenger  on  a  train  of  cars  of  the  defendant's  passing  west 
from  Rochester  through  Bergen,  between  Rochester  and  Batavia. 
He  occupied  a  seat  in  the  second  passenger  car,  near  the  centre,  and 
upon  the  south  side.  Upon  reaching  Bergen  the  train  was  run  on 
a  switch,  where  it  remained  fifteen  minutes  waiting  for  a  train  due 
there  from  the  west.  It  then  started  west,  and  had  proceeded  but  a 
short  distance  when  the  train  from  the  west  was  discovered  coming 


LIABILITY   FOR    INJURIES. 

at  the  speed  of  about  twenty-five  miles  an  hour.     The  engine 
tached  to  the  train  on  which  the  plaintiff  was,  was  reversed,  but 
not  in  time  to  enable  it  to  be  backed  wholly  down  on  the  switch, 
and  avoid  a  collision.     The  collision  occurred  driving  t 
one  of  the  trains  from  forty  to  sixty  rods  over  the  ties,  killing  at 
least  one  man  on  the  down  train,  jamming  up  the  train  going  v. 
and  breaking  off  some  of  the  platforms  of  its  cars. 

The  plaintiff  had  remained  in  his  seat  all  the  time  the  train  was 
at  Bergen.  He  sat  facing  the  engine,  by  a  window  that  was  open. 
When  his  train  stopped,  and  commenced  backing  down,  he  looked 
out  of  the  window  and  saw  the  approaching  train,  and  men  jumping 
from  the  cars.  He  left  his  seat,  and  hurried  to  the  forward  door  of 
the  car  as  fast  as  he  could  to  escape.  As  he  opened  the  door,  and 
set  his  right  foot  on  the  platform,  the  collision  occurred.  He  was 
thrown  forward  and  partially  stunned ;  he  tried  to  get  up,  but  could 
not  use  his  right  leg;  it  was  broken  in  four  places  below  the  knee, 
and  his  ankle  and  knee  were  bruised.  ..... 

The  car  in  which  the  plaintiff  was  seated  at  the  time  of  the  acci- 
dent was  about  two-thirds  full  of  passengers.  There  seems  not  to 
have  been  an  unusual  commotion  in  this  car  at  the  time  of  the  col- 
lision, and  those  who  remained  in  their  seats  were  uninjured. 

•  •••••••••••a 

Wright,  J.  It  is  not  now  claimed,  as  it  was  on  the  motion  for  a 
nonsuit,  that  the  evidence  failed  to  show  negligence  on  the  part  of 
the  defendants.  Indeed,  a  grosser  case  of  careless  conduct  is  seldom 
presented  to  a  court  and  jury.  The  train  in  which  the  plaintiff  was 
a  passenger  had  been  run  on  the  switch  at  Bergen,  to  await  a  train 
from  the  west  which  was  due  there.  After  waiting  some  fifteen 
minutes  the  train  was  irregularly  started,  the  conductor  getting  on 
the  engine.  It  was  a  dark  and  foggy  night.  The  train  had  pro- 
ceeded some  forty  rods  when  the  western  train  was  seen  approach- 
ing at  a  rate  of  speed  of  about  twenty-five  miles  to  the  hour.  An 
effort  was  made,  by  breaking  up  and  reversing  the  engine,  to  get 
the  up  train  back  on  the  switch,  but  before  this  could  be  effected  a 
collision  of  the  trains  occurred.  The  case  then  was,  that,  on  a  dark 
and  foggy  night,  trains  of  the  defendants  running  in  opposite  direc- 
tions, out  of  time,  and  one  of  them,  at  least,  at  an  unusual  rate  of 
speed,  near  a  station,  run  into  each  other,  occasioning  destruction 
of  property  and  perilling  the  lives  of  the  passengers.  No  casualty 
can  occur  on  a  railroad  which  manifests  grosser  carelessness  than  a 
collision  of  trains  which  are  running  towards  each  other,  out  oi 
time,  and  at  a  rate  of  speed  which  prevents  their  being  stopped  in 
season.     And  that  was  just  this  case. 

But  it  is  insisted  that,  although  the  defendants'  negli  caused 

the  injury  complained  of,  the  plaintiff  .should  have  been  nonsui 
because  his  careless,  conduct  contributed  to  produce  it.     The  mis- 
conduct alluded  to  is,  that,  upon  seeing  the  approaching  train  and 


998  CARRIERS   OF   PASSENGERS. 

men  jumping  from  other  cars  to  avoid  the  impending  danger,  he  left 
his  seat  and  rushed  to  the  forward  door  of  the  car  with  the  view  of 
escaping  himself,  and  had  stepped  one  foot  upon  the  platform  at  the 
instant  of  the  collision.  This,  it  is  said,  was  such  negligence  as  to 
have  required  the  court  to  nonsuit  the  plaintiff.  That  is,  as  a 
matter  of  law,  a  passenger  in  a  railroad  car,  who  sees  that  he  is 
placed  in  peril  by  the  culpable  conduct  of  the  managers  of  the  road, 
and  judges  correctly  that  a  collision  is  inevitable,  is  guilty  of  a 
wrong  if  he  does  not  control  the  instinct  of  self-preservation,  and 
sit  still,  and  take  the  chances  of  safety.  This  is  not  the  law.  See- 
ing the  danger  in  which  he  was  placed,  the  plaintiff  was  justifiable 
in  seeking  to  escape  injury  by  leaving  the  car.  His  act  was  not  the 
result  of  a  rash  apprehension  of  danger  that  did  not  exist.  By  the 
merest  chance,  the  passengers  in  the  same  car  with  him,  and  who 
did  not,  like  him,  see  the  approaching  collision,  and  who  retained 
their  seats,  escaped  uninjured.  Although  doubtless  much  excited, 
I  do  not  think  even  that  there  was  an  error  of  judgment  as  to  the 
course  pursued  to  secure  safety.  A  moment  of  time  earlier  would 
have  enabled  him  to  leap  from  the  car,  thus  affording  a  probable 
chance  of  escape.  But  if  he  misjudged  in  this  respect,  the  circum- 
stances did  not,  as  matter  of  law,  charge  him  with  negligence,  or 
want  of  ordinary  prudence.  Seeing  the  approaching  train,  and  that 
a  collision,  with  its  consequences,  was  inevitable,  it  was  not  the 
dictate  of  prudence  to  have  deliberately  kept  his  seat  without  an 
effort  at  self-preservation.  There  is  no  man,  under  the  circum- 
stances, retaining  his  senses  and  acting  with  ordinary  prudence, 
that  would  not  have  exerted  himself  in  some  way  to  escape  the  great 
peril.  It  was  not  to  invite,  but  to  escape  injury  that  he  left  his 
seat,  and  rushed  to  the  door  of  the  car;  and  an  instant  of  time  more 
would  have  enabled  him  to  effect  his  purpose.  That  other  passen- 
gers, who  neither  saw  or  had  notice  of  the  impending  danger, 
remained  in  their  seats,  and,  by  chance,  were  uninjured,  is  no  evi- 
dence that  they  judged  rationally,  or  judged  at  all,  as  to  what 
prudence  required,  or  that  the  plaintiff  misjudged,  and  acted  rashly. 
At  all  events,  it  was  for  the  jury,  and  not  the  court,  to  say  whether 
the  plaintiff's  conduct,  in  view  of  the  circumstances,  was  rash  or 
imprudent,  or  amounted  to  negligence. 

The  court  was  requested  to  charge  the  jury,  that  as  the  plaintiff 
was  injured  on  the  platform  of  the  car,  in  violation  of  the  printed 
regulations  of  the  company,  he  was  not  entitled  to  recover.  This 
was  properly  refused.  The  statute  exempts  a  railroad  company 
from  liability  to  a  passenger  who  shall  be  injured  while  on  the 
platform  of  a  car,  &c,  in  violation  of  the  printed  regulations  of  the 
company  posted  up  at  the  time  in  a  conspicuous  place  inside  of  its 
passenger  cars  then  in  the  train;  provided  the  company  at  the  time 
furnished  room  inside  its  passenger  cars  sufficient  for  the  proper 
accommodation  of  the   passengers.     Laws  of  1850,  ch.    140,  §  46. 


LIABILITY    FOR   INJURIES.  999 

There  was,  in  this  case,  a  printed  regulation,  pursuant  to  thia 
statute,  posted  in  a  conspicuous  place  inside  the  car,  prohibiting 
passengers  from  standing  or  riding  on  the  platform  of  any  car.  But 
neither  the  statute  nor  the  regulation  has  any  application  to  a  c 
like  the  present  one.  The  plaintiff  was  not  standing  or  riding  on 
the  platform  at  the  time  of  the  collision,  but  was  hurrying  as  fast 
as  he  could  to  leave  the  car,  in  order  to  escape  an  imminent  peril. 
The  statute  was  intended  to  prevent  the  imprudent  act  of  standing 
or  riding  on  the  platform,  but  not  to  absolve  railroad  companies 
from  responsibility  for  every  injury  which  might  happen  at  that 
place,  when  a  passenger  is  passing  over  it,  while  justifiably  enter- 
ing or  leaving  the  cars. 

I  am  of  the  opinion  that  the  judgment  of  the   Supreme  Court 
should  be  affirmed. 


WAITE   v.   NORTHEASTERN   R.    CO. 
Queen's  Bench.     E.  B.  &  E.  719.     1858. 

Action  by  Alexander  Waite,   the  younger,  an   infant,  by  Alex- 
ander Waite,   his  next  friend. 

On  the  trial,  before  Martin,  B. ,  at  the  last  Spring  Assizes  for 
Northumberland,  it  appeared  that  defendants  had  the  management 
of  a  railway  from  Tweedmouth  to  Kelso;  and  that,  on  1st  January, 
1857,  plaintiff,  an  infant  of  the  age  of  five  years  or  thereabouts, 
accompanied  Mrs.  Park,  his  grandmother,  to  the  Velvet  Hall 
Station,  one  of  the  stations  on  the  Tweedmouth  and  Kelso  Railway, 
for  the  purpose  of  proceeding  together  to  Berwick-upon-Tweed  by 
the  10.51  a.m.  train.  The  plaintiff  and  Airs.  Park  arrived  at  the 
Velvet  Hall  Station  at  10.30.  Mrs.  Park  bought  of  the  station- 
master  a  ticket  for  herself  and  a  half-ticket  for  plaintiff,  which 
entitled  them  to  be  carried  to  the  Tweedmouth  Station  near  Berwick 
by  the  10.51  train.  The  platform  for  the  departure  of  passengers 
going  from  Velvet  Hall  Station  to  Tweedmoutli  was  on  the  sidi 
the  railroad  opposite  to  the  ticket-office;  and  it  was  necessary  for 
such  passengers  to  cross  the  railway  on  a  level  to  get  to  that  plat- 
form. The  station-master,  in  giving  out  the  tickets,  informed  Mi-. 
Park  that  the  train  by  which  she  and  plaintiff  were  to  go  to  Tweed- 
mouth would  not  be  there  for  a  quarter  of  an  hour:  the  station- 
master  saw  Mrs.  Park  and  plaintiff  go,  after  having  got  their 
tickets,  and  sit  down  by  the  fire.  The  station-master,  who  was  the 
only  person  in  charge  of  the  station,  after  giving  out  the 
tickets,  immediately  left  the  ticket-offieo  and  wenl  to  the  em 
the  station-yard  to  superintend  the  unloading  of  some  and 


1000  CARRIERS   OF    PASSENGERS. 

returned  in  seven  or  eight  minutes,  which  was  not  until  after  the 
injuries  which  are  the  cause  of  the  present  action  had  been  sus- 
tained. While  so  engaged,  the  station-master  was  unable,  owing 
to  the  position  in  which  he  was,  to  see  the  ticket-office  or  the  plat- 
form. Neither  could  he  see  along  the  line  towards  Tweedmouth; 
but  could  see  along  the  line  towards  Kelso.  Any  train,  as  it 
approached  the  Velvet  Hall  Station  from  Kelso,  could  be  seen  by 
any  one  on  the  platform  for  a  considerable  distance:  the  station- 
master  generally  went  into  the  room  and  told  the  passengers  to 
cross  when  the  train  was  in  sight;  and  had  done  so  to  Mrs.  Park 
when  she  was  there,  she  having  been  frequently  in  the  habit  of 
going  by  that  train  to  Tweedmouth.  The  station-master  did  not 
warn  plaintiff  or  Mrs.  Park  against  crossing  the  line,  or  inform 
them  that  another  train  was  expected  to  pass  the  station  before  the 
arrival  of  their  train.  Nor  were  any  means  adopted,  by  locking 
the  door  of  the  ticket-office,  or  otherwise,  to  prevent  the  plaintiff 
or  Mrs.  Park  crossing  the  line  at  any  time ;  nor  was  there  any  clock 
at  the  station.  P>efore  the  passenger  train  for  which  the  plaintiff 
and  Mrs.  Park  had  taken  tickets  arrived  at  the  station,  a  goods 
train  coining  from  Kelso,  with  a  tender  before  the  engine,  passed 
the  Velvet  Hall  Station,  going  towards  Tweedmouth;  Mrs.  Park  and 
the  plaintiff  were  struck  by  it  as  they  were  crossing  the  line  to  go 
to  the  platform  already  mentioned.  Mrs.  Park  was  killed:  and 
plaintiff  was  severely  injured;  and  for  that  injury  the  present 
action  was  brought.  The  goods  train  was  not  a  train  which 
stopped  at  the  station,  and  passed  the  station  at  its  usual  pace  of 
about  twenty  miles  an  hour.  No  one  saw  Mrs.  Park  or  plaintiff  in 
the  act  of  crossing  the  railway;  and  neither  the  station-master  nor 
any  one  on  the  goods  train  knew  that  the  injuries  had  been  sustained 
until  after  the  goods  train  had  passed  the  station. 

The  jury,  in  answer  to  questions  put  to  them  by  the  learned  judge, 
found  that  defendants  were  guilty  of  negligence,  and  that  Mrs. 
Park  was  also  guilty  of  negligence  which  contributed  to  the  acci- 
dent; and  they  assessed  the  damages  at  £20.  There  was  no  negli- 
gence, nor  was  any  suggested  on  the  part  of  the  infant  plaintiff. 
The  learned  judge  directed  a  verdict  for  the  plaintiff  for  £20,  with 
leave  to  the  defendants  to  move  to  enter  a  verdict  for  them  or  for 
a  nonsuit. 

Lord  Campbell,  C.  J.  In  this  case  we  think  that  the  rule  ought 
to  be  made  absolute  for  entering  a  verdict  for  the  defendants,  or  for 
a  nonsuit.  The  jury  must  be  taken  to  have  found  that  Mrs.  Park, 
the  grandmother  of  the  infant  plaintiff,  in  whose  care  he  was  when 
the  accident  happened,  was  guilty  of  negligence  without  which  the 
accident  would  not  have  happened;  and  that,  notwithstanding  the 
negligence  of  the  defendants,  if  she  had  acted  upon  this  occasion 
with  ordinary  caution  and  prudence,  neither  she  herself  nor  the 
infant  would  have  suffered.     Under   such   circumstances,  had  she 


LIABILITY    FOR   INJURIES.  1001 

survived,  she  could  not  have  maintained  any  action  against  the 
company;  and  we  think  that  the  infant  is  so  identified  with  her  ih.it 
the  action  in  his  name  cannot  be  maintained.  The  relation 
master  and  servant  certainly  did  not  subsist  between  the  grandchild 
and  the  grandmother;  and  she  cannot,  in  any  sense,  be  considered 
his  agent:  but  we  think  that  the  defendants,  in  furnishing  the 
ticket  to  the  one  and  the  half  ticket  for  the  other,  did  not  incur  a 
greater  liability  towards  the  grandchild  than  towards  the  grand- 
mother, and  that  she,  the  contracting  party,  must  be  implied  to  have 
promised  that  ordinary  care  should  be  taken  of  the  grandchild. 

We  do  not  consider  it  necessary  to  offer  any  opinion  as  to  the 
recent  cases  in  which  passengers  by  coaches  or  by  ships  have 
brought  actions  for  damage  suffered  from  the  negligent  management 
of  other  coaches  and  ships,  there  having  been  negligence  in  the 
management  of  the  coaches  and  ships  by  which  they  were  travelling, 
as,  at  all  events,  a  complete  identification  seems  to  us  to  be  con- 
stituted  between  the  plaintiff  and  the  party  whose  negligence  con- 
tributed to  the  damage  which  is  the  alleged  cause  of  action,  in  the 
same  manner  as  if  the  plaintiff  had  been  a  baby  only  a  few  days 
old,  to  be  carried  in  a  nurse's  arms. 

Rule  absolute. 

In  the  Exchequer  Chamber. 

The  plaintiff  having  appealed  against  the  above  decision,  the  case 
was  now  argued. 

Cockburn,  C.  J.  I  am  of  opinion  that  the  judgment  of  the 
Court  of  Queen's  Bench  ought  to  be  affirmed.  I  put  the  case  on 
this  ground :  that,  when  a  child  of  such  tender  and  imbecile  age  is 
brought  to  a  railway  station  or  to  any  conveyance,  for  the  purpose 
of  being  conveyed,  and  is  wholly  unable  to  take  care  of  itself,  the 
contract  of  conveyance  is  on  the  implied  condition  that  the  child  is 
to  be  conveyed  subject  to  due  and  proper  care  on  the  part  of  the 
person  having  it  in  charge.  Such  care  not  being  used,  where  the 
child  has  no  natural  capacity  to  judge  of  the  surrounding  circum- 
stances, a  child  might  get  into  serious  danger  from  a  state  of  things 
which  would  produce  no  disastrous  consequences  to  an  adult  capable 
of  taking  care  of  himself.  Here  the  child  was  under  the  charge  of 
his  grandmother;  and  the  company  must  be  taken  to  have  received 
the  child  as  under  her  control  and  subject  to  her  management.  The 
plea  and  the  finding  show  that  the  negligence  of  the  defendants  con- 
tributed partially  to  the  damage;  but  that  the  negligence  of  the 
person  in  whose  charge  the  child  was,  and  with  reference  to  whom 
the  contract  of  conveyance  was  made,  also  contributed  partially. 
There  is  not  therefore  that  negligence  on  the  part  of  the  defendants 
which  is  necessary  to  support  the  action. 

Pollock,  C.  B.  I  entirely  agree.  The  shortest  way  of  putting 
Mr.  Mellish's  argument  is  that  this  is  not  a  mere  case  of  simple 


1002  CARRIERS   OF   PASSENGERS. 

wrong,  but  one  arising  from  the  contract  of  the  grandmother  on  the 
part  of  the  plaintiff,  who  must  avail  himself  of  that  contract,  with- 
out which  he  cannot  recover.  There  really  is  no  difference  between 
the  case  of  a  person  of  tender  years  under  the  care  of  another  and  a 
valuable  chattel  committed  to  the  care  of  an  individual,  or  even  not 
committed  to  such  care.  The  action  cannot  be  maintained,  unless 
it  can  be  maintained  by  the  person  having  the  apparent  possession, 
even  though  the  child  or  the  chattel  was  not  regularly  put  into  the 
possession  of  the  person,  as,  for  instance,  though  the  party  taking 
charge  of  the  child  had  done  so  without  the  father's  consent;  that 
circumstance  would  make  no  difference  as  to  the  question  of  the 
child's  right.  That  is  my  reason  for  pressing  this  argument  of  Mr. 
Mellish,  as  it  meets  every  possible  view  of  the  case. 

Williams,  J.  I  am  entirely  of  the  same  opinion.  The  view  of 
the  jury  was  that  the  accident  would  not  have  occurred  but  for  the 
negligence  of  the  graudmother.  There  was  here,  as  it  seems  to  me, 
from  the  particular  circumstances  of  the  case,  an  identification  of 
the  plaintiff  with  the  grandmother,  whose  negligence  is  therefore  an 
answer  to  the  action.  At  the  same  time,  I  do  not  mean  to  express 
any  doubt  that,  generally,  where  a  child  is  of  such  tender  years  as 
here,  and  is  carried  about  by  any  person  having  it  in  charge,  the 
rule  as  to  joint  negligence  of  plaintiff  and  defendant  applies.  The 
person  who  has  the  charge  of  the  child  is  identified  with  the  child. 
If  a  father  drives  a  carriage,  in  which  his  infant  child  is,  in  such 
a  way  that  he  incurs  an  accident,  which  by  the  exercise  of  reason- 
able care  he  might  have  avoided,  it  would  be  strange  to  say  that, 
though  he  himself  could  not  maintain  an  action,  the  child  could. 
So,  if  the  child  be  in  the  arms  of  a  person  who  does  not  choose  to 
get  out  of  the  way  of  a  train.  But  it  is  unnecessary  to  insist  on 
this  general  ground :  because,  on  the  mere  narrow  view  of  the  plain- 
tiff's right  in  this  case,  the  defence  must  prevail. 

Crowder,  J.  I  am  of  the  same  opinion,  on  the  grounds  given  in 
the  judgment  delivered  in  the  Court  of  Queen's  Bench.  The  case  is 
the  same  as  if  the  child  had  been  in  the  mother's  arms.  There  is 
an  identification  such  that  the  negligence  of  the  grandmother  de- 
prives the  child  of  the  right  of  action.  Now  the  finding  of  the  jury 
would  clearly  have  prevented  the  grandmother  from  recovering:  it 
therefore  has  the  same  effect  in  respect  of  an  action  by  the  child. 
It  would  be  monstrous  and  absurd  if  there  could  be  a  distinction. 

Bramwell,  B.  I  am  of  the  same  opinion.  In  form  the  action  is 
for  a  wrong;  but  it  is  in  fact  for  a  breach  of  duty  created  by  con- 
tract. It  is  alleged  that  the  plaintiff  was  lawfully  on  the  railway. 
That  could  be  so  only  on  the  supposition  that  he  had  become  a  pas- 
senger through  the  instrumentality  of  himself  or  another.  There 
must  be  a  contract  or  duty.  It  is  impossible  here  to  say  that  the 
company  contracted  any  other  duty  towards  the  infant,  thus  accom- 
panied, than  they  would  have  contracted  towards  an  adult,  or  that 


LIABILITY    FOR   DELAY.  1(1 

they  were  responsible  for  what  would  have  occasioned  no  mischief 
but  for  the  negligence  of  a  person  having  the  custody  of  the  plain- 
tiff. That  would  be  an  absurdity:  and  we  should  have  to  hold  that, 
where  a  chattel  is  injured  partly  through  the  negligence  of  the  party 
having  charge  of  it,  sucli  person  could  maintain  no  action,  but  that 
the  owner,  if  a  different  person,  could.  The  case  appears  even  more 
distinct  upon  the  pleadings.  The  first  count  charges  that  the  plain- 
tiff was  lawfully  upon  and  crossing  the  railway;  thi  nd  plea 
denies  this,  and  states  that  the  plaintiff  was  under  the  direction 
and  control  of  a  person  who,  with  the  plaintiff,  was  wrongfully  <>u 
the  railway;  and  the  verdict  shows  this  plea  to  be  true.  'I 
count  states  also  that  the  plaintiff  was  lawfully  on  the  railway;  and 
it  is  similarly  answered. 

Watson,  B.  I  am  of  the  same  opinion.  The  plaintiff  is  a  child 
of  an  age  at  which  he  is  incapable  of  exercising  proper  care  for 
himself.  The  charge  against  the  company  is  that  they  did  not  give 
proper  warning  to  the  grandmother;  and  all  the  duties  which  arose 
towards  the  child  were  with  reference  to  it  as  being  under  the  charge 
of  the  grandmother;  and,  as  my  brother  Williams  says,  the  case  is 
the  same  as  if  the  plaintiff  had  been  a  child  in  arms.  Many  other 
cases  have  been  put  and  discussed  by  Mr.  Manisty;  but  these  we 

need  not  now  examine. 

Judgment  affirmed.1 


5.    LIABILITY  FOR  DELAY. 

SEARS  v.   EASTERN  R.    CO. 

14  Allen  (Mass.),  433.     1867. 

Action  containing  one  count  in  contract  and  one  in  tort.  Each 
count  alleged  that  the  defendants  were  common  carriers  of  passen- 
gers between  Boston  and  Lynn,  and  that  on  the  loth  of  September, 
1865,  the  plaintiff  was  a  resident  of  Nahant,  near  Lynn,  and  the 
defendants  before  then  publicly  undertook  and  contracted  with  tin- 
public  to  run  a  train  for  the  carriage  of  passengers  from  Boston  to 
Lynn  at  nine  and  one  half  o'clock  in  the  evening  each  week-day, 
Wednesdays  and  Saturdays  excepted;  and  the  plaintiff,  relying  on 
said  contract  and  undertaking,  purchased  of  the  defendants  a  ticket 
entitling  him  to  carriage  upon  their  cars  between  Boston  and  Lynn. 
and  paid  therefor  twenty-five  cents  or  thereabouts,  and  on  a  certain 

i  The  passenger  is  not  so  far  identified  with  the  carrier  that  negligi  Dee  of  the  eti 
rier  will  be  imputed  to  him  in  an  action  againsl  a  third  person  foi  an  accident  du« .to 

the  negligence  of  such  third  person  causing  him  injury.     See  Little  r.  Hackett,  no 
U.  S.  366.     (1886.) 


1004  CAKRIERS    OF   PASSENGERS. 

week-day  thereafter,  neither  Wednesday  nor  Saturday,  namely,  on 
the  15th  of  said  September,  presented  himself  on  or  before  the  hour 
of  nine  and  a  half  o'clock  in  the  evening  at  the  defendants'  station 
in  Boston  and  offered  and  attempted  to  take  the  train  undertaken 
to  be  run  at  that  hour,  as  a  passenger,  but  the  defendants  negli- 
gently and  wilfully  omitted  to  run  the  said  train  at  that  hour,  or 
any  train  for  Lynn  till  several  hours  thereafter;  wherefore  the  plain- 
tiff was  compelled  to  hire  a  livery  carriage  and  to  ride  therein  to 
Lynn  by  night,  and  was  much  disturbed  and  inconvenienced. 

The  following  facts  were  agreed  in  the  Superior  Court:  The  de- 
fendants were  common  carriers,  as  alleged,  and  inserted  in  the 
"Boston  Daily  Advertiser,"  "Post,"  and  "Courier,"  from  the  15th 
day  of  August  till  the  15th  day  of  September  an  advertisement  an- 
nouncing the  hours  at  which  trains  would  leave  Boston  for  various 
places,  and  among  others  that  a  train  would  leave  for  Lynn  at 
9.30  p.  m.  except  Wednesdays,  when  it  would  leave  at  11.15,  and 
Saturdays,  when  it  would  leave  at  10.30. 

The  plaintiff,  a  resident  of  Nahant,  consulted  one  of  the  above 
papers,  about  the  9th  of  September,  1865,  for  the  purpose  of  ascer- 
taining the  time  when  the  latest  night  train  would  start  from 
Boston  for  Lynn  on  the  15th,  in  order  to  take  the  train  on  that  day, 
and  saw  the  advertisement  referred  to.  On  the  15th,  which  was  on 
Friday,  he  came  to  Boston  from  Lynn  in  a  forenoon  train,  and  in 
the  evening,  shortly  after  nine  o'clock,  presented  himself  at  the 
defendants'  station  in  Boston  for  the  purpose  of  taking  the  9.30 
train  for  Lynn,  having  with  him  a  ticket  which,  previously  to  Sep- 
tember 9th,  he  had  purchased  in  a  package  of  five.  This  ticket 
specified  no  particular  train,  but  purported  to  be  good  for  one  pas- 
sage in  the  cars  between  Boston  and  Lynn  during  the  year  1865. 
He  learned  that  this  train  had  been  postponed  to  11.15,  on  account 
of  an  exhibition,  and  thereupon  hired  a  buggy  and  drove  to  Lynn, 
arriving  there  soon  after  10.30.  He  had  seen  no  notice  of  any  post- 
ponement of  this  train.  He  once,  in  1864,  observed  a  notice  of  post- 
ponement, and  heard  that  the  defendants  sometimes  postponed  their 
late  trains. 

For  several  years  before  1865,  the  defendants'  superintendent  had 
been  accustomed  occasionally  to  postpone  this  train,  as  often  as  from 
once  to  three  times  a  month,  for  the  purpose  of  allowing  the  public 
to  attend  places  of  amusement  and  instruction,  and  also  upon  holi- 
days and  other  public  occasions  in  Boston;  giving  notice  thereof  by 
handbills  posted  in  the  defendants'  cars  and  stations.  On  the  13th 
of  September,  1865,  in  pursuance  of  this  custom,  he  decided  to  post- 
pone this  train  for  September  15th  till  11.15,  and  on  the  same  day 
caused  notice  thereof  to  be  printed  and  posted  in  the  usual  manner. 
The  train  was  so  postponed,  and  left  Boston  at  11.15,  arriving  at 
Lynn  at  11.45. 

The  defendants  offered  to  prove,  if  competent,  that  this  usage  oi 


LIABILITY    FOR    DELAY.  1005 

detaining  the  train  was  generally  known  to  the  people  using  the 
Eastern  Railroad,  and  that  the  number  of  persons  generallygi 
by  the  postponed  train  was  larger  than  generally  went  by  the  9.30 
train,  and  was  larger  on  the  evening  in  question;  but  at  the  station 
in  Boston  there  were  persons  complaining  of  the  postponement  of 
the  train,  and  leaving  the  station. 

It  was  agreed  that,  if  on  these  facts  the  plaintiff  was  entitled  to 
recover,  judgment  should  be  entered  in  his  favor  for  ten  dollars, 
without  costs.  Judgment  was  rendered  for  the  defendants,  and  the 
plaintiff  appealed  to  this  court. 

Chapman,  J.  If  this  action  can  be  maintained,  it  nmst  be  for 
the  breach  of  the  contract  which  the  defendants  made  with  the  plain- 
tiff. He  had  purchased  a  package  of  tickets  entitling  him  t 
passage  in  their  cars  for  each  ticket  from  Boston  to  Lynn.  This 
constituted  a  contract  between  parties.  Cheney  v.  Boston  &  Fall 
River  Railroad,  11  Met.  121;  Boston  &  Lowell  Railroad  v.  Proctor, 
1  Allen,  267;  Najac  v.  Boston  &  Lowell  Railroad,  7  Allen,  329. 
The  principal  question  in  this  case  is,  what  are  the  terms  of 
the  contract?  The  ticket  does  not  express  all  of  them.  A  public 
advertisement  of  the  times  when  their  trains  run  enters  into  the 
contract,  and  forms  a  part  of  it.  Denton  v.  Great  Northern  Rail- 
way, 5  El.  &  Bl.  860.  It  is  an  offer  which,  when  once  publicly 
made,  becomes  binding,  if  accepted  before  it  is  retracted.  Boston 
&  Maine  Railroad  v.  Bartlett,  3  Cush.  227.  Advertisements  offering 
rewards  are  illustrations  of  this  method  of  making  contracts.  But 
it  would  be  unreasonable  to  hold  that  advertisements  as  to  the  time 
of  running  trains,  when  once  made,  are  irrevocable.  Bailroad  cor- 
porations find  it  necessary  to  vary  the  time  of  running  their  trains, 
and  they  have  a  right,  under  reasonable  limitations,  to  make  this 
variation,  even  as  against  those  who  have  purchased  tickets.  This 
reserved  right  enters  into  the  contract,  and  forms  a  part  of  it.  The 
defendants  had  such  a  right  in  this  case. 

But  if  the  time  is  varied,  and  the  train  fails  to  go  at  the  appointed 
time,  for  the  mere  convenience  of  the  company  or  a  portion  of  their 
expected  passengers,  a  person  who  presents  himself  at  the  advertised 
hour,  and  demands  a  passage,  is  not  bound  by  the  change  unless  he 
has  had  reasonable  notice  of  it.  The  defendants  acted  upon  this 
view  of  their  duty,  and  gave  certain  notices.  Their  trains  had  been 
advertised  to  go  from  Boston  to  Lynn  at  <).:;<)  p.  m.,  and  the  plaintiff 
presented  himself,  with  his  ticket,  at  the  station  to  take  the  train; 
but  was  there  informed  that  it  was  postponed  to  11.15.  The  post- 
ponement had  been  made  for  the  accommodation  of  passengers  who 
desired  to  remain  in  Boston  to  attend  places  of  amusement.  Certain 
notices  of  the  change  had  been  given;  but  none  of  them  had  reached 
the  plaintiff.  They  were  printed  handbills  posted  up  in  the  cara 
and  stations  on  the  day  of  the  change,  and  also  a  day  or  two  before. 
Though  he  rode  in  one  of  the  morning  cars  from  Lynn  to  Boston,  he 


1006  CARRIERS    OF    PASSENGERS. 

did  not  see  the  notice,  and  no  legal  presumption  of  notice  to  him 
arises  from  the  fact  of  its  being  posted  up.  Brown  v.  Eastern  Rail- 
road, 11  Cush.  101;  Malone  v.  Boston  &  Worcester  Railroad,  12 
Gray,  388.  The  defendants  published  daily  advertisements  of  their 
regular  trains  in  the  "Boston  Daily  Advertiser,"  "Post,"  and 
"Courier,"  and  the  plaintiff  had  obtained  his  information  as  to  the 
time  of  running  from  one  of  these  papers.  If  they  had  published  a 
notice  of  the  change  in  these  papers,  we  think  he  would  have  been 
bound  by  it.  For  as  they  had  a  right  to  make  changes,  he  would  be 
bound  to  take  reasonable  pains  to  inform  himself  whether  or  not  a 
change  was  made.  So  if  in  their  advertisement  they  had  reserved 
the  right  to  make  occasional  changes  in  the  time  of  running  a  par- 
ticular train,  he  would  have  been  bound  by  the  reservation.  It 
would  have  bound  all  passengers  who  obtained  their  knowledge  of 
the  time-tables  from  either  of  these  sources.  But  it  would  be  con- 
trary to  the  elementary  law  of  contracts  to  hold  that  persons  who 
relied  upon  the  advertisements  in  either  of  those  papers  should  be 
bound  by  a  reservation  of  the  offer,  which  was,  without  their  knowl- 
edge, posted  up  in  the  cars  and  stations.  If  the  defendants  wished 
to  free  themselves  from  their  obligations  to  the  whole  public  to  run 
a  train  as  advertised  they  should  publish  notice  of  the  change  as 
extensively  as  they  published  notice  of  the  regular  trains.  And  as 
to  the  plaintiff,  he  was  not  bound  by  a  notice  published  in  the  cars 
and  stations  which  he  did  not  see.  If  it  had  been  published  in  the 
newspapers  above  mentioned,  where  his  information  had  in  fact  been 
obtained,  and  he  had  neglected  to  look  for  it,  the  fault  would  have 
been  his  own. 

The  evidence  as  to  the  former  usage  of  the  defendants  to  make 
occasional  changes  was  immaterial,  because  the  advertisement  was 
an  express  stipulation  which  superseded  all  customs  that  were  in- 
consistent with  it.  An  express  contract  cannot  be  controlled  or 
varied  by  usage.     Ware  v.  Hay  ward  Rubber  Co.,  3  Allen,  84. 

The  court  are  of  opinion  that  the  defendants,  by  failing  to  give 
such  notice  of  the  change  made  by  them  in  the  time  of  running  their 
train  on  the  evening  referred  to  as  the  plaintiff  was  entitled  to  re- 
ceive, violated  their  contract  with  him,  and  are  liable  in  this  action. 

Judgment  for  the  plaintiff. 


NUNN   v.    GEORGIA  R.    CO. 

71  Ga.  710.     1883. 

Action  of  damages  for  carrying  beyond  destination.     The  opinion 
states  the  case.     The  defendant  had  judgment  below. 

Hall,  J.     The  plaintiff  had  a  season  ticket,  commonly  known  as 


LIABILITY    FOIl    DELAY.  ], 

a  "book,"  which  entitled  him  to  travel  on  the  ears  of  the  defendant 

company  from  Atlanta  to  his  home  at  Clarkston,  — a  point  1"  I 
the  regular  stations  on  the  road  at  Decatur  and   -  Mountain,  at 

which  trains  stopped  to  put  off  and  take  on  passi  w  hen  so  noti- 

fied.    On  the  night  in  cpiestion  he  took  passage  at  Atlanta  for  his 
home,  and  when  he  delivered  the  conductor  his  ticket  In-  inforo 
him  that  he  had  lost  much  sleep  the  night  before,  and  would  prob- 
ably sleep  on  his  journey,  and  requested  him  when  he  reached  bis 
destination,  to  awaken  him  and  put  him  off,  which  the  condu 
promised  to  do.     He  slept  until  be  passed  beyond  Stone  Mountain, 
and  below  there  was  aroused,  and  informed  that  he  had  passed  his 
home.     Here  he  left  the  cars  in  the  night,  and  walked  rapidly  in 
the  dark  a  distance  of  seven  or  eight  miles  to  his  home,  which  he 
reached  between  11  and  12  o'clock.     During  this  walk  he  lab 
under  considerable  mental  anxiety,  on  account  of  the  sil  a  of 

his  wife,  whom  he  had  left  in  the  morning  quite  sick,  and  gone  to 
Atlanta  to  procure  medicine  for  her;  had  obtained  it,  and  then  bad 
it  with  him.  He  reached  home  in  time  to  relieve  her  with  tbe 
medicine  he  carried.  He  suffered  from  considerable  soreness  in 
consequence  of  his  walk,  was  not  able  to  do  full  work,  and  remained 
at  home  next  day,  and  thereby  lost  his  wages,  amounting  to  two 
dollars.  It  did  not  appear  from  the  evidence  that  the  train  was  not 
halted  at  Clarkston  a  sufficient  length  of  time  to  enable  the  plaintiff 
to  get  off,  or  that  the  place  was  not  called  in  the  customary  manner; 
nor  was  it  shown  by  any  regulation  of  the  company  that  it  undertook 
that  the  conductor  at  each  stopping-place  should  go  through  the 
train  and  see  that  every  passenger  was  safely  passed  out  of  the  cars. 
It  was  shown  that  the  conductor,  when  specially  applied  to,  bad  in 
some  instances  performed  this  service  for  passengers.  It  was  in- 
cumbent upon  tbe  plaintiff  to  make  out  his  case,  and  to  show  that 
he  had  been  damaged  by  a  violation  of  his  contract  with  the  com- 
pany. In  the  opinion  of  the  Superior  Court  he  failed  in  this,  and 
on  motion  a  nonsuit  was  awarded  at  the  close  of  the  testimony,  first, 
because  the  proof  failed  to  show  that  it  was  customary  for  the  con- 
ductor to  go  through  the  train  and  wake  up  a  passenger  who  hap- 
pened to  be  asleep.  Secondly,  because  no  breach  of  plaintiff's 
contract  with  the  defendant  was  shown,  or  that  there  was  any  ] 
of  a  failure  to  stop  at  the  designated  point  sufficiently  long  for  the 
plaintiff  to  get  off  the  cars.  Thirdly,  because  it  did  not  satis 
torily  appear  whether  the  loss  of  the  day's  work,  which  was  the 
only  damage  proved,  was  caused  by  the  failure  to  put  plaintiff  off 
at  home,  and  by  the  long  walk  he  took  in  consequence  of  being 
carried  beyond  it,  or  by  other  causes,  which  might  have  contrib 
to  that  result,  such  as  the  loss  of  sleep  on  the  previous  night. 

In  determining  the  propriety  of  this  ruling,  it  will  be  essential  to 
consider  whether  the  conductor's  promise  to  wake  plaintiff  was 
included  in  the  company's  contract  to  transport  him  from  Atlanta  to 


100g  CARRIERS    OF    PASSENGERS. 

Clarkston ;  if  it  was,  and  there  was  any  failure  in  that  respect,  then 
there  was  a  breach  of  the  agreement,  and  he  had  a  right  to  recover 
at  least  nominal  damages;  if  it  was  not,  then  a  failure  in  regard 
thereto  was  damnum  absque  injuria,  his  rights  were  not  violated, 
he   was   not   entitled   to    recover,    and   the   nonsuit    was    properly 

awarded. 

"  The  sale  of  a  ticket  to  a  passenger  is  a  contract  to  carry  him 
according  to  the  reasonable  regulations  of  the  company,  and  he  is 
presumed  also  to  contract  with  reference  to  them."  Pierce  Am. 
Ry.  Law,  491.  It  likewise  seems  a  necessary  implication  from  this 
rule,  that  the  train  should  be  stopped  at  the  point  of  destination  a 
sufficient  length  of  time  to  allow  the  party  to  leave  it  with  safety 
to  his  life  and  person,  51  Ga.  489;  45  Ga.  288 ;  and  if  he  is  carried 
beyond  his  place,  by  no  fault  of  his,  but  by  the  failure  of  the  com- 
pany's agent  to  do  his  duty  in  that  behalf,  he  is  entitled  to  recover 
any  damage  he  may  sustain.     Id. 

It  is  insisted  that  if  not  directly  bound  to  perform  such  acts  as  the 
present,   the  conductor,   as  the  company's  servant,    was  impliedly 
authorized  to  bind  the  company  by  this  promise,  and  his  failure  to 
perform  it  would  render  the  company  liable.     This  is  likened  to  the 
ability  of  the  servant  to  contract  debts  for  the  master,  growing  out 
of  the  peculiar  nature  of  the  business,  and  from  which  authority  is 
necessarily  implied,  in  order  to  carry  out  the  agency.     Wood  Mast. 
and  Serv.  §§  263,  267,  268,  are  cited  to  this  latter  effect.     But  we 
cannot  reach  that  conclusion.     It  was  certainly  not  necessary  to  the 
performance  of  the  ordinary  duties  of  the  conductor  in  putting  pas- 
sengers off  the  train  that  he  should  give  them  any  other  than  the 
customary  warning,  and  opportunity  to  avail  themselves  of  it.     The 
regulations   under   which  he  acted   required  nothing  more  at  the 
hands  of  the  company ;  its  contract  was  made  with  that  view5  and 
any  requirement  in  excess  of  it  would  be  a  departure  from  the  terms 
of  the  contract.     To  this  additional  act  the  company  did  not  assent. 
In  Pennsylvania  R.  Co.  v.  Kilgore,  32  Penn.  St.  294,  it  is  said : 
"  We  do  not  think  it  was  the  duty  of  the  conductor  to  go  through 
the  train  and  see  that  every  person  was  safely  passed  out  of  the 
cars.     It  was  his  duty  to  stop  the  train  sufficiently  long  enough  to 
enable  them  to  get  out  without  damage  to  their  persons  or  their 
lives;  and  if  he  did  not,  he  was  derelict  in  his  duty." 

In  New  Orleans,  Jackson  &  Great  Northern  R.  Co.  v.  Statham, 
42  Miss.  607,  613,  the  Supreme  Court  of  that  State  applied  this 
principle  to  sick  and  impotent  persons.  Shackleford,  C.  J.,  who 
delivered  the  opinion,  declared  that  "railroad  cars  were  not  travel- 
ling hospitals,  nor  their  employees  nurses.  Sick  persons  have  the 
right  to  enter  the  cars  of  a  railroad  company ;  as  common  carriers 
of  passengers,  they  cannot  prevent  their  entering  their  cars.  If 
they  are  incapable  of  taking  care  of  themselves,  they  should  have 
attendants  along  to  care  for  them,  or  to  render  them  such  assistance 


LIABILITY   FOK   DELAY.  K)09 

as  they  may  require  in  the  cars,  and  to  assist  them  from  the  cars  at 
the  point  of  their  destination.     It  is  not  the  duty  of  conductors 
see  to  the  debarkation  of  passengers.    They  should  haye  the  stal 
announced;  they  should  stop  the  trains  sufficiently  long  for  the  pa  - 
sengers  for  each  station  to  get  off.     When  this  is  done  their  duty  to 
the  passengers  is  performed.     All  assistance  that  a  conductor  may 
extend  to  ladies  without  escorts,    or  with  children,  or  to   pel 
who  are  sick,  and  ask  his  assistance  in  getting  on  and  oil'  trains,  is 
purely  a  matter  of  courtesy,  and  not  at  all  incumbent  upon  him  in 
the  line  of  his  public  duty." 

See  also  the  able  and  learned  opinion  of  Hardy,  C.  J.,  in  South- 
ern R.  Co.  v.  Kendrick,  40  Miss.  374,  which  covers  and  effectually 
disposes  of  every  question  considered  here.     These  cases  proceed 
upon  the  reasonable  ground  that  passengers  are  vigilant  to  perform 
their  parts  of  the  undertaking  which  they  set  out  to  accomplish, 
and  which  is  only  to  be  done  by  their  own  exertions.     It  results 
also  from  the  difference  of  the  obligations  of  carriers  of  goods  and 
of  passengers;  in  the  former  case,  the  obligation  is  to  carry   and 
deliver;   in  the  latter,   it  is  simply  to   carry  and  allow  passengers 
sufficient  time  and  opportunity  to  leave  the  vehicle.     Hutch.  Can.. 
§  614;  Thomp.  Car  Pass.  226,  227,  and  citations.     As  to  duty  of 
passengers  to  observe  the  known  and  obvious  rules  of  the  company 
in  entering  and  leaving  cars,  2  Redf.  Am.  Ry.  Cas.,  536,    ">l"  542; 
3  Am.  and  Eng.  R.  Cases,  340. 

How  far  a  custom  npon  the  part  of  conductors,  known,  or  which 
may  be  presumed  to  be  known  to  the  company,  to  assist  unattended 
females  or  children,  or  infirm  persons,  will  modify  these  rules,  we 
do  not  now  decide,  as  there  is  nothing  in  this  case  falling  within 
such  a  principle.  This  was  a  drowsy  man,  travelling  a  distance  of 
ten  miles;  he  made  no  contract  with  the  company  to  have  him 
aroused,  in  case  he  should  be  asleep  when  he  reached  his  destina- 
tion; he  relied  upon  the  courtesy  of  the  conductor  to  do  him  this 
kind  office,  as  it  seems  he  had  on  previous  occasions  done  for  him, 
and  perhaps  for  some  others.  These  exceptional  and  occasional 
instances  afforded  no  evidence  of  a  custom  binding  upon  the  com- 
pany.    The  plaintiff  failed  to  make  out  any  case,  and  there  was  no 

error  in  sustaining  the  motion  for  a  nonsuit. 

Judgment  affirmed. 


1010  CARRIERS   OF   PASSENGERS. 


6.    LIMITATION   OF   LIABILITY. 

EAILWAY   CO.    v.    STEVENS. 
95  U.  S.  655.     1877. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Maine. 

This  was  an  action  on  the  case  for  negligence,  brought  against  the 
Grand  Trunk  Railway  of  Canada,  to  recover  damages  for  injuries 
received  by  Stevens  whilst  a  passenger  in  its  cars.  The  plaintiff, 
being  owner  of  a  patented  car-coupling,  was  negotiating  with  the 
defendant,  at  Portland,  Me. ,  for  its  adoption  and  use  by  the  latter, 
and  was  requested  by  the  defendant  to  go  to  Montreal  to  see  the 
superintendent  of  its  car  department  in  relation  to  the  matter,  the 
defendant  offering  to  pay  his  expenses.  The  plaintiff  consented  to 
do  this;  and,  in  pursuance  of  the  arrangement,  he  was  furnished 
with  a  pass  to  carry  him  in  the  defendant's  cars.  This  pass  was  in 
the  usual  form  of  free  passes,  thus,  "Pass  Mr.  Stevens  from  Port- 
land to  Montreal,"  and  signed  by  the  proper  officer.  On  its  back 
was  the  following  printed  indorsement:  — 

"  The  person  accepting  this  free  ticket,  in  consideration  thereof,  assumes 
all  risk  of  all  accidents,  and  expressly  agrees  that  the  company  shall  not  be 
liable,  under  any  circumstances,  whether  of  negligence  by  their  agents  or 
otherwise,  for  any  injury  to  the  person,  or  for  any  loss  or  injury  to  the  prop- 
erty, of  the  passenger  using  the  ticket.  If  presented  by  any  other  person  than 
the  individual  named  therein,  the  conductor  will  take  up  this  ticket  and 
collect  fare." 

The  plaintiff  testified  that  he  put  the  pass  into  his  pocket  without 
looking  at  it;  and  the  jury  found  specially  that  he  did  not  read  the 
indorsement  previous  to  the  accident,  and  did  not  know  what  was 
indorsed  upon  it.  He  had  been  a  railroad  conductor,  however,  and 
had  seen  many  free  passes,  some  with  a  statement  on  the  back, 
others  without. 

During  the  passage  from  Portland  to  Montreal,  the  car  in  which 
the  plaintiff  was  riding  ran  off  the  track  and  was  precipitated  down 
an  embankment,  and  he  was  much  injured.  The  direct  cause  of  the 
accident,  according  to  the  proof,  was  that,  at  the  place  where  it 
occurred,  and  for  some  considerable  distance  in  each  direction,  the 
bolts  had  been  broken  off  the  fish-plates  which  hold  the  ends  of  the 
rails  together,  so  that  many  of  these  plates  had  fallen  off  on  each 
side,  leaving  the  rails  without  lateral  support.  The  consequence 
was  that  the  track  spread,  and  the  cars  ran  off,  as  before  stated. 


LIMITATLON    OF   LIABILITY.  10H 

There  was  also  evidence  that  at  this  place  the  track  was  made  of  old 
rails  patched  up. 

The  above  facts  appeared  on  the  plaintiff's  case,  and  the  defend- 
ant offered  no  evidence,  but  requested  the  court  to  instruct  the  jury 
as  follows :  — 

First,  That  if  the  plaintiff ,  at  the  time  of  sustaining  the  injury, 
was  travelling  under  and  by  virtue  of  the  pass  produced  in  evidence 
in  the  case,  he  was  travelling  upon  the  conditions  annexed  to  it. 

Second,  That  if  the  plaintiff,  at  the  time  of  sustaining  the  injury, 
was  travelling  under  and  by  virtue  of  the  pass  produced  in  evidence 
in  the  case,  the  defendant  is  not  liable. 

Third,  That  if  the  plaintiff,  at  the  time  of  sustaining  the  injury, 
was  travelling  as  a  free  passenger,  the  defendant  is  not  liable. 

Fourth,  That  if  the  plaintiff,  at  the  time  of  sustaining  the  injury, 
was  travelling  as  a  gratuitous  passenger,  without  any  consideration 
to  the  defendant  for  his  transportation ,  the  defendant  is  not  liable. 

The  court  refused  these  instructions,  as  inapplicable  to  the  evi 
dence  produced,  and  instructed  the  jury  as  follows,  viz. :  — 

That  if  the  jury  find  that,  in  May,  1873,  the  plaintiff  was  inter- 
ested in  a  car-coupling,  which  had  been  used  on  the  cars  of  the 
defendant  since  December  previous,  and  that  the  officers  of  the 
company  were  desirous  that  the  plaintiff  should  meet  them  at 
Montreal  to  arrange  about  the  use  of  such  couplings  on  their  cars 
by  defendant,  and  -they  agreed  with  him  to  pay  his  expenses  if  he 
would  come  to  Montreal,  and  he  agreed  so  to  do,  and  took  passage 
on  defendant's  cars,  and  was,  by  the  reckless  misconduct  and  negli- 
gence of  the  defendant,  and  without  negligence  on  his  part,  injured 
whilst  thus  a  passenger  in  defendant's  car,  the  defendant  is  not 
exonerated  from  liability  to  plaintiff  for  his  damages  occasioned  by 
such  negligence,  by  reason  of  the  indorsement  upon  the  pass  pro- 
duced in  evidence. 

There  was  a  verdict  and  judgment  for  the  plaintiff.  The  defend- 
ant then  sued  out  this  writ  of  error. 

Mr.   Justice  Bradley.     It   is   evident  that  the  court  below  re- 
garded this  case  as  one  of  carriage  for  hire,  and  not  as  one  of  gratu- 
itous carriage,  and  that  no  sufficient  evidence  to  go  to  the  jury  was 
adduced  to  show  the  contrary;  and,  hence,  that  under  the  ruling  of 
this  court  in  Railroad  Company  v.  Lockwood,  17  Wall.  357,  it  was 
a  case  in  which  the  defendant,  as  a  common  carrier  of  passengers, 
could  not  lawfully  stipulate  for  exemption  from   liability  for  the 
negligence  of  its  servants.     In  taking  this  view  we  think  the  court 
was  correct.     The  transportation  of  the  plaintiff  in  the  defendant  s 
cars,  though  not  paid  for  by  him   in  money,   was   not  a   matter  of 
charity  nor  of  gratuity  in  any  sense.     It  was  by  virtue  of  an  a 
ment,  in  which  the  the  mutual  interest  of  the  parties  was  c< 
It  was  part  of  the  consideration  for  which  the  plaintiff  cons> 
take  the  journey  to  Montreal.    His  expenses  in  making  I  rney 


1012  CARRIERS    OF   PASSENGERS. 

were  to  be  paid  by  the  defendant,  and  of  these  the  expense  of  his 
transportation  was  a  part.     The  giving  him  a  free  pass  did  not  alter 
the  nature  of   the  transaction.     The  pass  was   a  mere   ticket,   or 
voucher,  to  be  shown  to  the  conductors  of  the  train,  as  evidence  of 
his  right  to  be  transported  therein.     It  was  not  evidence   of  any 
contract  by  which  the  plaintiff  was  to  assume  all  the  risk;  and  it 
would  not  have  been  valid  if  it  had  been.     In  this  respect  it  was  a 
stronger  case  than  that  of  Lockwood's.     There  the  pass  was  what 
is  called  a  "drover's  pass,"  and  an  agreement  was  actually  signed, 
declaring  that  the  acceptance  of  the  pass  was  to  be  considered  as  a 
waiver  of  all  claims  for  damages  or  injury  received  on  the  train. 
The  court  rightly  refused ,  therefore,  in  the  present  case,  to  charge 
that  the  plaintiff  was  travelling  upon  the  conditions  indorsed  on  the 
pass,  or  that,  if  he  travelled  on  that  pass,  the  defendant  was  free 
from  liability.      And  the  court  was  equally  right  in  refusing  to 
charge,  that,  if  the  plaintiff  was  a  free  or  gratuitous  passenger,  the 
defendant  was  not  liable.     The  evidence  did  not  sustain  any  such 
hypothesis.      It  was  uncontradicted,    so  far  as   it  referred  to   the 
arrangement  by  virtue  of  which  the  journey  was  undertaken. 

The  charge  actually  given  by  the  court  was  also  free  from  material . 
error.  It  stated  the  law  as  favorably  for  the  defendant  as  the  latter 
had  a  right  to  ask.  If  subject  to  any  criticism,  it  is  in  that  part  in 
which  the  court  supposed  that  the  jury  might  find  that  the  plaintiff 
was  injured  by  the  reckless  misconduct  and  negligence  of  the  de- 
fendant. If  this  degree  of  fault  had  been  necessary  to  sustain  the 
action,  there  might  have  been  some  difficulty  in  deducing  it  from 
the  evidence.  However,  the  condition  of  the  track  where  the  acci- 
dent took  place,  without  any  explanation  of  its  cause,  was  perhaps 
sufficient  even  for  such  an  inference.  If  the  defendant  could  have 
shown  that  the  injury  to  the  rails  was  the  result  of  an  accident  oc- 
curring so  shortly  before  the  passage  of  the  train  as  not  to  give  an 
opportunity  of  ascertaining  its  existence,  it  did  not  do  so,  but  chose 
to  rest  upon  the  evidence  of  the  plaintiff.  In  fact,  however,  negli- 
gence was  all  that  the  plaintiff  was  bound  to  show ;  and  of  this  there 
was  abundant  evidence  to  go  to  the  jury.  On  the  whole,  therefore, 
we  think  that  the  charge  presents  no  sufficient  ground  for  setting 
aside  the  verdict.  The  charge,  if  not  formally  accurate,  was  not 
such  as  to  prejudice  the  defendant. 

It  is  strongly  urged,  however,  that  the  plaintiff,  by  accepting  the 
free  pass  indorsed  as  it  was,  was'  estopped  from  showing  that  he  was 
not  to  take  his  passage  upon  the  terms  therein  expressed;  or,  at 
least,  that  his  acceptance  of  the  pass  should  be  regarded  as  compe- 
tent, if  not  conclusive,  evidence  that  such  a  pass  was  in  the  contem- 
plation of  the  parties  when  the  arrangement  for  his  going  to 
Montreal  was  made.  But  we  have  already  shown  that  the  carrying 
of  the  plaintiff  from  Portland  to  Montreal  was  not  a  mere  gratuity. 
To  call  it  such  would  be  repugnant  to  the  essential  character  of  tne 


LIMITATION    OF    LIABILITY. 

whole  transaction.     There  was  a  consideration  for  it,  both  go< 
valuable.     It  necessarily  follows,  therefore,  that  it  was  a  carrj 
for  hire.     Being  such,  it  was  not  competent  for  the  defendant,  a 
common  carrier,  to  stipulate  for  the  immunity  expressed  on  th<-  b 
of  the   pass.      This  is  a  sufficient  answer  to   the   argument   j 
pounded.     The  defendant,  being,  by  the  very  nature  of   the  trans- 
action,  a  common  carrier  for  hire,  cannot  set  up,  as  against  the 
plaintiff,  who  was  a  passenger  for  hire,  any  such  estoppel  or  agree- 
ment as  that  which  is  insisted  on. 

Since,  therefore,  from  our  view  of  the  case,  it  is  not  necessary  to 
determine  what  would  have  been  the  rights  of  the  parties  if  the 
plaintiff  had  been  a  free  or  gratuitous  passenger,  we  rest  our  d 
upon  Railroad  Company  v.  Lockwood.  supra.  We  have  no  doubt  of 
the  correctness  of  the  conclusion  reached  in  that  case.  We  do  not 
mean  to  imply,  however,  that  we  should  have  come  to  a  different 
conclusion,  had  the  plaintiff  been  a  free  passenger  instead  of  a  pas- 
senger for  hire.  We  are  aware  that  respectable  tribunals  have 
asserted  the  right  to  stipulate  for  exemption  in  such  a  case ;  and  it 
is  often  asked,  with  apparent  confidence,  "May  not  men  make  their 
own  contracts,  or,  in  other  words,  may  not  a  man  do  what  he  will 
with  his  own?"  The  question,  at  first  sight,  seems  a  simple  one. 
But  there  is  a  question  lying  behind  that:  "Can  a  man  call  that 
absolutely  his  own  which  he  holds  as  a  great  public  trust,  by  the 
public  grant,  and  for  the  public  use  as  well  as  his  own  profit?'1 
The  business  of  the  common  carrier,  in  this  country  at  least,  is 
emphatically  a  branch  of  the  public  service;  and  the  conditions  on 
which  the  public  service  shall  be  performed  by  private  enterprise 
are  not  yet  entirely  settled.  We  deem  it  the  safest  plan  not  to 
anticipate  questions  until  they  fairly  arise  and  become  nece> 
for  our  decision.  Judgment  affirmed.1 


BATES  v.    OLD  COLONY   R.    CO. 

147  Mass.  255.     1888. 

Tort  for  personal  injuries  sustained  by  the  plaintiff,  on  Novem- 
ber 4,  1885,  in  an  accident  upon  the  defendant's  railroad  while  lie 
was  riding  in  a  baggage  car.  At  the  trial  in  the  Superior  Court, 
before  Sherman,  J.,  evidence  was  introduced  tending  to  prove  the 

following  facts. 

It  was  conceded  by  the  defendant  that  the  accident  resulted  from 
neo-ligence  on  the  part  of  its  servants,  and  that  the  plaintiff,  if  right- 
fully in  the  car,  was,  at  the  time  of  the  accident,  in  the  exercis. 
due  care.     None  of  the  passenger  ears  m  the  same  tram  with  the 
i  Contra:  Bissell  v.  New  York  Central  Et.  Co.,  -2:.  N.  Y.   1 12.     I    i 


1014  CAKKIERS    OF   PASSENGERS. 


ba^o-age  car  ware  thrown  from  the  track  by  the  accident,  and  no 
person  in  them  was  injured. 

The  plaintiff  was  employed  as  an  express  messenger  by  the  New 
York  &  Boston  Despatch  Express  Company,   which  was  carrying  on 
the  express  business  over  the  road  of  the  defendant  between  South 
Framingham  and  Fitchburg.     On  January  1,  1885,  and  at  the  time 
of  the  accident,  the  contract  between  the  defendant  and  the  express 
company   was,   that  the    defendant   should    transport   the   express 
matter  at  a  specific  price,  and  should  transport  the  messengers  of 
the  express  company  in  its  express  cars  or  baggage  cars  at  season 
ticket  rates,  which  were  less  than  regular  rates  paid  by  the  express 
company  upon  condition  that  the    express    company  and   its   mes- 
sengers should  assume  all  risks  of  accidents  and  injuries  resulting 
therefrom,  and  hold  the  railroad  free  and  discharged  from  all  claims 
and  demands  in  any  way  growing  out  of  any  injuries  received  by 
such  messengers  while  being  thus  transported.      In  pursuance  of 
that  agreement,  the  plaintiff,  on  February  9,   1885,  at  the  request 
of  the  express  company,   executed,   and  the  express  company  de- 
livered to  the  defendant,  the  following  agreement:  — 

"Old  Colony  Railroad  Company,  Boston,  February  9,  1885.  Whereas, 
under  the  rules  of  the  Old  Colony  Railroad  Company,  passengers  are  not 
allowed  to  ride  in  the  baggage  cars  of  any  trains,  but  the  undersigned,  holder 
of  a  season-ticket,  being  engaged  in  the  express  business,  is  desirous  of  riding 
in  such  car  for  the  more  convenient  despatch  of  his  business  as  an  expressman, 
it  is  understood  and  agreed  that,  in  consideration  of  said  company  allowing 
him  to  ride  in  baggage  cars  on  its  trains,  the  undersigned  will  assume  all  risk 
of  accidents  and  injuries  resulting  therefrom,  and  will  hold  said  company  free 
and  discharged  from  all  claims  and  demands  in  any  way  growing  out  of  any 
injuries  received  by  him  while  so  riding.'' 

The  agreement  was  sent  to  the  plaintiff,  with  a  letter  from  the 
superintendent  of  the  express  company  asking  him  to  sign  it,  and 
he  signed  it  unwillingly,  but  did  so  because  he  understood  that,  if 
he  did  not,  the  railroad  company  would  demand  that  he  should  be 
removed  by  the  express  company  from  his  position  as  messenger. 
The  defendant  thereupon  issued  to  the  express  company,  for  the 
plaintiff,  a  season  ticket,  which  contained  a  provision  that  "it  is 
not  to  be  used  except  on  express  business,  and  if  so  used  will  be 
forfeited,"  and  differed  from  those  issued  to  passengers  generally  in 
having  stamped  upon  it  this  provision:  "The  holder  of  this  ticket, 
having  released  the  company  from  all  liability,  will  be  permitted  .to 
ride  in  the  baggage  car.  J.  Sprague,  Jr.,  General  Passenger 
Agent." 

It  was  contrary  to  the  rules  of  the  railroad  company  to  permit 
passengers  to  ride  in  baggage  cars  and  express  cars,  and  this  provi- 
sion was  stamped  upon  the  ticket  for  the  purpose  of  showing  to  con- 
ductors that  the  person  holding  that  ticket  had  released  the  company 
from  liability,  and  therefore  the  rule  need  not  be  enforced  in  this 


LIMITATION   OF   LIABILITY.  1015 

case.    While  the  plaintiff  was  riding  in  a  bag  car,  as  an  expi 

messenger,  under  the  above  arrangement  with  the  express  comp 
and  contract  signed  by  himself,  and  holding  a  ticket  thus  stum: 
he  received  his  injuries.     The  following  regulation,  signed  by  th<- 
defendant's  general  manager,  was  posted  and  enforced   in  the  b 
gage  ear  in  which  the  plaintiff  rode  while  in  the  employmenl 
express  company  as  a  messenger  on  the  defendant's  road  and  at 
time  of  the  accident  :  — 

"  Old  Colony  Railroad.     Notice.     No  passenger  will  be  allowed  to  ride  in 
the  baggage  car  of  any  train  unless  he  has  signed  a  release  discharging  the 
company  from  all  claims  and  demands  in  any  way  growing  out  of  any 
dent  or  injuries  while  riding  in  such  car.     Conductors  and  baggage-mast 
will  be  particular  at  all  times  not  to  permit  any  passenger  to  ride  in  the 
gage  car  without  the  special  permit,  which  will  be  stamped  on  the  tickel 
those  who  have  complied  with  the  regulations.     This  rule  must  be  strictly 
enforced." 

Two  other  express  companies  —  one  a  local  company  which  had  no 
messenger  in  charge  of  its  express  matter,  the  same  being  cared  for 
by  the  messengers  of  the  other  companies,  and  the  other  the  Ver- 
mont and  Canada  Express,  which  had  a  messenger  riding  in  the 
baggage  car  under  this  regulation  —  were  doing  business  over  that 
portion  of  the  defendant's  road  during  the  year  1885,  and  at  tin-  time 
of  the  accident.  The  express  business  over  the  defendant's  railroad 
was  carried  on  in  the  baggage  car  attached  to  its  passenger  train,  by 
messengers  riding  therein,  under  agreements  and  upon  tickets  like 
that  signed  and  held  by  the  plaintiff. 

The  defendant  contended  that,  upon  the  above  facts,  the  plaintiff 
could  not  recover,  and  asked  the  judge  to  rule  :  "1.  The  agreement 
and  release  is  a  bar  to  the  plaintiff's  recovery.  2.  If  the  release  is 
void  and  not  a  bar,  the  plaintiff  was,  as  a  passenger,  guilty  of  con- 
tributory negligence  by  being  in  the  baggage  car,  contrary  to  the 
known  reasonable  regulation  that  passengers  were  not  allowed  to 
ride  in  the  baggage  car.  3.  On  the  whole  evidence,  the  plaintiff  is 
not  entitled  to  recover,  and  the  verdict  should  be  for  the  defendant." 

The  judge  declined  to  rule  as  requested,  but  ruled  that  the  plain- 
tiff  was   entitled  to  recover,    notwithstanding   the    regulation  and 
agreement,  and  submitted  the  case  to  the  jury  upon  the  questioi 
damages  only.     The  jury  returned  a    verdict   for  the  plaintiff   for 
$  10, 000;  and  the  defendant  alleged  exceptions. 

W.  Allen,  J.  The  rules  of  the  defendant  prohibited  passengers 
from  riding  in  baggage  cars,  and  the  plaintiff  had  no  right  as  a  pas 
senger  to  ride  where  he  was  riding  at  the  time  he  was  injured.  He 
was  there  under  a  special  contract,  by  which,  in  consideration  tha 
the  defendant  would  allow  him  to  ride  in  the  baggage  curs.  In- 
assumed  all  risk  of  accident  and  injuries  resulting  therefrom,  and 
agreed  to  hold  the  defendant  free  and  discharged  from  all  claims 
and  demands  growing  out  of  any  injury  received  by  him  whil<      0 


1Q16  CARRIERS   OF   PASSENGERS. 

riding.  The  parties  plainly  intended  to  include  injuries  resulting 
from  the  negligence  of  the  defendant's  servants. 

We  need  not  consider  whether  the  contract  would  be  construed  or 
held  to  include  injuries  to  which  riding  in  the  baggage  car  did  not 
contribute.  There  was  evidence  tending  to  show  that  the  plaintiff 
would  not  have  been  injured  had  he  been  in  a  passenger  car,  and 
that  his  presence  in  the  baggage  car  directly  contributed  to  the 
injury.  The  ruling  of  the  court  ordering  a  verdict  for  the  plaintiff 
was  a  ruling  that  the  plaintiff  was  entitled  to  recover  for  an  injury 
caused  by  the  negligence  of  the  defendant's  servants,  although  his 
riding  in  the  baggage  car  contributed  to  the  injury.  In  considering 
the  correctness  of  this  ruling,  the  contract  of  the  plaintiff  must  be 
taken  to  have  been,  that  he  would  assume  the  risk  of  injury  from 
the  nesrligence  of  the  defendant's  servants  to  which  his  riding  in 
the  baggage  car  under  the  permission  given  by  the  defendant  should 
contribute.  The  objection  is,  that  the  contract  is  void,  as  without 
consideration,  as  unreasonable,  and  as  against  public  policy.  We 
see  no  objection  to  the  contract  as  construed  and  applied  in  this 
case. 

It  was  the  duty  of  the  defendant  as  a  carrier  of  passengers  to 
transport  persons  over  its  road  on  their  paying  the  established  fare, 
and  to  see  that  its  servants  used  due  care  to  secure  the  safety  of  its 
passengers.  It  was  its  duty  to  give  to  persons  paying  the  estab- 
lished rates  tickets  which  would  be  evidence  of  their  right  to  car- 
riage, and  of  the  defendant's  obligation  to  carry  them  with  due 
care.  The  defendant  was  ready  to  do  this,  and  did  sell  to  the 
plaintiff  a  season  ticket  which  gave  to  him  all  the  rights  of  a  pas- 
senger. The  contract  in  question  was  made  to  give  him  a  right 
which  did  not  belong  to  him  as  a  passenger.  The  plaintiff,  having 
the  rights  of  a  passenger,  desired  to  ride  in  a  baggage  car.  The 
regulations  of  the  defendant,  as  well  as  personal  prudence,  forbade 
him  to  ride  there,  and,  if  he  had  attempted  to  do  so,  he  not  only 
would  have  assumed  all  the  risks  of  injuries  resulting  therefrom, 
but  would  have  been  liable  to  be  expelled  from  the  car  by  the 
defendant. 

It  is  difficult  to  see  upon  what  ground  it  can  be  contended  that 
an  agreement  of  the  plaintiff,  that,  in  consideration  that  the  defend- 
ant would  permit  him  to  ride  in  the  baggage  car,  he  would  assume 
all  risk  of  injuries  resulting  therefrom,  is  unreasonable  or  illegal. 
The  defendant  was  under  no  obligation  to  give  the  permission,  and 
the  effect  of  the  plaintiff's  agreement  was  only  that  the  liability  of 
the  defendant  should  not  be  increased  by  the  permission  that  the 
plaintiff,  if  he  should  be  injured  in  consequence  of  being  in  the 
baggage  car,  should  not  be  entitled  to  recover  damages  of  the  de- 
fendant, on  the  ground  that  he  was  there  by  its  permission.  The 
contract  did  not  diminish  -the  liability  of  the  defendant.  It  left  the 
risk  assumed  by  the  plaintiff  in  riding  in  the  baggage  car  what  it 


LIMITATION   OF   LIABILITY. 


1D17 


would  have  been  without  the  contract;  it  only  secured  him  against 
being  ejected  from  the  car. 

The  question  of  the  right  of  carriers  to  limit  their  liability  for 
negligence  in  the  discharge  of  their  duty  as  carriers  by  contracts 
with  their  customers  or  passengers  in  regard  to  such  duties,  d 
not  arise  under  this  contract  as  construed  in  this  case.     See   Rail- 
road Co.  v.  Lockwood,  17  Wall.  357;  Griswold  v.  New  York  &  New- 
England  Railroad,  53  Conn.  371.     It  was  not  a  contract  for  carriage 
over  the  road,  but  for  the  use  of  a  particular  car.     The  cons: 
ation  of  the  plaintiff's  agreement  was  not  the  performance  of  any- 
thing by  the  defendant  which  it  was  under  any  obligation  to  d< 
which  the  plaintiff  had  any  right  to  have  done.     It  was  a  privi 
granted  to  the  plaintiff.     The  plaintiff  was  not  compelled  to  enter 
into  the  contract  in    order  to    obtain   the    rights   of   a   passenger. 
Having  these  rights,  he  sought  something  more.     The  contract  by 
which  he  obtained  what  he  sought  did  not  impair  his  rights  as  a 
passenger,  and  he  was  under  no  compulsion  to  enter  into  it. 

It  is  contended  that  the  plaintiff,  as  the  servant  of  the  express 
company,  had  a  right,  by  statute,  to  ride  in  the  baggage  car,  and 
that,  therefore,  the  case  comes  within  the  decisions  that  it  is  un- 
reasonable, and  against  public  policy,  for  a  person,  as  a  condition 
of  his  becoming  a  passenger  on  a  railroad,  to  agree  that  he  will  take 
the  risk  of  the  negligence  of  the  servants  of  the  railroad  in  trulls- 
porting  him.  The  express  company  is  a  common  carrier,  and  it  is 
not  contended  that  a  railroad  corporation  is  bound  to  transport,  in 
the  baggage  cars  of  its  passenger  trains,  the  merchandise  and  ser- 
vants of  another  common  carrier,  unless  required  to  do  so  by  some 
statute.  See  Sargent  v.  Boston  &  Lowell  Railroad,  115  Mass.  41  (i 
[364] ;  Express  Cases,  117  U.  S.  1. 

The  statute  relied  on  is  c.   112,    §  188,   of  the  Public  Statutes, 
which  is  in  these  words :  "Every  railroad  corporation  shall  give  to 
all   persons   or   companies  reasonable   and   equal   terms,  facilities. 
and   accommodations    for   the   transportation   of   themselves,   their 
agents  and  servants,  and  of  any   merchandise  and  other  property 
upon  its  railroad,  and  for  the  use  of  its  depot  and  other  build  i 
and   grounds,   and,   at  any  point  where  its  railroad   connects    with 
another  railroad,  reasonable  and  equal  terms  and  facilities  of  in 
change."     The  statute  cannot  be  construed  to  require  railroad  cor- 
porations to  discriminate  in  favor  of  express  companies,  and  to  carry 
their  merchandise  and  messengers  in  the  baggage  cars  of  passei 
trains   on  reasonable  terms,  equally   favorable  to  all  express  com- 
panies.    If  that  were  the  meaning  of  the  statute,  no  questions  a 
the  equality  of  the  terms  given  to  the  plaintiff  or  the  company  he 
represented  would  arise.     The  same  contract  was  required    of  all 
other  express   messengers    who  rode   in   baggage  cars.      The   <>nly 
question    that   would   arise    is    whether   the    terms    granted 
reasonable. 


1018  CARRIERS    OF  PASSENGERS. 

The  fact  that  the  plaintiff  was  riding  in  the  baggage  car  as  an 
express  messenger,  in  charge  of  merchandise  which  was  being 
transported  there,  shows  more  clearly  that  the  contract  by  the 
express  company  and  the  plaintiff  was  not  unreasonable  or  against 
public  policy.  He  was  there  as  a  servant,  engaged  with  the  ser- 
vants of  the  railroad  corporation  in  the  service  of  transportation  on 
the  road.  His  duties  were  substantially  the  same  as  those  of  the 
baggage-master  in  the  same  car;  the  latter  relating  to  merchandise 
carried  for  passengers,  and  the  former  to  merchandise  carried  for 
the  express  company.  His  actual  relations  to  the  other  servants 
of  the  railroad  corporation  engaged  in  the  transportation  were  sub- 
stantially the  same  as  those  of  the  baggage-master,  and  would  have 
been  the  same  had  he  been  paid  by  the  corporation  instead  of  by  the 
express  company.  Had  the  railroad  done  the  express  business,  the 
messenger  would  have  been  held  by  law  to  have  assumed  the  risk 
of  the  nesrlia'ence  of  the  servants  of  the  railroad. 

It  does  not  seem  that  a  contract  between  the  express  company 
and  the  plaintiff  on  the  one  hand,  and  the  defendant  on  the  other, 
that  the  express  messenger,  in  performing  .his  duties,  should  take 
the  same  risk  of  injury  from  the  negligence  of  the  servants  of  the 
railroad  engaged  in  the  transportation  that  he  would  take  if  em- 
ployed by  the  railroad  to  perform  the  same  duties,  would  be  void 
as  unreasonable  or  as  against  public  policy.  When  we  add  the  con- 
siderations that  the  plaintiff  was  a  passenger  whose  rights  as  such 
were  not  impaired  by  the  agreement,  and  that  the  agreement  was  to 
assume  the  risk  of  injuries  resulting  from  his  riding  in  baggage 
cars,  in  consideration  of  being  permitted  to  ride  there  to  conduct 
the  express  business,  it  seems  clear  that  the  contract  is  a  valid  and 
sufficient  defence  to  an  action  against  the  defendant  for  injuries 
resulting  from  the  negligence  of  the  defendant's  servants,  to  which 
the  fact  that  the  plaintiff  was  riding  in  the  baggage  car  under  the 
agreement  contributed. 

Exceptions  sustained.1 


QUIMBY  v.  BOSTON",  etc.  R.   CO. 
150  Mass.  365.     1890. 

Tort  for  personal  injuries  occasioned  to  the  plaintiff  in  an  acci- 
dent upon  the  defendant's  railroad,  through  the  alleged  negligence  of 
its  servants. 

It  was  admitted  that  at  the  time  when  the  injuries  were  received 
the  plaintiff  was  travelling  upon  a  free  pass  given  to  him  at  his 

i  Ace. :  B.  &  0.  etc.  R.  Co.  v.  Voigt,  176  U.  S.  498,  20  S.  C.  Rep.  385  ;  Walther 
v.  Southern  Pac.  R.  Co.,  159  Cal.  769,  116  Pac.  R.  51,  37  L.  R.  A.  N.  S.  239. 


LIMITATION   OF   LIABILITY.  Id 

solicitation  by  the  general  manager  of  the  defendant  corporation. 
The  face  of  the  pass  bore  the  following:  — 

"1062.  Trip  Pass.  Boston  and  Maine  Railroad.  Pasa  Asa  <,>uiraby  au<i 
wife,  Account  of  Boston  and  Maine  K.  It.,  from  Salem  to  (  oncord,  N .  II.. 
provided  he  signs  the  agreement  on  the  back  hereof,  (iood  until  May  20, 
1886,  and  not  good  for  passage  in  the  opposite  direction.  Boston,  April  20, 
1886.     Jas.  T.  Furber,  Gen'l  Manager." 

The  face  of  the  pass  also  bore  upon  its  left-hand  margin  the 
words:    ''Read  the  other  side." 

Upon  the  back  of  the  pass  was  the  following:  — 

"  1886.  Agreement.  In  consideration  of  being  given  this  free  ticket  by 
the  Boston  and  Maine  Railroad,  T,  the  undersigned,  hereby  agree  to  assume 
all  risk  of  accident,  of  every  name  and  nature,  which  may  happen  to  me  while 
travelling  on,  or  getting  on  or  getting  off,  the  trains  of  said  railroad  on  which 
this  ticket  is  honored  for  passage,  by  which  I  may  be  injured  in  my  person, 
or  for  the  loss  of  or  damage  to  any  of  my  property,  being  transported  free 
charge,  in  the  same  train  with  myself.  [Here  followed  a  blank  space  for  the 
*'  Signature  of  holder  of  this  free  ticket."  If  this  free  ticket  is  presented  by 
any  other  than  the  person  whose  signature  appears  above,  conductors  will  take 
it  up  and  collect  fare." 

The  pass  had  not  been  signed  by  the  plaintiff,  but  he  was  travel- 
ling upon  it  when  his  injuries  were  received.  He  had  tendered  it 
to  the  conductor  of  the  train,  who  had  honored  it  as  good  for  his 
passage,  and  had  twice  punched  it.  No  oral  testimony  was  intro- 
duced as  to  whether  the  plaintiff  had  read  or  had  not  it-ad  the 
language  printed  upon  the  pass. 

The  defendant  admitted  the  negligence  of  its  servants,  but  con- 
tended that  it  was  not  liable  to  the  plaintiff  by  reason  of  the  fact 
that  he  was  riding  upon  the  free  pass  when  injured;  and  asked  the 
judge  to  instruct  the  jury,  that,  upon  the  above  facts,  the  plaintiff 
could  not  maintain  his  action;  and  the  judge,  being  of  the  opinion 
that  the  action  could  not  be  maintained,  submitted  the  case  on  the 
question  of  damages  only  to  the  jury,  who  returned  a  verdict  assess- 
ing the  plaintiff's  damages. 

If  upon  the  above  farts  the  plaintiff  Avas  entitled  to  recover,  judg- 
ment was  to  be  entered  upon  the  verdict;  otherwise,  judgment  was 
to  be  entered  for  the  defendant. 

Devens,  J.  When  the  plaintiff  received  his  injury,  he  was 
travelling  upon  a  free  pass,  given  him  at  his  own  solicitation  and 
as  a  pure  gratuity,  upon  which  was  expressed  his  agreement  that 
in  consideration  thereof  he  assumed  all  risk  of  accident  which  might 
happen  to  him  while  travelling  on  or  getting  on  or  off  the  tra 
the  defendant  railroad  corporation  on  which  the  ticket  mighl  be 
honored  for  passage.  The  ticket  bore  on  its  face  the  words,  "Pro- 
vided he  signs  the  agreement  on  the  back  hereof."  In  the 
agreement  was  not   signed   by  the   plaintiff,    he  not    havii 


1020  CARRIERS    OF   PASSENGERS. 

required  to  do  so  by  the  conductor,  who  honored  it  as  good  for  the 
passage,  and  who  twice  punched  it.  The  fact  that  the  plaintiff  had 
not  signed  it,  and  was  not  required  to  sign  it,  we  do  not  regard  as 
important.  Having  accepted  the  pass,  he  must  have  done  so  on  the 
conditions  fully  expressed  therein,  whether  he  actually  read  them 
or  not.  Squire  v.  New  York  Central  Railroad,  98  Mass.  239;  Hill 
v.  Boston,  Hoosac  Tunnel,  &  Western  Railroad,  144  Mass.  284; 
Boston  &  Maine  Railroad  v.  Chipman,  146  Mass.  107. 

The  object  of  the  provision  as  to  signing  is  to  furnish  complete 
evidence  that  the  person  to  whom  the  pass  is  issued  assents  thereto; 
but  one  who  actually  avails  himself  of  such  a  ticket,  and  of  the 
privileges  it  confers,  to  secure  a  passage,  cannot  be  allowed  to  deny 
that  he  made  the  agreement  expressed  therein  because  he  did  not 
and  was  not  required  to  sign  it.  Gulf,  Colorado,  &  Santa  Fe  Rail- 
way v.  McGown,  65  Texas,  640,  643;  Illinois  Central  Railroad  v. 
Read,  37  111.  484;  Wells  v.  New  York  Central  Railroad,  24  N.  Y. 
181;  Perkins  v.  New  York  Central  Railroad,  24  N.  Y.  196.  If 
this  is  held  to  be  so,  the  case  presents  the  single  question  whether 
such  a  contract  is  invalid,  which  has  not  heretofore  been  settled  in 
this  State,  and  upon  which  there  has  been  great  contrariety  of 
opinion  in  different  courts.  If  the  common  carrier  accept  a  person 
as  a  passenger,  no  such  contract  having  been  made,  such  passenger 
may  maintain  an  action  for  negligence  in  transporting  him,  even  if 
he  be  carried  gratuitously.  Having  admitted  him  to  the  rights  of 
a  passenger,  the  carrier  is  not  permitted  to  deny  that  he  owes  to 
him  the  duty  which,  as  carrying  on  a  public  employment,  he  owes 
to  those  who  have  paid  him  for  the  service.  Todd  v.  Old  Colony  & 
Fall  River  Railroad,  3  Allen,  18;  Commonwealth  v.  Vermont  & 
Massachusetts  Railroad,  108  Mass.  7;  Littlejohn  v.  Fitchburg  Rail- 
road, 148  Mass.  478;  Files  v.  Boston  &  Albany  Railroad,  149  Mass. 
204;  Philadelphia  &  Reading  Railroad  v.  Derby,  14  How.  468; 
Steamboat  New  World  v.  King,  16  How.  469  [940].  But  the 
question  whether  the  carrier  may,  as  the  condition  upon  which  he 
grants  to  the  passenger  a  gratuitous  passage,  lawfully  make  an 
agreement  with  him  by  which  the  passenger  must  bear  the  risks  of 
transportation,  obviously  differs  from  this. 

In  a  large  number  of  cases,  the  English  courts,  as  well  as  those 
of  New  York,  have  held  that  where  a  drover  was  permitted  to 
accompany  animals  upon  what  was  called  a  free  pass,  issued  upon 
the  condition  that  the  user  should  bear  all  risks  of  transportation, 
he  could  not  maintain  an  action  for  an  injury  received  by  the  negli- 
gence of  the  carrier's  servants.  A  similar  rule  would,  without 
doubt,  be  applied  where  a  servant,  from  the  peculiar  character  of 
goods,  such  as  delicate  machinery,  is  permitted  to  accompany  them, 
and  in  other  cases  of  that  nature.  That  passes  of  this  character  are 
free  passes  properly  so  called  has  been  denied  in  other  cases,  as  the 
carriage  of  the  drover  is  a  part  of  the  contract  for  the  carriage  of 


LIMITATION    OF    LIABILITY.  !<]_<[ 

the  animals.     The  cases  on  this  point  were  carefully  examined  and 
criticised  by  Mr.  Justice  Bradley,  in  Railroad  Co.   v.    Lockwood,  17 
Wall.  .357,  367;  and  it  is  there  held  that  such  a  pass  is  not  gratu- 
itous, as  it  is  given  as  one  of  the  terms  upon  which  the  cattle  are 
carried.     The  decision  is  put  upon  the  ground  that  the  drover  was 
a  passenger  carried  for  hire,  and  that  with  such  passenger  a  eon- 
tract  of  this  nature  could  not  be  made.    The  court,  at  the  conclusion 
of  the  opinion,  expressly  waives  the  discussion  of  the  question   1 
presented,  and,  as  it  states,  purposely  refrains  from  expressing  any 
opinion  as  to  what  would  have  been  the  result  had  it  considered 
plaintiff  a  free  passenger,  instead  of  one  for  hire.     Railway  Co.  v. 
Stevens,  95  U.  S.  655  [1010],  in  which  the  same  distinguished  jui 
delivered  the  opinion  of  the  court,  is  put  upon  the  ground  that 
transportation  of  the  defendant,   although  not  paid  for  by  him  in 
money,  was  not  a  matter  of  charity  or  gratuity  in  any  sense,  but 
was  by  virtue  of  an  agreement  in  which  the  mutual  interest  of 
parties  was  consulted. 

Whether  the  English  and  New  York  authorities  rightly  or  wrongly 
hold  that  one  travelling  upon  a  drover's  pass,  as  it  is  sometimes 
called,  is  a  free  passenger,  they  show  that,  in  the  opinion  of  those 
courts,  a  contract  can  properly  be  made  with  a  free  passenger  that 
he  shall  bear  the  risks  of  transportation.     This  is  denied  by  many 
courts  whose  opinions  are  entitled  to  weight.     It  will  be  observed 
that  in  the  case  at  bar  there  is  no  question  of  any  wilful  or  mali- 
cious injury,  and  that  the  plaintiff  was  injured  by  the  carelessness 
of  the  defendant's  servants.     The  cases  in  which  the  passenger  was 
strictly  a  free  passenger,  accepting  his  ticket  as  a  pure  gratuity,  and 
upon  the  agreement  that  he  would  himself  bear  the  risk  of  trans- 
portation, are  comparatively  few.     They   have  all   been  caref un- 
considered in  two  recent  cases,  to  which  we  would  call  attention. 
These  are  Griswold  v.  New  York  &  New  England  Railroad,  53  Conn. 
371,  decided  in  1885,  and  that  of  Gulf,  Colorado,  &  Santa  Fe  Rail-. 
road  v.  McGown,  65  Texas,  640,  decided  in  1886,  in  which  the  pre- 
cise  question   before   us   was   raised  and  decided,    after  a   careful 
examination  of  the  authorities,  and  opposite  conclusions  reached, 
by   the   highest   courts  of   Connecticut   and  of   Texas.     No   doubt 
existed  in  either  case,  in  the  opinion  of  the  court,  that  the  ticket   oi 
the  passenger  was  strictly  a  gratuity,  and  it  was  held  by  the  former 
court  that,  under  these  circumstances,  the  carrier  and  the  passenger 
might    lawfully  agree  that  the  passenger  should  bear  the  risks  of 
transportation,  and  that  such  agreement  would  be  enforced,  while  the 
reverse  was  held  by  the  court  of  Texas.    We  are  brought  to  the  deri- 
sion of  the  question  unembarrassed  by  any  weight  of  authority  with 
out  the  Commonwealth  that  can  be  considered  as  preponderating. 

It  is  urged  on  behalf  of  the  plaintiff,  that,  while  the  relation 
of  passenger  and  carrier  is  created  by  contract,  it  does  not  fol- 
low  that   the  duty  and  responsibility  of   the  carrier  is  dependent 


1022  CARRIERS    OF    PASSENGERS. 

upon  the  contract;  that,  while  with  reference  to  matters  indifferent 
to  the  public,  parties  may  contract  according  to  their  own  pleasure, 
they  cannot  do  so  where  the  public  has  an  interest;  that,  as  certain 
duties  are  attached  by  law  to  certain  employments,  these  cannot  be 
waived  or  dispensed  with  by  individual  contracts;  that  the  duty  of 
the  carrier  requires  that  he  should  convey  his  passengers  in  safety ; 
and  that  he  is  properly  held  responsible  in  damages  if  he  fails  to  do 
so  by  negligence,  whether  the  negligence  is  his  own  or  that  of  his 
servants,  in  order  that  this  safety  may  be  secured  to  all  who  travel. 
It  is  also  said,  that  the  carrier  and  the  passenger  do  not  stand  upon 
an  equality;  that  the  latter  cannot  stand  out  and  higgle  or  seek 
redress  in  the  courts ;  that  he  must  take  the  alternative  the  carrier 
presents,  or  practically  abandon  his  business  in  the  transfer  of 
merchandise,  and  must  yield  to  the  terms  imposed  on  him  as  a 
passenger;  that  he  ought  not  to  be  induced  to  run  the  risks  of 
transportation  by  being  allowed  to  travel  at  a  less  fare,  or  for  any 
similar  reason,  and  thus  to  tempt  the  carrier  or  his  servants  to 
carelessness  which  may  affect  others  as  well  as  himself;  and  that, 
in  few  words,  public  policy  forbids  thrt  contracts  should  be  entered 
into  with  a  public  carrier  by  which  he  shall  be  exonerated  from  his 
full  responsibility.  Most  of  this  reasoning  can  have  no  application 
to  a  strictly  free  passenger,  who  receives  a  passage  out  of  charity, 
or  as  a  gratuity. 

Certainly  the  carrier  is  not  likely  to  urge  upon  others  the  accept- 
ance of  free  passes,  as  the  success  of  his  business  must  depend  on 
his  receipts.  There  can  be  no  difficulty  in  the  adjustment  of  terms 
where  passes  are  solicited  as  gratuities.  When  such  passes  are 
granted  by  such  of  the  railroad  officials  as  are  authorized  to  issue 
them,  or  by  other  public  carriers,  it  is  in  deference  largely  to  the 
feeling  of  the  community  in  which  they  are  exercising  a  public 
employment.  The  instances  cannot  be  so  numerous  that  any  temp- 
tation will  be  offered  to  carelessness  in  the  management  of  their 
trains,  or  to  an  increase  in  their  fares,  in  both  of  which  subjects  the 
public  is  interested.  In  such  instances,  one  who  is  ordinarily  a 
common  carrier  does  not  act  as  such,  but  is  simply  in  the  position 
of  a  gratuitous  bailee.  The  definition  of  a  common  carrier,  which  is 
that  of  a  person  or  corporation  pursuing  the  public  employment  of 
conveying  goods  or  passengers  for  hire,  does  not  apply  under  such 
circumstances.  The  service  which  he  undertakes  to  render  is  one 
which  he  is  under  no  obligation  to  perform,  and  is  outside  of  his 
regular  duties.  In  yielding  to  the  solicitation  of  the  passenger,  he 
consents  for  the  time  being  to  put  off  his  public  employment,  and 
to  do  that  which  it  does  not  impose  upon  him.  The  plaintiff  was  in 
no  way  constrained  to  accept  the  gratuity  of  the  defendant;  it  had 
been  yielded  to  him  only  on  his  own  solicitation.  When  he  did, 
there  is  no  rule  of  public  policy,  we  think,  that  prevented  the  carrier 
from  prescribing,  as  the  condition  of  it,  that  it  should  not  be  com- 


LIMITATION    OF   LIABILITY.  p, 

pelled,    in   addition  to  carrying  the  passenger   gratuitously,   to 
responsible  to  him  in  damages  for  the  negligent 
It  is  well  known  that,  with  all  the  care  that  can  be  exercised  in  the 
selection  of  servants  for  the  management  of  the  various  applian 
of  a  railroad  train,  accidents  will  sometimes  occur  from  momentary 
carelessness  or  inattention.     It  is  hardly  reasonable  that,  beside  the 
gift  of  free  transportation,  the  carrier  should  be  held   responsib 
for  these,   when  he  has  made  it  the  condition  of  bis  gift  that  he 
should  not  be.     Nor,  in  holding  that  he  need  not  be  under  these 
circumstances,  is  any  countenance  given  to  the  idea  that  tin-  carrier 
may  contract  with  a  passenger  to  convey  him  for  a  less   price  on 
being  exonerated  from  responsibility  for  the  negligence  of  his 
vants.     In  such  a  case  the  carrier  would  still  be  acting  in  the  public 
employment  exercised  by  him,  and  should  not  escape  its  respoii 
bilities,  or  limit  the  obligations  which  it  imposes  upon  him. 

In  some  cases  it  has  been  held  that  while  a  carrier  cannot  limit 
his  liability  for  gross  negligence,  which  has  been  defined  as  his  own 
personal  negligence  (or  that  of  the  corporation  itself,  where  that  is 
the  carrier),  he  can  contract  for  exemption  from  liability  for  the 
negligence  of  his  servants.  It  may  be  doubted  whether  any  such 
distinction  in  degrees  of  negligence,  in  respect  to  the  right  of  a 
carrier  to  exempt  himself  from  responsibility  therefor,  can  be  profit- 
ably made  or  applied.  Steamboat  New  World  v.  King,  10  How. 
469.  It  is  to  be  observed,  however,  that  in  the  case  at  bar  the  injury 
occurred  through  the  negligence  of  defendant's  servants,  and  I 
through  any  failure  on  the  part  of  the  corporation  to  prescribe 
proper  rules  or  to  furnish  proper  appliances  for  the  conduct  of 
business.  We  are  of  opinion  that  where  one  accepts,  purely  as 
a  gratuity,  a  free  passage  in  a  railroad  train,  upon  the  agreement 
that  he  will  assume  all  risk  of  accident  which  may  happen  to  him. 
while  travelling  in  such  train,  by  which  he  may  be  injured  in  his 
person,  no  rule  of  public  policy  requires  us  to  declare  such  contract 
invalid  and  without  binding  force.     By  the  terms  of   the   report 

there  must,  therefore,  be 

Judgment  for  the  defendant. 


JACOBUS   v.    SAINT   PAUL,  etc.  E.    CO. 

20  Minn.  125.     1S73. 

The  plaintiff  brought  this  action  to  recover  damages  for  pi 
injury  sustained  while  travelling  as  a  passenger  upon  defend; 
railroad,  occasioned,  as  is  alleged,  by  the  negligence  of  the  defend- 
ant.    The  defences  were,  that  the  plaintiff  was  travelling 
free  pass  or  ticket,  issued  to  him  without  consideration, 


!Q2^  CARRIERS    OF   PASSENGERS. 

ing  which  lie  assumed  all  risks  of  accident;  that  contrary  to  the 
regulation  of  the  defendant,  well  known  to  plaintiff,  he  was  riding 
in  a  baggage  car,  when  the  accident  occurred;  that  plaintiff's  own 
negligence  contributed  to  the  injury,  without  any  negligence  of 
defendant. 

The  cause  was  tried  in  the  Court  of  Common  Pleas  for  Ramsey 
County,  resulting  in  a  verdict  for  the  plaintiff.  Defendant  moved 
to  set  aside  the  verdict,  and  for  a  new  trial,  upon  the  grounds: 
ulst.  That  the  verdict  is  not  justified  by  the  evidence,  and  is  con- 
trary to  law.  2d.  Errors  of  law  occurring  at  the  trial,  excepted 
to  by  the  defendant."  The  motion  was  denied,  and  defendant 
appeals  to  this  court.  The  same  points  are  made  in  this  court,  and 
are  so  fully  discussed  in  the  opinion,  that  no  further  statement  is 
necessary. 

Berry,  J.  The  plaintiff  brings  this  action  to  recover  damages 
for  injuries  occasioned  to  his  person  by  the  alleged  gross  negligence 
of  defendant's  servants  in  charge  of  defendant's  railway  train,  upon 
which  plaintiff  was  travelling.  Plaintiff  was  riding  upon  a  free 
pass,    which,    together    with  the  conditions  indorsed,    is    in   these 

words,   viz. :  — 

"St.  Paul  &  Chicago  Railway. 

"  Pass  D.  Jacobus  upon  the  conditions  indorsed  hereon,  until  Dec.  31st, 
1871,  unless  otherwise  ordered.     Not  transferable. 

"  D.  C.  Shepard,  Chf.  Eng.  and  Supt. 

"  Conditions. 
"  The  person  who  accepts  and  uses  this  free  ticket  thereby  assumes  all  risk 
of  accident,  and  agrees  that  the  company  shall  not  be  liable  under  any  circum- 
stances, whether  of  negligence  of  its  ageuts  or  otherwise,  for  an  injury  of  the 
person,  or  for  any  loss  or  injury  to  his  property,  while  using  or  having  the 
benefit  of  it." 

Upon  the  pleadings  and  the  charge  of  the  court,  the  first  question 
arising  in  this  case  is,  whether  the  pass,  with  its  conditions,  pro- 
tects defendant  from  liability  for  injury  received  by  plaintiff  while 
riding  upon  such  pass,  even  though  the  injury  was  caused  by  gross 
negligence  upon  defendant's  part.  In  our  opinion,  this  question 
should  be  answered  in  the  negative.  For  the  reason  that  the  degree 
of  care  and  diligence  exacted  of  a  bailee  should  be  proportioned  to 
the  importance  of  the  business  and  of  the  interests  at  stake  (Halley 
v.  Boston  Gas  Light  Co.,  8  Gray,  131;  57  Me.  202),  "the  law  im- 
poses upon  the  common  carrier  of  passengers  the  greatest  care  and 
foresight  for  the  safety  of  his  passengers,  and  holds  him  liable  for 
the  slightest  neglect."  McLean  v.  Burbank,  11  Minn.  288.  And 
for  like  reasons  the  same  extreme  care  is  required,  though  the  pas- 
senger be  carried  gratuitously.  Having  undertaken  to  carry,  the 
duty  arises  to  carry  safely.  Phil.  &  Reading  R.  R.  Co.  v.  Derby, 
14  Howard  (U.  S.),  486;  Nolton  v.  Western  Railway,  15  N.  Y. 
144  [904];  Steamboat  New  World  v.  King,  16  How.    (U.  S.),   474 


LIMITATION    OF    LIABILITY.  ](IJ- 

[940]  ;  2  Redfield  on  Railways,  184-5,  and  notes;  Perkins  v.  N.  V. 
Central  R.  W.  Co.,  24  N.  Y.  200;  Todd  v.  Old  Col.  &  V.  K.  ];.  I 
3  Allen,  21. 

In  the  case  at  bar,  however,  the  plaintiff  was  not  merely  a  gratu- 
itous passenger;  i.  e.,  a  passenger  carried  without  payment  of  fare 
or   other   consideration.      He   was  a  passenger   upon   a   free    pa 
expressly  conditioned  that  the  defendant  should  not  be   liable    to 
him  for  any  injury  of  his  person  while  he  was  using  or  having  tin- 
benefit  of  such  pass.     Does  this  circumstance  distinguish  b 
from  that  of  a  merely  gratuitous  passenger?     Upon  the  question 
whether  conditions  of  this  kind  are  valid  and  effectual  to  exonei 
the  carrier  of  passengers,  the  adjudications  differ.     In  New   Y 
the  conditions  appear  to  be  held  sufficient  to  absolve  the  carrier 
from  liability,  even   for   the   gross   negligence   of  his   employees. 
Wells  v.    N.   Y.   Central  Railway  Co.,  24  N.  Y.  181;    Perkins   v. 
Same,  ib.  196;  Bissell  v.  Same,  25  N.  Y.  442.     In  New  Jersey,  it 
is  held  that   such  conditions  are  good  as  against  ordinary  negli- 
gence,   with  a  very   decided  intimation  that  the   exemption    from 
liability  comprehends  gross  negligence  also.     Kinney  v.    Cen.    R. 
R.  Co.,  34  N.  J.  513. 

In  Pennsylvania,  Illinois,  Indiana,  and  several  other  States,  the 
courts  hold  that  no  such  condition  will  avail  to  protect  the  carrier 
from  responsibility  for  the  gross  negligence  of  its  employees.  111. 
Central  Co.  v.  Read,  37  111.  484;  19  id.  136;  The  Ind.  Cen.  E. 
Co.  v.  Munday,  21  Ind.  48;  Penn.  R.  Co.  v.  McCloskey's  Adm'r, 
23  Pa.  532;  Mobile  &  Ohio  Railway  v.  Hopkins,  41  Ala.  489. 

There  are  two  distinct  considerations  upon  which  the  stringent 
rule  as  to  the  duty  and  liability  of  carriers  of  passengers  rests. 
One  is  a  regard  for  the  safety  of  the  passenger  on  his  own  account, 
and  the  other  is  a  regard  for  his  safety  as  a  citizen  of  the  Si 
The  latter  is  a  consideration  of  public  policy  growing  out  of  the 
interest  which  the  State  or  government  as  parens  patrice  has  in  pro- 
tecting the  lives  and  limbs  of  its  subjects.  Shearman  &  Redfield 
on  Negligence,  §  24;  C.  P.  &  A.  R.  Co.  v.  Curran,  19  Ohio  State, 
12;  Phil,  and  Reading  R.  R.  Co.  v.  Derby,  supra;  Steamboat  New 
World  v.  King,  supra;  Smith  v.  N.  Y.  Central  R.  Co.,  24  X.  V. 
222;  111.  C.  R.  Co.  v.  Read,  supra;  Penn.  R.  Co.  v.  Henderson, 
51  Penn.  315;  Bissell  v.  N.  Y.  C.  R.  Co.,  25  N.  Y.  455.  per  Denio, 
J.;  N.  Y.  Central  R.  Co.  v.  Lockwood  (U.  S.  Supreme  Ct.),  nol 
yet  reported. 

So  far  as  the  consideration  of  public  policy  is  concerned,  it  can- 
not be  overridden  by  any  stipulation  of  the  parties  to  the  contracl 
of  passenger  carriage,  since  it  is  paramount  from  its  very  nature. 
stipulation  of  the  parties  in  disregard  of  it,  or  involving  its  sacr 
in  any  degree,  can,  then,  be  permitted  to  stand.     Whether  the 
be  one  of  a  passenger  for  hire  —  a  merely  gratuitous  passenger  - 
of  a  passenger  upon  a  conditioned  free  pass,  as  in  this  instance,  the 


1026  CARRIERS    OF   PASSENGERS. 

interest  of  the  State  in  the  safety  of  the  citizen  is  obviously  the 
same.  The  more  stringent  the  rule  as  to  the  duty  and  liability  of 
the  carrier,  and  the  more  rigidly  it  is  enforced,  the  greater  will  be 
the  care  exercised,  and  the  more  approximately  perfect  the  safety 
of  the  passenger.  Any  relaxation  of  the  rule  as  to  duty  or  liability 
naturally,  and  it  may  be  said  inevitably,  tends  to  bring  about  a  cor- 
responding relaxation  of  care  and  diligence  upon  the  part  of  the 
carrier.  We  can  conceive  of  no  reason  why  these  propositions  are 
not  equally  applicable  to  passengers  of  either  of  the  kinds  above 
mentioned. 

It  is  said,  however,  that  it  is  unreasonable  "  to  suppose  that  the 
managers  of  a  railroad  train  will  lessen  their  vigilance  and  care  for 
the  safety  of  the  train  and  its  passengers  because  there  may  be  a 
few  on  board  for  whom  they  are  not  responsible."  In  the  first 
place,  if  this  consideration  were  allowed  to  prevail,  it  would  prove 
too  much ;  for  it  could  be  urged  with  equal  force  and  propriety  in 
the  case  of  a  merely  gratuitous  passenger,  as  in  a  case  like  this  at 
bar.  Yet,  as  we  have  seen,  no  such  consideration  is  permitted  to 
relieve  the  carrier  from  the  same  degree  of  liability  for  a  gratuitous 
passenger,  as  for  a  passenger  for  hire. 

Again,  suppose  (what  is  not  at  all  impossible  or  improbable,  as, 
for  instance,  in  case  of  a  free  excursion),  that  most  or  all  of  the  pas- 
sengers upon  a  train  were  gratuitous,  or  riding  upon  conditioned 
free  passes,  the  consideration  urged  would  be  no  answer  to  a  claim 
that  the  carrier  should  be  responsible.  A  general  rule  can  hardly 
be  based  upon  such  calculations  of  chances.  Moreover,  while  it 
might  not  ordinarily  occur  that  the  presence  of  a  free  passenger 
upon  a  train,  for  injury  to  whom  the  carrier  would  not  be  liable, 
would  tend  to  lessen  the  carrier's  sense  of  responsibility  and  his 
vigilance,  it  still  remains  true  that  the  greater  the  sense  of  respon- 
sibility, the  greater  the  care ;  and  that  any  relaxation  of  responsi- 
bility is  dangerous. 

Besides  these  considerations,  it  is  to  be  remembered  that  the  care 
and  vigilance  which  a  carrier  exercises  do  not  depend  alone  upon  a 
mere  sense  of  responsibility,  or  upon  the  existence  of  an  abstract 
rule  imposing  stringent  obligations  upon  him.  It  is  the  enforce- 
ment of  the  rule,  and  of  the  liability  imposed  thereby,  —the  mulct- 
ing of  the  carrier  for  his  negligence  which  brings  home  to  him  in 
the  most  practicable,  forcible,  and  effectual  way,  the  necessity  for 
strictly  fulfilling  his  obligations. 

It  may  be  that  on  a  given  occasion  the  gratuitous  passenger,  or 
the  passenger  upon  a  free  pass,  is  the  only  person  injured  (as,  for 
aught  that  appears,  was  the  fact  in  this  instance),  or  the  only  party 
who  will  proceed  against  the  carrier,  the  only  person  who  will 
practically  enforce  upon  the  carrier  the  importance  of  a  faithful 
discharge  of  his  duty.  These  considerations,  as  it  seems  to  us, 
ought  to  be  decisive  upon  the  point  that  sound  public  policy  requires 


LIMITATION   OF   LIABILITY.  ]il_'7 

that  the  rule  as  to  the  liability  of  the  carrier  for  the  sai 
passenger  should  not  be  relaxed,  though  the  passenger  be  gratui- 
tous, or,  as  in  this  case,  riding  upon  a  condition!-*!   free  pass.     It   is 
contended  that  there  was  no  proof  of  gross  negligence  on  defend- 
ant's part,  and  that,  therefore,  the  verdict  was  not  justified.     Tl 
was  evidence  that  the  train  was  a  mixed  train;  that  it  was  ruin 
from  forty  to  forty-five  miles  an  hour  according  to  the  plaintil 
according  to  the  other  witnesses,  from  fifteen  to  twenty-two  mi 
an  hour;   that  the  lumber  was  upon  a  platform  car,   and  that  tin- 
stake  of  the  lumber  car,  in  consequence  of  the  breaking  of  which 
the  injury  occurred,  was  a  stick  of  butternut  cord  wood,  and  was 
cross-grained.     There  was  also  the  testimony  of  J.   T.    Maxfield,  of 
St.  Paul,  a  passenger  who  appears  to  be  an  intelligent  and  entirely 
disinterested   witness,    and   who   says,    "I    felt  anxious  about 
lumber  car.     I  was  afraid  of  the  speed.   ...  I  was  apprehen 
of  danger  from  the  character  of  our  train.     I  spoke  to  the  brake- 
man  about  it.   .   .   .   Have  travelled  on  trains  a  good   deal."     And 
taking  all  these  facts  together  —  to  say  nothing  about  others  appear- 
ing in  the  case  —  it  cannot  be  said  that  there  was  not  evidence  in 
the  case  proper  to   be  considered  by  the  jury,  and  having  some 
reasonable  tendency  to  establish  negligence,   which  has  been  well 
described  as  being  a  negative  word  signifying  the  absence  of  such 
care  as  it  is  the  duty  of  the  negligent  party  to  exercise  in  the  par- 
ticular case.     Grill  v.  General,  &c,  Collier  Co.,  Law  Rep.,  1  C.  1'. 
612;  Steamboat  New  World  v.  King,  supra.     We  will  go  further 
even,  and  say  that  the  evidence,  in  our  opinion,  had  a  reasonable 
tendency  to  establish  gross  negligence  in  the  sense  of  a  great  degree 
of  negligence.     Angell  on  Carriers,  §  22.     As  to  the  point  of  tin- 
degree  of  negligence  necessary  to  sustain  this  action,  it  is,  however, 
to  be  remarked,  in  view  of  the  stringent  rule  as  to  liability,   that 
where  the  question  is  between  a  railway  carrier  and  a  passenger, 
there  would  seem  to  be  no  occasion  for  the  ordinary  distinction  oi 
different  degrees  of  negligence,  as  slight,  ordinary,  and  gross.      k& 
is  well  and  forcibly  said  by  Mr.  Justice  Grier  in  Philad.  &   Reading 
R.  Co.,  supra:  " AVhen  carriers  undertake  to  convey  persons  by  the 
powerful  but  dangerous  agency  of  steam,  public  policy  and  sa 
require  that  they  be  held  to  the   greatest  possible  care  and  dili- 
gence.    And  whether  the  consideration  for  such  transportation  be 
pecuniary  or  otherwise,  the  personal  safety  of  the  passengers  should 
not  be  left  to  the  sport  of  chance  or  the   negligence  oi   careles 
agents.     Any  negligence  in  such  cases  may  well  deserve  the  epithet 
of  'gross.'"     So  in  Steamboat  New    World   v.    Kin-.    Mr.   Justice 
Curtis,  referring  to  the  doctrine  thus  announced,  says:  "We  d< 
to  be  understood  to  re-affirm  that  doctrine  as  resting  not  onlj 
public  policy,  but  on  sound  principles  of  law."  similar  ri< 

the   impracticability   of   a   distinction    between   different   kinds   of 
negligence  as  applicable  to  cases  of  this  kind  is  taken  in  Perkins  v. 


1028  CARRIERS    OF   PASSENGERS. 

N.  Y.  Central  R.  Co.,  supra.  The  carrier  being  bound  to  exercise 
the  greatest  care,  and  being  liable  for  the  slightest  neglect,  what 
is  said  by  Rolfe,  B.,  in  Wilson  v.  Brett,  11  Mees.  &  Welsby,  113  [56], 
and  indorsed  by  Willis,  J.,  in  Grill  v.  General,  &c,  Collier  Co., 
Law  Rep.,  1  C.  P.  612,  is  in  point  in  a  case  of  this  kind,  viz. :  that 
he  "could  see  no  difference  between  negligence  and  gross  negligence; 
that  it  was  the  same  thing  with  the  addition  of  a  vituperative  epi- 
thet." See  also  Angell  on  Carriers,  §  23,  and  Briggs  v.  Taylor, 
28  Vt.  180. 

It  is  further  argued  on  behalf  of  the  defendant,  that  the  plaintiff, 
by  his  own  negligence,  contributed  to  the  injury  sustained,  aud  for 
that  reason  he  cannot  recover.  This  argument  is  founded  upon  the 
fact  that  plaintiff  was  in  the  baggage  car  at  the  time  of  the  acci- 
dent, and,  as  defendant  contends,  wrongfully  there.  But,  in  the 
first  place,  the  evidence  is  conflicting  as  to  whether  or  not  the  plain- 
tiff was  informed  of  the  rule  of  the  company  excluding  passengers 
from  the  baggage  car.  If  he  was  not  so  informed,  and  was  suffered 
to  remain  there  without  objection,  it  could  hardly  be  said  that  his 
presence  there  was  negligence.  Dunn  v.  Grand  Trunk  .Railway, 
58  Maine,  187.  Again,  if  it  be  admitted  that  the  plaintiff  was  duly 
informed  of  the  regulation  of  the  company  excluding  passengers 
from  the  baggage  car,  the  evidence  shows  that  he  was,  at  least, 
permitted  to  remain  there  by  the  conductor.  If  he  was  thus  per- 
mitted to  remain,  so  that  he  was  there  with  the  knowledge  of  the 
conductor,  and  without  any  attempt  on  the  part  of  the  conductor  to 
enforce  the  company's  rule  by  removing  him,  his  presence  there 
would  not  be  such  negligence  as  would  exonerate  the  defendant 
from  the  consequences  of  its  negligence  or  want  of  care.  On  the 
contrary,  his  presence  there,  under  such  circumstances,  would  render 
it  the  duty  of  the  company,  in  view  of  the  fact  that  he  was  there, 
to  exercise  the  highest  care  required  for  his  safety,  and  to  refrain 
from  the  slightest  neglect  tending  to  his  injury.  Dunn  v.  Grand 
Trunk  Railway,  supra;  Isbel  v.  N.  Y.  &  New  Haven  Railway  Co., 
27  Conn.  303;  2  Redfield  Railway  Cases,  474-502. 

Still,  again,  admitting  that  the  plaintiff  was  cognizant  of  the 
rule  of  the  company  excluding  passengers  from  the  baggage  car, 
and  that  he  persisted  in  remaining  there  without  the  permission  or 
consent,  yet  with  the  knowledge  of  the  conductor,  and  was  guilty 
of  negligence  in  so  doing,  this  negligence  would  not  prevent  his 
recovering  unless  it  were  contributory  to  the  injury  received.  To 
be  thus  contributory,  in  a  legal  sense,  it  must  be  a  proximate  cause 
of  the  injury,  —  that  is,  it  must  have  been  near  in  the  order  of 
causation  (Shearman  and  Redfield  on  Negligence,  37-38),  and  it  must 
have  contributed,  to  some  extent,  directly  to  the  injury,  and  must 
have  been  not  a  mere  technical  or  formal  wrong  contributing  either 
incidentally  or  remotely,  or  not  at  all,  to  the  injury.  Isbel  v.  N.  Y. 
andN.  H.  R.  R,  Co.,  supra:  2  Redfield  R,  Cases,  485-490.     Now, 


TICKETS.  1029 

notwithstanding  the  fault  or  negligence  of  the  plaintiff  in  remaining 
in  the  baggage  car,  and  admitting  that  the  baggage  car  was  a  pi 
of  greater  danger  than   the  passenger  car,  and  that  the  plaintiff 
would  not  have  been  injured  if  he  had  not  been  there,  his  pi 
there  with  the  knowledge  of  the  conductor  made  it  defendant's  duty 
to  exercise  care  to  avoid  injuring  him  while  I  and  if  injury 

resulted  from  want  of  such  care,  the  defendant  is  liable,  Esbel  r. 
N.  Y.  and  N.  H.  E.  Co.,  supra.  If  the  injury  resulted  from  want  of 
such  care,  i.e.,  negligence  on  defendant's  part  —  such  negl 
and  not  plaintiff's  fault  in  being  in  the  baggage  car,  would  be  the 
immediate  and  direct  —  the  more  proximate  —  cause  of  the  injury, 
and  defendant  would  be  responsible  for  the  same.  Isbel  v.  N.  Y. 
and  N.  H.  R.  Co.  supra;  C.  C.  and  C.  R.  Co.  v.  Elliott,  4  Ohio 
State,  476;  Shearman  and  Redfield  on  Negligence,  §  25;  Keith  v. 
Pinkham,  43  Me.  503;  Huelsenkamp  v.  Citizens' Railway  Co..  37 
Mo.  537;  Richmond  v.  Sac.  R.  R.  Co.,  18  Cal.  351;  Lackawanna 
and  Bloomsburg  R.  Co.  v.  Chenewith,  52  Penna.  386. 

In  our  opinion  there  was  evidence  in  the  case  for  the  considera- 
tion of  the  jury  in  reference  to  these  views  of  the  law,  and  from 
which  they  might  reasonably  find  that  plaintiff's  negligence  in  this 
case  was  not  contributory  to  the  injury  received  by  him. 

These  considerations  dispose  of  the  case,  the  result  being  that  the 
order  denying  a  new  trial  is  affirmed. 


7.    TICKETS. 

JEROME   v.  SMITH. 

48  Vt.  230.     1876. 

Case  for  ejecting  plaintiff  from  defendants'  cars. 
Wheeler,  J.  ...••••• 

As  the  case  states  that  certain  facts  appeared  on  the  trial  and 
others  were  found  by  special  verdict,  it  hangs  here  upon  the  correct- 
ness of  the  judgment  rendered  upon  all  these  facts.  If  on  t 
facts  the  plaintiff  was  wrongfully  in  the  defendants'  cars  at  tin- 
time  he  was  expelled,  the  judgment  was  right,  otherwise  not.  The 
right  to  eject  for  non-payment  of  fare  is  given  by  statute,  if  statute 
authority  can,  in  addition  to  common-law  rights  in  such  c 
any  ground  be  necessary.  The  real  question  is,  whether  there  was. 
in  fact,  such  non-payment.  When  the  plaintiff  bought  the  ticket 
at  Worcester,  with  coupons  attached,  entitling  the  holder  to  ride 
over  that  part  of  defendants'  road  he  was  riding  on  when  I,  lie 

did  not  make  any  agreement  with  them  or  their  agents  thai   they 
would  carry  him  in  person  over  it  as  carriers  agree  to  carry  particu- 


1030  CARRIERS    OF   PASSENGERS. 

lar  packages  over  their  routes;  but  he  bought  what  was  symbolic 
evidence  of  a  right  that  whoever  should  have  it  might  ride,  and 
what  any  other  person  could  use  as  well  as  he.  The  title  to  it,  and 
eight  to  a  passage  upon  it,  would  pass  by  mere  delivery,  and  who- 
ever should  have  it  could  pay  the  fare  of  a  passenger  with  it  by 
delivering  it  in  payment;  but  the  mere  fact  of  having  had  it,  with- 
out having  it  to  deliver  in  payment  on  reasonable  request,  would 
not  entitle  any  one  to  the  passage,  any  more  than  having  a  sufficient 
amount  of  money  to  pay  the  fare  with,  without  paying  it,  would. 
When  he  entered  on  his  passage  over  the  defendants'  road,  he  had 
the  coupon  and  tickets  which  would  pay  his  fare  throughout  his 
intended  journey  over  their  line,  and  if  he  had  delivered  the  coupon 
to  the  conductor  in  payment  of  his  fare  for  the  whole  of  that 
journey,  he  would  have  had  the  right  to  ride  the  whole  distance 
without  doing  or  paying  anything  more.  But,  according  to  the 
facts,  the  conductor  did  not  take  the  coupon  as  an  equivalent  for 
the  full  passage,  but  only  for  the  passage  so  far  as  he  was  to  go  as 
conductor,  and  gave  the  plaintiff  the  white  check  as  evidence  in  lieu 
of  the  coupon,  more  symbolic,  but  equally  effective  of  the  right  to 
a  passage  the  rest  of  the  way.  As  the  plaintiff  did  not  know  what 
the  symbols  of  the  check  each  meant,  so  probably  he  did  not  know 
what  those  on  the  ticket  and  those  on  the  coupon,  respectively, 
meant;  but,  however  that  may  have  been,  such  checks  are. in  com- 
mon use  among  conductors  on  railroads,  as  evidence  of  the  right  to 
a  passage,  and  the  case  not  only  does  not  show  but  that  he  under- 
stood what  the  purpose  and  effect  of  this  one  was,  as  persons  ordi- 
narily would,  but  does  impliedly  show  that  he  did  so  understand, 
because  it  appears  that  he  searched  for  it  to  use  to  pay  his  fare  with 
when  he  saw  the  next  conductor  approaching  him  collecting  fares. 
And  although  it  was  delivered  to  him  only  by  placing  it  in  his  hat- 
band, as  he  did  not  object,  that  was  as  much  a  delivery  to  him  as 
placing  it  in  his  lap  or  in  his  hand  would  have  been,  and  was  suffi- 
cient to  invest  him  with  the  ownership  of  it,  and  to  bind  him  to 
take  care  of  it  as  his  own  property.  While  he  held  that  check  he 
had  not  paid  his  fare  beyond  where  the  conductor  was  to  go,  but 
had  what  would  pay  it,  or  that  of  any  other  person,  the  rest  of  the 
way.  If  the  conductor  had  not  given  him  anything,  or  had  given 
him  something  that  he  could  not  use  to  pay  his  fare  with,  he  would 
have  received  no  equivalent  for  his  coupon,  and  would  have  still 
been  entitled  to  his  passage  for  an  equivalent.  But  as  it  was  what 
he  took  was  as  good  as  the  coupon  for  the  rest  of  his  journey,  and 
with  it  he  was  situated  the  same  as  if  he  had  kept  the  coupon,  or 
if  he  had  bought  the  check  of  a  station-agent  or  conductor  at  the 
commencement  of  his  journey,  as  evidence  of  his  right  to  a  passage, 
and  shown  it  to  one  conductor  and  was  keeping  it  to  show  to  the 
next  one.  In  either  case,  the  duty  of  keeping  it  safely  would  be 
upon   him.      When  he  had   lost  it,  the  loss  was  his,  and  he  was 


.    TICKETS. 

situated  as  he  would  have  been  if  the  coupon  had  been  returned  to 
him,  and  he  had  lost  that,  and  as  any  one  would  be  who  had  bought 
a  ticket  to  an  opera  or  a  lecture,  or  that  would  entitle  the  holder  of 
it  to  any  other  privilege,  and  had  lost  it.  Having  lost  it,  he  was 
called  upon  by  the  proper  conductor  to  pay  his  fare.  Be  had  not 
any  ticket  or  check  to  pay  it  with,  and  refused  to  pay  it  in  moi 
consequently,  there  was  a  refusal  to  pay  it  at  all,  and  the  conductor 
rightfully  expelled  him  from  the  train. 

The  books  and  cases  cited  in  behalf  of  the  plaintiff  are  not,  ap- 
parently, contrary  to  these  views.  Thus,  in  Pittsburgh,  etc.,  1;.  1;. 
v.  Hennigh,  39  Incl.  509,  the  first  conductor  took  up  the  ticket  and 
gave  no  check  nor  anything  showing  a  right  to  a  passage,  and  the 
next  one  ejected  the  passenger  for  want  of  anything  to  show  pay- 
ment. The  company  was  very  properly  held  liable  for  thai  expul- 
sion. In  Palmer  v.  Charlotte,  etc.  R.  It.  Co.,  3  S.  <'.  580,  the 
plaintiff  had  a  ticket  which  gave  him  the  right  to  stop  over  at 
Columbia-,  the  conductor  took  it  up  and  gave  him  a  check  that  did 
not  show  any  right  to  stop  over.  He  stopped  over,  and,  on  presen- 
tation of  the  check  on  the  next  train,  was  expelled.  The  courl  said 
that  the  conductor  had  no  right  to  take  up  the  ticket  unless  he 
placed  the  passenger  in  as  good  condition  as  he  was  in  before,  by 
giving  a  check  or  token  evidencing  his  right  to  stop  over  and  take 
a  subsequent  train.  In  Maroney  v.  Old  Colony  Ru  P.  Co.,  106 
Mass.  153,  the  plaintiff  had  a  ticket  that  was  purcdiased  of  the 
agent  of  the  defendants,  and  was  apparently  good  for  any  regular 
train,  and  he  was  ejected  from  a  regular  train  because  by  sonn-  rule, 
of  which  he  had  no  notice,  it  was  intended  only  for  a  special  train. 
In  Hamilton  v.  Third  Av.  R.  R.  Co.,  53  N.  Y.  25.  the  plaintiff  paid 
his  fare  and  received  nothing  to  sIioav  he  was  entitled  to  a  passage, 
and  was  ejected  before  he  had  tli£  passage  for  which  he  had  ex- 
pressly paid.  In  Moore  v.  Fitchburg  R.  R.  Co..  1  Gray,  465,  the 
plaintiff  had  bought  a  ticket  and  given  it  up  on  his  passage  without 
receiving  any  evidence  of  a  right  to  a  passage  in  return,  and  was 
expelled  before  he  had  the  rest  of  his  passage.  The  other  hooks 
and  cases  cited  for  the  plaintiff,  so  far  as  observed,  ndate  to  the 
general  rules  of  liability  of  carriers  in  respect  to  the  prisons  and 
baggage  of  passengers  who  have  with  money  or  by  tickets  paid  for 
and  entered  upon  passage  for  some  particular  journey,  and  do  not 
bear  directly  upon  the  question  in  this  case.  On  the  other  hand, 
numerous  authorities  among  those  cited  in  behalf  of  the  defendants 
sustain  these  views  more  or  less  directly.     Among  tho£  I  nearly 

in  point  are  Hamilton  v.  N.  V.  C.  R.  P-  5J  N.  Y.  100;   Stand. >h  v. 
Narragansett  Steamship  Co.,  Ill    Muss.  512;   Townsend    v.    M.    Y. 
C   &  H   R   R.  R.  Co.,  56  N.  Y.  295  [1057];  Duke  and  Wi1 
W.  R.  R.  Co.,    14  Up.  Can.  C.  B.  369.     According  to  these  con- 
clusions the  judgment  for  the  defendants  was  con. 


1032  CARRIERS    OF   PASSENGERS. 


STATE   v.    OVERTON. 
24  N.  J.  L.  435.     1854. 

The  Chief  Justice.  The  defendant  was  convicted  in  the  Oyer 
and  Terminer  of  Morris,  of  an  assault  and  battery  upon  Theodore 
A.  Canfield.  A  motion  having  been  made  for  a  new  trial,  upon  the 
ground  that  the  charge  of  the  court  was  erroneous,  and  that  the 
verdict  was  against  law  and  contrary  to  the  evidence,  the  question 
was  reserved  and  submitted  to  this  court  for  its  advisory  opinion. 

The  material  facts  are,  that  on  the  18th  of  March,  1853,  Canfield, 
the  prosecutor,  procured  at  the  office  of  the  Morris  &  Essex  Railroad 
Company,  in  Newark,  a  passenger's  ticket  to  Morristown.  He  paid 
for  the  ticket  the  regular  fare  from  Newark  to  Morristown,  and  took 
his  seat  in  the  cars.  At  Millville,  one  of  the  way  stations  upon 
the  road,  he  left  the  train.  Before  leaving  the  cars  he  received 
from  Van  Pelt,  the  conductor  of  that  train,  a  conductor's  check, 
upon  which  was  printed  the  words  "conductor's  check  to  Morris- 
town." ■  About  an  hour  afterwards  Canfield  took  the  next  train  of 
cars  which  passed  the  Millville  Station  for  Morristown,  of  which 
train  Overton,  the  defendant,  was  conductor.  Upon  being  asked  by 
the  conductor  for  his  fare,  Canfield  tendered  in  payment  the  check 
received  by  him  from  Van  Pelt,  the  conductor  of  the  train  in  which 
Canfield  had  first  taken  his  seat;  this  the  conductor  refused  to 
accept,  and  the  passenger  refusing  to  pay  his  fare,  and  declining  to 
leave  the  cars  upon  request,  he  was,  without  unnecessary  force  or 
violence,  and  without  personal. injury,  removed  by  the  defendant 
from  the  cars,  at  one  of  the  way  stations  upon  the  road,  before 
reaching  Morristown.  The  company  furnished,  at  the  office  in 
Newark,  through  tickets  to  Morristown,  and  also  tickets  to  Mill- 
ville and  other  way  stations  upon  the  route.  The  cost  of  a  ticket 
directly  from  Newark  to  Morristown  was  less  than  the  cost  of  a 
ticket  to  Millville  and  another  ticket  thence  to  Morristown,  Some 
years  previous  to  the  transaction,  the  company  had  given  public 
notice  that  conductor's  checks  were  not  transferable  from  one  train 
to  another. 

It  was  not  questioned  upon  the  trial  that  a  railroad  company  are 
not  bound  to  carry  a  passenger,  unless  upon  payment  or  tender  of 
his  fare;  that  they  may,  in  such  case,  either  refuse  to  permit  him 
to  enter  the  cars,  or  having  entered  them,  they  may  require  him  to 
leave  them  before  the  termination  of  the  journey;  and  that  if  he 
refuses  to  leave,  they  may  remove  him  at  a  suitable  time  and  place, 
using  no  unnecessary  force.  The  ground  upon  which  the  convic- 
tion was  asked  was  that,  in  fact,  the  passenger  had  paid  his  fare; 


TICKETS.  Id 

that  he  offered  to  the  conductor  competent  and  satisfactory  evidence 
of  that  fact,  and  that,  consequently,  the  act  of  the  conductor  in 
removing  him  from  the  cars  was  illegal. 

Had  the  passenger  in  fact  paid  his  fare,  or  was  the  check  ;_ri 
by  the  conductor  of  another  train,  evidence  of  that  fact?  He  had, 
it  is  admitted,  paid  his  fare  to  Morristown,  by  the  train  in  which 
he  originally  took  his  passage.  Did  that  authorize  him  to  leave  the 
train  at  any  point  upon  the  road,  and  to  resume  his  place  for  his 
original  destination  in  a  different  train,  at  his  pleasure? 

The  question  is  obviously  a  question  of  contract  between  the  pas- 
senger and  the  company.  By  paying  for  a  passage,  ami  procurii 
a  ticket  from  Newark  to  Morristown,  the  passenger  acquired  the 
right  to  be  carried  directly  from  one  point  to  the  other,  without 
interruption.  He  acquired  no  right  to  be  transported  from  one 
point  to  another  upon  the  route,  at  different  times  and  by  different 
lines  of  conveyance,  until  the  entire  journey  was  accomplished. 
The  company  engaged  to  carry  the  passenger  over  the  entire  route 
for  a  stipulated  price.  But  it  was  no  part  of  their  contract  that 
they  would  suffer  him  to  leave  the  train,  and  to  resume  his  seat  in 
another  train,  at  any  intervening  point  upon  the  road.  This  con- 
tract with  the  passenger  would  have  been  executed,  if  they  had 
proceeded  directly  to  Morristown,  without  stopping  at  any  inter- 
vening point;  nor  could  he  have  complained  of  a  violation  of  con- 
tract, if  no  other  train  had  passed  over  the  road,  in  which  he  might 
have  completed  his  journey.  If  the  passenger  chose  voluntarily  to 
leave  the  train  before  reaching  his  destination,  he  forfeited  all 
rights  under  his  contract.  The  company  did  not  engage,  and  were 
not  bound  to  carry  him  in  any  other  train,  or  at  any  other  time, 
over  the  residue  of  the  route. 

The  production  of  the  conductor's  ticket  in  nowise  altered  the 
case  or  affected  the  terms  of  the  original  contract.  It  was  evidence, 
indeed,  that  the  holder  had  paid  his  passage,  and  was  entitled  to  be 
carried  to  Morristown.  But  how  and  when?  Why,  clearly,  accord- 
ing to  the  terms  of  his  original  contract.  It  was  evidence  that  lie 
had  paid  his  fare  to  Morristown,  and  was  entitled  to  be  carried 
there  by  the  train  in  which  he  had  originally  taken  his  passa 
for  that  purpose  alone  it  was  given  to  him;  that  train  he  had  left 
voluntarily,  without  the  knowledge  or  assent  of  the  conductor,  and 
without  giving  up  his  check.  The  check  was  therefore  value], 
the  right,  of  which  it  was  the  evidence,  the  passenger  had  volun- 
tarily relinquished. 

This  is  the  clear  legal  effect  of  the  contract  between  the  company 
and  the  passenger,  in  the  absence  of  any  evidence  to  the  contrary. 
If  the  passenger  insists  that  under  his  contract,  by  virtue  of 
usage  or  the  custom  upon  the  road,  he  is  entitled  to  he  carried 
his   pleasure  either  by  one  or  by  different  trains,   and  at  different 
times,  over  various  portions  of  his  journey,  the  burden  of  proof  was 


1034  CAKEIEKS   OF   PASSENGEKS. 

upon  the  State.  No  such  usage  was  established,  although  some 
evidence  was  offered  upon  the  trial,  for  the  purpose  of  proving  it. 

The  defendant  offered  evidence  to  show  that  some  years  previous 
to  the  transaction  the  company  had  adopted  a  rule,  and  given  public 
notice,  that  the  conductor's  check  was  not  transferable  from  one 
train  to  another.  This,  properly  considered,  is  a  simple  warning  to 
passengers,  that  they  would  be  carried  strictly  according  to  the 
terms  of  their  contract.  Even  if  a  previous  custom  had  been  proved 
(which  it  was  not)  for  passengers  to  be  carried  over  different  parts 
of  their  journey  by  different  trains,  it  was  a  mere  warning  that  in 
the  future  the  custom  would  not  prevail.  Upon  the  trial  this  action 
of  the  company  was  presented  to  the  court,  and  by  them  submitted 
to  the  jury,  as  if  it  were  a  by-law  or  regulation  of  the  company 
affecting  the  rights  of  passengers,  upon  the  reasonableness  and  con- 
sequent validity  of  which  the  jury  were  to  decide.  The  court  clearly 
intimated  its  opinion,  that  the  regulation  of  the  company  was  valid, 
but,  under  the  influence  of  the  ruling  of  another  tribunal,  submitted 
the  validity  of  the  regulation  as  a  matter  of  fact  to  the  jury. 

In  this  the  court  erred.  Here  was  no  evidence  of  any  by-law,  or 
of  any  regulation  made  by  the  company,  affecting  the  rights  of  pas- 
sengers ,  upon  the  reasonableness  or  validity  of  which  either  court 
or  jury  were  called  upon  to  decide.  The  right  of  the  passenger 
rested  upon  his  contract.  The  notice  given  by  the  company  was  in 
strict  conformity  with  his  rights  under  the  contract.  Upon  the 
evidence  in  the  cause,  if  no  proof  had  been  offered  of  the  notice 
given  by  the  company,  that  conductor's  checks  were  not  transfer- 
able, the  defendant  would  have  been  entitled  to  a  verdict.  Proof 
of  that  notice  certainly  placed  him  in  no  worse  position.  The  com- 
pany have  an  unquestionable  right,  under  their  charter,  independent 
of  any  by-law  or  regulation,  to  charge  different  rates  by  different 
trains,  or  a  higher  price  for  travelling  over  the  road  as  a  way-pas- 
senger, by  different  journeys,  than  for  a  through  passenger.  This 
was  in  reality  all  that  was  involved  in  the  evidence  of  the  action 
by  the  company,  as  proved  upon  the  trial.  The  case  does  not  fall 
within  the  operation  of  the  principle,  by  which  it  was  held  to  be 
controlled. 


KEELEY   v.   BOSTON   &   MAINE   E.    CO. 

67  Me.  163.     1878. 

Case,  setting  out  in  substance  and  in  extended  legal  form  and 
phraseology  that  the  defendants  were  common  carriers  of  passen- 
gers ;  that  the  plaintiff  purchased  two  tickets,  one  of  the  following 


TICKETS. 

form:  "163.    Issued  by  Grand  Trunk   1;.  R.,  and  Boston  &  Maine 
R.  R.,  Portland  to  Boston.     Valid  only  within  seven  days.     I 
class.    Form  39.    J.  Hickson,  General  Manager,  3376,"  and  ai 
similar  in  form,  but  which  he  is  unable  to  ibe;  thai  he  i 

the  defendants'  cars  at  Portland  for  Boston,  whither  hi 
that  he  gave  up  the  "  similar"  ticket  on  his  passage  to  Boston,  when 
the  defendants  promised  and  assured  the  plaintiff  that 
"described"  was  good  for  a  passage  for  him  over  the   defenda 
railway  from  Boston  to  Portland;  that  on  the  26th  day  of  Janu 
1876,  at  Boston,  he  entered  the  cars  to  be  conveyed  to  Portland, 
was  in  pursuance  of  said  payments  and  ticket  (described;  con  v. 
to  South  Lawrence,  where  he  was  ordered  out;  that  he  re-ento 
and  was  conveyed  to  Haverhill;  that  the  defendants  then  ordi 
him  to  leave  the  cars  and  ejected  him  therefrom  and  refused   to 
cany  him  to  Portland. 

The  plea  was,  not  guilty. 

Peters,  J.  This  case  presents  this  question:  Does  a  railroad 
ticket,  with  the  words,  "Portland  to  Boston"  imprinted  on  it,  pur- 
chased in  Portland  under  no  contract  other  than  what  is  inferable 
from  the  ticket  itself,  entitle  the  holder  to  a  passage,  on  the  road  of 
the  company  issuing  it,  from  Boston  to  Portland?  Does  a  tickel 
one  way  give  the  right  to  pass  the  other  way  instead  ?  We  find  no 
case  deciding  that  it  does,  nor  do  we  assent  to  the  proposition  that 
the  law  should  be  considered  to  be  so.  Such  is  not  the  contract, 
which  the  ticket  is  evidence  of. 

It  has  been  held  that,  if  a  passenger  purchases  a  ticket  with  a 
notice  upon  it  that  it  is  "good  for  one  day  only  "  in  the  absence  of 
a  statutory  regulation  to  the  contrary,  he  can  travel  upon  such 
ticket  only  on  that  day.  State  v.  Campbell,  32  N.  J.  L.  309j 
Shedd  v.  Troy  &  Boston  Railroad,  40  Vt.  88;  Johnson  v.  Concord 
Railroad,  46  N.  H.  213;  Boston  &  Lowell  Railroad  Co.  v.  Proctor, 
1  Allen,  267;  1  Redf.  on  Railways,  99,  and  notes.  It  has  been 
held  also  that  if  the  words  "good  upon  one  train  only  "  are  prii 
upon  a  ticket,  the  holder  is  not  entitled  to  change  from  one  train  to 
another  after  the  passage  is  begun.  Cheney  v.  Boston  &  Maine  K. 
R.  Co.,  11  Met.  121.  Redf.  on  Railways,  supra.  If  such  notices 
confine  a  passenger  to  a  certain  day  and  a  particular  train,  why  is 
there  not  as  much  reason  to  say  in  this  case  that  the  notice  upon  tin- 
ticket  must  restrict  the  holder  of  it  to  go  in  the  particular  direction 
named  ? 

This  position  is  not  weakened  by  the  suggestion  that  the  company 
can  transport  the  passenger  as  cheaply  and  easily  one  way  as  the 
other.  If  it  were  so,  it  would  be  no  answer.  A  person  who  au- 
to sell  to  another,  merchandise  of  one  kind,  might  find  it  to  his 
profit  and  advantage  to  deliver  merchandise  of  another  kind,  but 
he  cannot  be  compelled  to  do  so. 

So  a  railroad  could  often,  no  doubt,  transport  a  passengt  on« 


1038  CARRIERS   OF   PASSENGERS. 

venieutly  on  one  train  as  another  and  on  one  day  as  another;  still, 
as  before  seen,  there  is  no  obligation  to  do  so.  But  it  does  not 
follow  that  a  railroad  corporation  can  carry  passengers  as  well  for 
itself  the  one  way  as  the  other.  There  may  be  a  difference  arising 
from  various  considerations.  There  may  be  more  travellers  and 
more  freight  to  be  carried  one  way  than  the  other.  It  may  be  more 
expensive.  There  may  be  more  risk  in  the  one  passage  than  the 
other.  The  up  train  may  go  more  by  daylight  and  the  down  train 
more  by  night.  That  such  considerations  as  these  might  arise  in  a 
case,  whether  in  this  instance  they  exist  or  not,  helps  to  demon- 
strate that  a  ticket  one  way  is  a  different  thing  from  a  ticket  the 
other.  Practically ,  the  doctrine  set  up  by  the  plaintiff,  if  allowed 
to  prevail,  would  affect  the  defendants  injuriously.  It  is  well 
known  that  through  tickets  are  cheaper  -pro  rata  than  the  way  or 
local  fares.  This  fact  has  led  to  a  practice  on  the  part  of  way 
travellers  of  buying  through  tickets  and  using  them  over  a  part  of 
the  route  and  selling  them  for  the  balance  of  the  distance,  so  as  to 
make  a  saving  from  the  regular  prices  charged.  It  is  easily  seen 
that,  if  a  passenger  is  permitted  to  ride  in  either  direction  on  a 
ticket,  it  increases  the  chances  for  carrying  on  this  sort  of  specu- 
lation against  the  interests  of  the  road. 

It  does  not  avail  the  argument  for  the  plaintiff  at  all,  that  before 
this  he  had  passed  over  the  road  upon  other  tickets  in  a  direction 
the  reverse  of  that  advertised  upon  their  face;  nor  is  it  of  any 
importance  that  another  conductor  upon  another  train  at  another 
time  expressed  an  opinion  to  him  that  his  ticket  would  be  for  either 
direction  good.  The  contract  is  not  shorn  of  a  particular  stipula- 
tion merely  because  it  is  not  always  enforced.  Nor  could  such  con- 
ductor in  such  manner  bind  the  corporation,  and  it  could  not  have 
been  understood  by  the  plaintiff  that  he  undertook  to  do  so.  The 
conductor  merely  expressed  an  opinion  about  the  matter  which  he 
at  that  time  had  no  business  with.  The  plaintiff  had  ample  oppor- 
tunity to  purchase  another  ticket,  and  should  have  done  so.  Wake- 
field v.  South  Boston  Railroad,  117  Mass.  544. 

Plaintiff  nonsuit. 


AUERBACH  v.    N.  Y.    C.    &  H.   R.    R.   CO. 

89  N.  Y.  281.     1882. 

Earl,  J.  This  action  was  brought  by  the  plaintiff  to  recover 
damages  for  being  ejected  from  one  of  the  defendant's  cars  while  he 
was  riding  therein  as  a  passenger.  He  was  nonsuited  at  the  trial, 
and  the  judgment  entered  upon  the  nonsuit  was  affirmed  at  the 
General  Term.     The  material  facts  of  the  case  are  as  follows:  The 


TICKETS.  1037 

plaintiff,  being  in  St.  Louis  on  the  21st  day  of  September,  1877, 
purchased  of  the  Ohio  and  Mississippi  Railway  Company  a  ticket 
for  a  passage  from  St.   Louis  over  the  several  railroads  mentioned 
in  coupons  annexed  to  the  ticket  to  the  city  of  New  York.     It  was 
specified  on  the  ticket  that  it  was  "  good  for  one  continuous  passage 
to  point  named  on  coupon  attached;  "  that  in  selling  the  ticket  for 
passage  over  other  roads  the  company  making  the  sale  acted  only  as 
agent  for  such  other  roads,  and  assumed  no  responsibility  beyond 
its   own  line ;  that  the  holder  of  the  ticket  agreed  with  the  respec- 
tive companies  over  whose  roads  he  was  to  be  carried  to  use  the 
same  on  or  before  the  26th  day  of  September  then  instant,  and  that, 
if  he  failed  to  comply  with  such  agreement,  either  of  the  companies 
might  refuse  to  accept  the  ticket,  or  any  coupons  thereof,  and  de- 
mand the  full  regular  fare  which  he  agreed  to  pay.     He  left  St. 
Louis  on  the  day  he  bought  the  ticket,  and  rode  to  Cincinnati,  and 
there  stopped  a  day.     He  then  rode  to  Cleveland  and  stayed  there  a 
few  hours,  and  then  rode  on  to  Buffalo,  reaching  there  on  the  24th, 
and  stopped  there  a  day.     Before  reaching  Buffalo  he  had  used  all 
the  coupons  except  the  one  entitling  him  to  a  passage  over  the  de- 
fendant's road  from  Buffalo  to  New  York.     The  material  part  of 
the  language  on  that  coupon  is  as  follows :  — 

"Issued  by  Ohio  and  Mississippi  Railway  on  account  of  New 
York  Central  and  Hudson  River  Railroad  one  first-class  passage, 
Buffalo  to  New  York."  , 

Being  desirous  of  stopping  at  Rochester,  the  plaintiff  purchased 
a  ticket  over  the  defendant's  road  from  Buffalo  to  Rochester,  and 
upon  that  ticket  rode  to  Rochester  on  the  25th,  reaching  there  in 
the  afternoon.  He  remained  there  about  a  day,  and  in  the  after- 
noon of  the  26th  of  September  he  entered  one  of  the  cars  upon  the 
defendant's  road  to  complete  his  passage  to  the  city  of  New  York. 
He  presented  his  ticket,  with  the  one  coupon  attached,  to  the  con- 
ductor, and  it  was  accepted  by  him,  and  was  recognized  as  a  proper 
ticket  and  punched  several  times,  until  the  plaintiff  reached  Hudson 
about  three  or  four  o'clock,  a.  m.,  September  27th,  when  the  con- 
ductor in  charge  of  the  train  declined  to  recognize  the  ticket  on  the 
ground  that  the  time  had  run  out,  and  demanded  three  dollars  fare 
to  the  city  of  New  York,  which  the  plaintiff  declined  to  pay.  The 
conductor  with  some  force  then  ejected  him  from  the  car. 

The  trial  judge  nonsuited  the  plaintiff  on  the  ground  that  the 
ticket  entitled  him  to  a  continuous  passage  from  Buffalo  to  New 
York,  and  not  from  any  intermediate  point  to  New  York.  The 
General  Term  affirmed  *  the  nonsuit  upon  the  ground  that,  although 
the  plaintiff  commenced  his  passage  upon  the  26th  of  September,  he 
could  not  continue  it  after  that  date  on  that  ticket. 

We  are  of  opinion  that  the  plaintiff  was  improperly  nonsuited. 
The  contract  at  St.  Louis,  evidenced  by  the  ticket  and  coupons 
there  sold,  was  not  a  contract  by  any  one  company  or  by  all  the 


1038  CARRIERS    OF   PASSENGERS. 

companies  named  in  the  coupons  jointly  for  a  continuous  passage 
from  St.  Louis  to  New  York.  A  separate  contract  was  made  for  a 
continuous  passage  over  each  of  the  roads  mentioned  in  the  several 
coupons.  Each  company  through  the  agent  selling  the  ticket  made 
a  contract  for  a  passage  over  its  road,  and  each  company  assumed 
responsibility  for  the  passenger  only  over  its  road.  No  company 
was  liable  for  any  accident  or  default  upon  any  road  but  its  own. 
This  was  so  by  the  very  terms  of  the  agreement  printed  upon  the 
ticket.  Herice  the  defendant  is  not  in  a  position  to  claim  that  the 
plaintiff  was  bound  to  a  continuous  passage  from  St.  Louis  to  New 
York,  and  it  cannot  complain  of  the  stoppage  at  Cincinnati  and 
Cleveland.  Hutchinson  on  Carriers,  sec.  579;  Brooke  v.  The  Grand 
Trunk  Railway  Co.,  15  Mich.  332. 

But  the  plaintiff  was  bound  to  a  continuous  passage  over  the 
defendant's  road;  that  is,  the  plaintiff  could  not  enter  one  train  of 
the  defendant's  cars  and  then  leave  it,  and  subsequently  take 
another  train,  and  complete  his  journey.  He  was  not,  however, 
bound  to  commence  his  passage  at  Buffalo.  He  could  commence  it 
at  Rochester  or  Albany,  or  any  other  point  between  Buffalo  and 
New  York,  and  then  make  it  continuous.  The  language  of  the  con- 
tract and  the  purpose  which  may  be  supposed  to  have  influenced  the 
making  of  it  do  not  require  a  construction  which  would  make  it 
imperative  upon  a  passenger  to  enter  a  train  at  Buffalo.  No  pos- 
sible harm  or  inconvenience  could  come  to  the  defendant  if  the 
passenger  should  forego  his  right  to  ride  from  Buffalo  and  ride  only 
from  Rochester  or  Albany.  The  purpose  was  only  to  secure  a  con- 
tinuous passage  after  the  passenger  had  once  entered  upon  a  train. 
On  the  26th  of  September  the  plaintiff  having  the  right  to  enter  a 
train  at  Buffalo,  it  cannot  be  perceived  why  he  could  not,  with  the 
same  ticket,  rightfully  enter  a  train  upon  the  same  line  at  any 
point  nearer  to  the  place  of  destination. 

When  the  plaintiff  entered  the  train  at  Rochester  on  the  after- 
noon of  the  26th  of  September,  and  presented  his  ticket,  and  it  was 
accepted  and  punched,  it  was  then  used  within  the  meaning  of  the 
contract.  It  could  then  have  been  taken  up.  So  far  as  the  plain- 
tiff was  concerned,  it  had  then  performed  its  office.  It  was  there- 
fore left  with  him  not  for  his  convenience,  but  under  regulations 
of  the  defendant  for  its  convenience  that  it  might  know  that  his 
passage  had  been  paid  for.  The  contract  did  not  specify  that  the 
passage  should  be  completed  on  or  before  the  26th,  but  that  the 
ticket  should  be  used  on  or  before  that  day,  and  that  it  was  so  used 
it  seems  to  us  is  too  clear  for  dispute. 

The  language  printed  upon  the  ticket  must  be  regarded  as  the 
language  of  the  defendant,  and  if  it  is  of  doubtful  import  the  doubt 
should  not  be  solved  to  the  detriment  of  the  passenger.  If  it  had 
been  intended  by  the  defendant  that  the  passage  should  be  con- 
tinuous from  St.   Louis  to  New  York,  or  that  it  should  actually 


TICKETS.  1039 

commence  at  Buffalo  and  be  continuous  to  the  city  of  New  York,  or 
that  the  passage  should  be  completed  on  or  before  the  26th  of  Sep- 
tember, such  intention  should  have  been  plainly  expressed  and  not 
left  in  such  doubt  as  might  and  naturally  would  mislead  the 
passenger. 

We  have  carefully  examined  the  authorities  to  which  the  learned 
counsel  for  the  defendant  has  called  our  attention,  and  it  is  suffi- 
cient to  say  that  none  of  them  are  in  conflict  with  the  views  above 
expressed. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs 
to  abide  the  event. 


BOYLAN  v.    HOT   SPRINGS   R.    CO. 
132  U.  S.  146.     1889. 

This  was  an  action  of  assumpsit  against  a  railroad  corporation  by 
a  person  who,  after  taking  passage  on  one  of  its  trains,  was  forcibly 
expelled  by  the  conductor. 

At  the  trial  in  the  Circuit  Court,  the  plaintiff  testified  that  on 
March  18.  1882,  he  purchased  at  the  office  of  the  Wabash,  St.  Louis, 
and  Pacific  Railway  Company  in  Chicago  a  ticket  for  a  passage  to 
Hot  Springs  and  back  (which  is  copied  in  the  margin,1  and  which, 
as  was  alleged  in  the  declaration  and  appeared  upon  the  face  of  the 
ticket,  was  then  signed  by  him  as  well  as  by  the  ticket  agent,  and 
witnessed  by  a  third  person),  and  upon  this  ticket  travelled  on  the 
defendant's  railroad  to  Hot  Springs. 

He  was  asked  by  his  counsel  when  he  first  actually  knew  that  the 
ticket  required  him  to  have  it  stamped  at  Hot  Springs.  The  ques- 
tion was  objected  to  by  the  defendant,  and  ruled  out  by  the  court. 

He  further  testified  that  on  April  19,  1882,  when  leaving  Hot 
Springs  on  his  return  to  Chicago,  he  went  to  the  baggage-office  and 
requested  the  baggage-master  to  check  his  baggage,  and,  on  his 
asking  to  see  the  ticket,  showed  it  to  him,  and  he  thereupon  punched 
the  ticket,  checked  the  baggage,  and  gave  him  the  checks  for  it;  and 
also  that  the  gateman  asked  to  see  the  ticket,  and  he  showed  it  to 
him,  and  then  passed  through  the  gate  and  took  his  seat  in  the  cars. 
This  testimony  was  objected  to  by  the  defendant,  on  the  ground 
that  no  statement  or  action  of  the  baggage-master,  or  of  the  gate- 
man,  would  constitute  a  waiver  of  any  of  the  written  conditions  of 
the  contract;  and  it  was  admitted  by  the  court,  subject  to  the 
objection. 

The  plaintiff  then  testified  that  soon  after  leaving  Hot  Springs 
the  conductor,    in  taking  the  tickets  of  passengers,   came   to  him. 

1  [The  terms  of  the  ticket  sufficiently  appear,  without  setting  out  the  copy.] 


1040  CARRIERS   OF   PASSENGERS. 

and,  upon  being  shown  his  ticket,  said  it  was  not  good,  because  he 
had  failed  to  have  it  stamped  at  Hot  Springs;  the  plaintiff  replied 
that  the  baggage-master,  when  checking  his  baggage,  had  said 
nothing  to  him  about  it,  and  he  did  not  know  it  was  necessary;  the 
conductor  answered  that  he  must  either  go  back  to  Hot  Springs  and 
have  the  ticket  stamped,  or  else  pay  full  fare,  but  did  not  demand 
any  specific  sum  of  fare,  or  tell  him  what  the  fare  was,  and  upon 
his  refusing  to  pay  another  fare  or  to  leave  the  train,  forcibly  put 
him  off  at  the  next  station,  notwithstanding  he  resisted  as  much  as 
he  could,  and  in  so  doing  injured  him  in  body  and  health. 

On  motion  of  the  defendant,  upon  the  grounds,  among  others, 
that  this  was  an  action  of  assumpsit  for  breach  of  contract,  and 
that  the  plaintiff  failed  to  produce  to  the  conductor  a  ticket  or 
voucher  which  entitled  him  to  be  carried  on  the  train,  and  that 
until  the  plaintiff  identified  himself  at  the  office  at  Hot  Springs 
and  had  the  ticket  stamped  and  signed  by  the  agent  there,  he  had 
no  subsisting  contract  between  himself  and  the  defendant  for  a 
return  passage  to  Chicago,  the  court  declined  to  permit  the  plain- 
tiff to  testify  to  the  consequent  injury  to  his  business  and  to  his 
ability  to  earn  money,  excluded  all  evidence  offered  as  to  the  force 
used  in  removing  him  from  the  train,  and  as  to  his  expulsion  from 
the  train  (although  corresponding  to  allegations  inserted  in  the 
declaration) ,  and  directed  a  verdict  for  the  defendant. 

The  plaintiff  excepted  to  the  rulings  of  the  court,  and,  after  ver- 
dict and  judgment  for  the  defendant,  sued  out  this  writ  of  error. 

Mr.  Justice  Gray.  This  is  an  action  of  assumpsit,  and  cannot 
be  maintained  without  proof  of  a  breach  of  contract  by  the  defend- 
ant to  carry  the  plaintiff.  The  only  contract  between  the  parties 
was  an  express  one,  signed  by  the  plaintiff  himself  as  well  as  by  the 
defendant's  agent  at  Chicago,  and  contained  in  a  ticket  for  a  passage 
to  Hot  Springs  and  back.  The  plaintiff,  having  assented  to  that 
contract  by  accepting  and  signing  it,  was  bound  by  the  conditions 
expressed  in  it,  whether  he  did  or  did  not  read  them  or  know  what 
they  were.  The  question,  when  he  first  knew  that  the  ticket  re- 
quired him  to  have  it  stamped  at  Hot  Springs,  was  therefore  rightly 
excluded  as  immaterial. 

By  the  express  condition  of  the  plaintiff's  contract,  he  had  no 
right  to  a  return  passage  under  his  ticket,  unless  it  bore  the  sig- 
nature and  stamp  of  the  defendant's  agent  at  Hot  Springs;  and  no 
agent  or  employee  of  the  defendant  was  authorized  to  alter,  modify, 
or  waive  any  condition  of  the  contract. 

Neither  the  action  of  the  baggage-master  in  punching  the  ticket 
and  checking  the  plaintiff's  baggage,  nor  that  of  the  gateman  in 
admitting  him  to  the  train,  therefore,  could  bind  the  defendant  to 
carry  him,  or  estop  it  to  deny  his  right  to  be  carried. 

The  plaintiff  did  not  have  his  ticket  stamped  at  Hot  Springs,  or 
make  any  attempt  to  do  so,  but  insisted  on  the  right  to  make  the 


TICKETS.  1041 

veturn  trip  under  the  unstamped  ticket,  and  without  paying  further 
Sare.  As  he  absolutely  declined  to  pay  any  such  fare,  the  fact  that 
the  conductor  did  not  inform  him  of  its  amount  is  immaterial. 

The  unstamped  ticket  giving  him  no  right  to  a  return  passage, 
and  he  not  having  paid,  but  absolutely  refusing  to  pay,  the  usual 
fare,  there  was  no  contract  in  force  between  him  and  the  defendant 
to  carry  him  back  from  Hot  Springs. 

There  being  no  such  contract  in  force,  there  could  be  no  breach 
of  it ;  and  no  breach  of  contract  being  shown,  this  action  of  assump- 
sit, sounding  in  contract  only,  and  not  in  tort,  cannot  be  maintained 
to  recover  any  damages,  direct  or  consequential,  for  the  plaintiff's 
expulsion  from  the  defendant's  train.  The  plaintiff,  therefore,  has 
not  been  prejudiced  by  the  exclusion  of  the  evidence  concerning  the 
circumstances  attending  his  expulsion  and  the  consequent  injuries 
to  him  or  his  business. 

The  case  is  substantially  governed  by  the  judgment  of  this  court 
in  Mosher  v.  St.  Louis,  Iron  Mountain  &  Southern  Railway,  127 
U.  S.  ,390,  and  our  conclusion  in  the  case  at  bar  is  in  accord  with 
the  general  current  of  decision  in  the  courts  of  the  several  States. 
See,  besides  the  cases  cited  at  the  end  of  that  judgment,  the  follow- 
ing: Churchill  v.  Chicago  &  Alton  Railroad,  67  Illinois,  390;  Petrie 
v.  Pennsylvania  Railroad,  13  Vroom,  449;  Pennington  v.  Philadel- 
phia, Wilmington  &  Baltimore  Railroad,  62  Maryland,  95;  Raw- 
itzky  v.  Louisville  &  Nashville  Railroad,  40  La.  Ann.  47. 

Nor  was  anything  inconsistent  with  this  conclusion  decided  in 
either  of  the  English  cases  relied  on  by  the  learned  counsel  for  the 
plaintiff.  Each  of  those  cases  turned  upon  the  validity  and  effect  of  a 
by-law  made  by  the  railway  company,  not  of  a  contract  signed  by  the 
plaintiff;  and  otherwise  essentially  differed  from  the  case  at  bar. 

In  Jennings  v.  Great  Northern  Railway,  L.  R.  1  Q.  B.  7,  the  by- 
law required  every  passenger  to  obtain  a  ticket  before  entering  the 
train,  and  to  show  and  deliver  up  his  ticket  whenever  demanded. 
The  plaintiff  took  a  ticket  for  himself,  as  well  as  tickets  for  three 
horses  and  three  boys  attending  them,  by  a  particular  train,  which 
was  afterwards  divided  into  two,  in  the  first  of  which  the  plaintiff 
travelled,  taking  all  the  tickets  with  him;  and  when  the  second 
train  was  about  to  start,  the  boys  were  asked  to  produce  their 
tickets,  and,  being  unable  to  do  so,  were  prevented  by  the  com- 
pany's servants  from  proceeding  with  the  horses.  An  action  by  the 
plaintiff  against  the  company  for  not  carrying  his  servants  was  sus- 
tained, because  the  company  contracted  with  him  only,  and  de- 
livered all  the  tickets  to  him;  and  Lord  Chief  Justice  Cockburn, 
with  whom  the  other  judges  concurred,  said:  "It  is  unnecessary  to 
determine  whether,  if  the  company  had  given  the  tickets  to  the 
boys,  and  the  boys  had  not  produced  their  tickets,  it  would  have 
been  competent  for  the  company  to  have  turned  them  out  of  the 
carriage." 


1042  CARRIERS    OF   PASSENGERS. 

Iu  Butler  v.  Manchester,  Sheffield   &  Lincolnshire  Railway,  21 
Q.  B.  D.  207,  the  ticket  referred  to  conditions  published  by  the  com- 
pany, containing  a  similar  by-law,  which  further  provided  that  any 
passenger  travelling  without  a  ticket,  or  not  showing  or  delivering 
it  up  when  requested,  should  pay  the  fare  from  the  station  whence 
the  train  originally  started.     The  plaintiff,  having  lost  his  ticket, 
was  unable  to  produce  it  when  demanded,  and,  refusing  to  pay  such 
fare,  was  forcibly  removed  from  the  train  by  the  defendant's  ser- 
vants.    The  Court  of  Appeal,  reversing  a  judgment  of  the  Queen's 
Bench  Division,  held  the  company  liable,  because  the  plaintiff  was 
lawfully  on  the  train  under  a  contract  of  the  company  to  carry  him, 
and  no  right  to  expel  him  forcibly  could  be  inferred  from  the  provi- 
sions of  the  by-law  in  question,  requiring  him  to  show  his  ticket  or 
pay  the  fare;   and  each   of   the  judges  cautiously  abstained  from 
expressing  a  decided  opinion  upon  the  question  whether  a  by-law 
could  have  been  so  framed  as  to  justify  the  course  taken  by  the 
company.  Judgment  affirmed. 


NASHVILLE,    etc.    R.    CO.    v.    SPRAYBERRY. 

8Baxt.  (Tenn.)  341.     1874. 

McFarland,  J.  Sprayberry  purchased  from  an  agent  of  the 
Nashville  &  Chattanooga  R.  R.  Co.,  at  Chattanooga,  tickets  for 
himself,  wife,  and  two  children  from  that  place  to  Shreveport,  La. 
The  tickets  are  what  are  known  as  coupon  tickets,  and  indicated  the 
route  to  be  by  the  Nashville  &  Chattanooga  road  to  Nashville,  and 
by  other  connecting  roads  to  Memphis,  and  from  that  point  to 
Shreveport  by  steamboat.  After  passing  over  the  railroads  to 
Memphis  the  party  took  the  steamboat  called  the  "Nick  Wall," 
to  which  they  were  directed,  and  while  on  the  route  on  the  Missis- 
sippi River  an  accident  occurred,  in  which  the  wife  of  Sprayberry 
and  his  two  children  were  drowned.  This  action  was  brought  by 
Sprayberry  against  the  Nashville  &  Chattanooga  R.  R.  Co.  The 
drowning  is  averred  to  have  been  the  result  of  the  misconduct  and 
want  of  skill  of  the  officers  and  servants  of  the  boat.  A  demurrer 
was  filed  upon  the  ground  that  the  plaintiff  could  not  maintain  the 
action  in  his  own  name  for  wrongs  or  injuries  causing  the  death  of 
the  wife  and  children.  This,  we  think,  was  properly  overruled. 
An  action  of  this  character  is  unknown  to  common  law,  and  is  only 
given  by  statute,  and  where  such  an  action  is  given  by  statute  and 
a  remedy  prescribed,  that  remedy  must  be  pursued.  As  the  injury 
occurred  in  the  State  of  Mississippi,  the  right  of  action  and  the 
remedy  prescribed  by  the  statute  of  that  State  is  the  one  to  which 
the  plaintiff  was  entitled.     The  statute  of  this  State  on  the  subject 


TICKETS.  1043 

has  no  application.  The  action,  though  predicated  upon  the  Mis- 
sissippi statute,  may  be  brought  in  this  State.  In  such  case  the 
declaration  must  aver  the  statute  under  which  it  is  brought.  This 
was  sufficiently  done.  That  statute  gives  the  remedy  to  the  husband 
and  father,  and  we  enforce  that  remedy  in  our  courts. 

The  next  question,  and  one  of  importance,  is  as  to  the  liability  of 
the  Nashville  and  Chattanooga  Railroad  Company  for  injuries  to  the 
passengers  caused  by  the  wrongful  acts,  negligence,  or  want  of  skill 
in  the  officers  and  servants  of  the  steamboat  after  the  passengers 
had  passed  beyond  their  line.  The  declaration  avers  that  the  de- 
fendant was  in  partnership  with  the  company  or  line  of  carriers 
owning  the  boat.  This  was  put  in  issue.  The  judge,  in  his  charge, 
instructed  the  jury  in  substance  that  it  was  not  necessary  for  the 
plaintiff  to  prove  this  to  entitle  him  to  a  recovery,  but  if  the  plain- 
tiff purchased  the  tickets  from  an  authorized  agent  of  the  defendant, 
the  defendant  thereby  became  bound  for  the  transportation  of  the 
passengers  over  the  entire  line  for  which  the  tickets  were  sold, 
although  beyond  the  terminus  of  its  road;  that  the  company  selling 
the  tickets  incurs  a  responsibility  as  though  the  entire  route  was 
its  own,  unless  it  stipulated  at  the  time  for  a  less  responsibility. 
This  we  understand  to  be  the  substance  of  the  instructions  to  the 
jury  on  this  question.  This  doctrine  rests  upon  the  theory  that  the 
contract  is  alone  with  the  company  from  whom  the  tickets  were 
purchased  for  the  entire  route,  and  that  the  connecting  lines  are 
but  agents  of  the  first  in  carrying  out  this  contract,  and  as  a  conse- 
quence the  acts  or  negligence  of  the  servants  causing  the  injury  are 
the  acts  of  the  joint  company.  This  is  laid  down  as  the  true  doc- 
trine in  Shearman  &  Redfield  on  Negligence,  sec.  272,  though  it  is 
conceded  that  the  American  cases  do  not  always  support  it.  The 
cases  referred  to  in  support  of  the  position  we  have  not  had  an 
opportunity  to  examine. 

In  the  case  of  Carter  &  Hough  v.  Peck,  4  Sneed,  203,  the  language 
of  the  judge  delivering  the  opinion  of  the  court  seems  to  favor  this 
view.  In  that  case,  however,  it  appeared  that  the  plaintiff  pur- 
chased from  the  defendants,  the  proprietors  of  a  stage  line,  through 
tickets  from  Nashville  to  Memphis;  the  defendants  did  not  own  the 
entire  line,  but  had  an  arrangement  with  another  company  owning 
a  stage  line  to  receive  the  passengers  at  Waynesboro  on  the  route 
and  carry  them  to  LaGrange  for  their  share  of  the  fare,  from  which 
point  they  were  to  be  taken  to  Memphis  by  railway,  but  this 
arrangement  was  not  known  to  the  plaintiff.  The  connecting  line 
at  Waynesboro  failed  and  refused  to  carry  the  plaintiff,  and  he 
was  compelledt  to  pay  his  fare  upon  another  route.  It  was  held 
that  the  plaintiff  was  entitled  to  hold  the  first  company  liable  for 
this  failure  upon  the  ground  that  his  contract  was  alone  with  them. 

The  case  of  Fustenheim  v.  The  Memphis  &  Ohio  E.  R.  Co.,  de- 
cided at  Jackson  by  this  court  in  April,  1872,  was  this,  the  plain- 


1044  CARRIEKS    OF    PASSENGERS. 

tiff  purchased  a  through  ticket  from  New  York  to  Memphis  from 
the  Pennsylvania  Central  Railroad  Company,  and  received  a  check 
for  his  baggage,  to  be  delivered  at  Memphis.  It  was  held  that  upon 
this  the  plaintiff  could  not  recover  from  the  last  company  running 
into  Memphis  for  an  injury  to  his  baggage,  which  occurred  while  on 
the  Pennsylvania  Central  road;  for  this  injury  he  must  look  to 
that  company.  We  also  referred  to  several  cases,  and  one  of  them 
our  own  holding,  that  a  carrier  receiving  freight  to  be  carried  be- 
yond the  terminus  of  its  own  road  is  responsible  for  its  delivery  at 
that  point  unless  a  different  liability  is  stipulated  for  and  these  are 
as  stated  authorities  holding  that  the  same  rule  applies  to  passengers. 

On  the  other  hand,  there  are  authorities  holding  that  a  different 
rule  applies  to  passengers  from  the  rule  applicable  to  freight  and 
baggage.  That  where  tickets  of  this  character  are  sold  they  are  to 
be  regarded  as  distinct  tickets  for  each  road  sold  by  the  first  com- 
pany as  agent  of  the  others,  so  far  as  passengers  are  concerned. 
This  is  the  doctrine  maintained  by  Judge  Redfield  in  his  work  on 
carriers.  He  refers,  among  others,  to  the  case  of  Ellsworth  v. 
Tartt,  26  Ala.  733,  in  which  he  says  the  question  was  a  good  deal 
examined,  and  the  rule  laid  down  to  be,  "  If  the  proprietors  of 
different  portions  of  a  public  line  of  travel,  by  an  agreement  among 
themselves,  appoint  a  common  agent  at  each  end  of  the  route  to 
receive  the  fare  and  give  through  tickets,  this  does  not  of  itself 
constitute  them  parties  as  to  passengers,  so  as  to  render  each  one 
liable  for  losses  occurring  upon  any  portion  of  the  line."  He  refers 
also  to  other  authorities.  See  Redfield  on  Carriers,  sec.  444.  And 
the  same  author  maintains  the  same  doctrine  in  his  work  on  the 
Law  of  Railways,  vol.  2,  sec.  201. 

In  this  conflict  of  authority  we  are  left  to  adopt  the  rule  which  to 
us  seems  supported  by  the  soundest  reason. 

The  extent  and  termini  of  great  railway  lines,  owned  and  operated 
by  companies  incorporated  by  public  laws,  may  be  supposed  to  be 
known,  at  least  in  general,  to  persons  of  ordinary  intelligence  when 
they  purchase  tickets  to  travel  over  them,  especially  when  this  is 
shown  by  the  tickets  themselves.  The  system  of  selling  through 
tickets  is  one  of  great  importance  and  convenience  to  travellers,  as 
it  avoids  trouble,  besides  securing  in  some  instances  lower  rates. 
The  theory  that  the  company  selling  the  ticket  shall  be  held  from 
this  alone  to  have  actually  contracted  to  carry  the  passengers  over 
roads  besides  its  own,  and  that  the  owners  of  the  other  roads  are 
but  the  agents  of  the  first  to  carry  out  the  contract,  seems  to  us  to 
be  an  arbitrary  assumption,  —  a  sort  of  legal  fiction,  —  and  contrary 
in  some  cases,  at  least,  to  the  truth  of  the  case.  Assuming  that  in 
fact,  the  different  lines  of  road  are  separate  and  distinct,  and  owned 
and  controlled  by  different  companies,  with  different  agents  aud 
officers,  and  that  there  is  no  contract  or  privity  between  them  in 
regard  to  carrying  passengers,  except  the  arrangement  to  sell  through 


TICKETS.  1045 

tickets,  and  that  these  facts  appear  in  proof,  shall  the  fact  that  the 
first  company,  with  the  authority  of  the  others,  issues  and  sells  the 
tickets,  be  held  of  itself  to  establish  exactly  contrary  to  the  truth, 
that  the  other  companies  are  but  the  agents  and  servants  of  the 
first?  There  is  nothing  in  this  record  to  indicate  that  the  officers 
and  agents  of  the  steamboat  whose  wrongful  acts  or  negligence  are 
said  to  have  caused  the  death  of  the  plaintiff's  wife  and  children, 
were  the  servants  of  this  defendant,  or  in  any  manner  under  its  con- 
trol, except  the  simple  fact  that  the  defendant  sold  the  tickets.  To 
allow  this  of  itself  to  establish  this  arbitrary  conclusion  against  the 
truth,  would  be  to  attach  unjust  responsibility  upon  the  company 
selling  the  tickets.  We  are  of  opinion  that  in  such  cases  the  com- 
pany selling  the  ticket  shall  be  regarded  as  the  agent  of  the  other 
lines  when  the  tickets  themselves  impart  this  and  nothing  else 
appears,  and  the  purchaser  may  well  understand  with  whom  the 
contract  is  made,  and  who  is  bound  for  its  performance. 

Of  course  the  company  selling  the  tickets  may,  by  contract,  either 
expressed  or  to  be  fairly  implied  from  its  acts,  bind  itself  to  be 
responsible  for  the  entire  route;  but  this  should  not  be  held  con- 
clusively established  from  the  sale  of  the  tickets  alone,  nor  should 
it  be  held  to  throw  upon  the  defendant  the  onus  of  proving  that  it 
expressly  limited  its  liability.  If  a  partnership  in  fact  appear,  the 
case  would  be  different. 

For  this  error  the  judgment  must  be  reversed,  and  a  new  trial 
awarded. 


CENTRAL   R.    CO.   v.    COMBS. 
70  Ga.  533.     1883. 

Action  for  breach  of  contract  to  carry  a  passenger.  The  opinion 
states  the  point.     The  plaintiff  had  judgment  below. 

Blaxdford,  J.  The  defendants  in  error  brought  their  separate 
actions  in  the  Superior  Court  of  Bibb  County  against  the  plaintiff  in 
error,  in  which  each  alleged  that  he  made  a  contract  with  the  de- 
fendant (the  plaintiff  in  error),  that  for  and  in  consideration  of  the 
sum  of  $35.55,  it  would  transport  the  plaintiff  from  the  city  of 
Macon,  Georgia,  to  the  city  of  Galveston,  Texas ;  that  he  paid  said 
amount  to  defendant,  and  that  defendant  issued  and  delivered  to 
plaintiff  a  ticket,  with  certain  coupons  attached;  that  plaintiff 
travelled  and  was  transported  on  said  ticket  as  far  as  the  city  of 
New  Orleans;  that  part  of  the  ticket  so  purchased  was  over  the 
Morgan  line  from  New  Orleans  to  Galveston;  that  he  left  the  city 
of  Macon  on  the  20th  of  August,  1879,  and  followed  the  directions 
given  him  by  defendant,    reaching   New  Orleans   on   the   21st  of 


1046  CAKRIEES    OF   PASSENGERS. 

August,  1879,  and  there  the  defendant  failed  and  refused  to  carry 
him  further  on  his  journey,  and  the  Morgan  line  failed  and  refused 
to  carry  plaintiff  from  New  Orleans  to  Galveston.  And  it  was 
further  averred  that  there  was  no  steamer  running  on  the  Morgan 
line  from  New  Orleans,  and  had  not  been  for  a  long  time  before  the 
issuing  of  said  ticket  and  the  making  of  the  contract,  and  that  fact 
defendant  knew  before  it  sold  the  ticket.  These  are  all  the  alle- 
gations in  the  declaration  material  to  be  considered  by  this  court. 

The  defendant  in  the  court  below  and  plaintiff  in  error  in  this 
court  filed  a  plea  of  the  general  issue. 

There  are  several  questions  made  by  this  record.  First,  is  a 
railroad  company  which  sells  and  issues  tickets  to  passengers  and 
persons  over  its  own  lines  of  road  and  the  lines  of  road  of  other 
companies,  known  as  through  tickets,  liable  for  the  sure  and  safe 
transportation  of  such  passengers  or  persons  to  the  point  of  destina- 
tion, notwithstanding  there  may  be  indorsed  or  printed  on  the 
tickets  so  sold  and  issued,  "that  the  company  issuing  and  selling 
such  tickets  shall  not  be  liable  except  as  to  its  own  line  of  road  ?  " 
It  has  been  held  by  this  court,  that  when  a  passenger  with  a  through 
ticket  over  a  connecting  line  of  railroads  checks  his  baggage  at  the 
starting-point  through  to  his  destination,  and  upon  arriving  it  is 
damaged  and  has  been  broken  open  and  robbed,  he  may  sue  the  road 
which  issued  the  check,  or  he  may  sue  the  road  delivering  the  bag- 
gage in  bad  order.  Wolff  v.  Central  Railroad  Company,  68  Ga.  653; 
Hawley  v.  Screven,  62  Ga.  347.  In  2  Redf.  Railw.,  §  201,  it  is 
stated  "  that  taking  pay  and  giving  tickets  or  checks  through  for  the 
carriage  of  baggage  of  passengers,  binds  the  first  company,  ordi- 
narily, for  the  entire  route."  Yet  this  author,  who  cannot  be  con- 
sidered as  having  any  bias  or  prejudice  against  these  corporations, 
does  not  assign  any  reason  for  the  dictum  above.  He  contents  him- 
self with  citing  the  case  of  McCormick  v.  Hudson  River  R.  Co., 
4  E.  D.  Smith,  181. 

It  may  be  very  safely  assumed  from  these  decisions  that  the  law 
in  this  State  is,  that  when  a  railroad  company  issues  and  sells  a 
ticket  over  its  own  lines  of  road,  and  over  the  lines  of  other  roads 
to  a  point  designated,  such  company  is  liable  to  the  passenger  thus 
purchasing  such  ticket,  who  checks  his  baggage  through  on  the  line 
indicated  in  the  ticket,  for  the  safe  and  secure  carriage  and  trans- 
portation of  such  baggage.  And  if  the  railroad  company  would  be 
liable  for  the  safe  and  secure  transportation'  of  the  baggage  of  a 
passenger  which  is  but  a  convenience  and  incident  of  the  passenger, 
it  cannot  be  very  readily  perceived  why  such  company  should  not 
be  liable  for  the  safe  and  secure  carriage  and  transportation  of  the 
passenger  himself.  Why  is  the  company  thus  contracting  liable  for 
the  transportation  of  the  passenger's  baggage  ?  Is  it  not  because 
such  is  the  undertaking  of  such  company  ? 


TICKETS.  1047 

In  the  case  of  Illinois  C.  R.  v.  Copeland,  24  111.  338,  the  Supreme 
Court  of  that  State  say  this:  "We  hold  the  ticket  and  the  check 
given  by  this  company,  and  produced  in  evidence,  imply  a  special 
undertaking  to  carry  the  passenger  to  St.  Louis  via  the  Terre  Haute 
&  Alton  Railroad   and   his    baggage  also.     The   ticket   is  what  is 
known  as  a  through  ticket,  and  the  check  denotes  that  the  baggage 
is   checked   from    Chicago  to  St.  Louis,    and  both  inform  the  pas- 
senger that  the  Illinois  Central  has  running  connections  with  the 
Terre  Haute  &  Alton  road,  and  that  they  can  and  will  deliver  the 
passenger  and  baggage,  by  means  of  this  connection,  at  St.  Louis. 
The  ticket  and  check  are  both  issued  by  the  Illinois  Central;  they 
are  the  evidence  of  the  contract  made  with  them,  and  in  effect  speak 
this  language:  '  If  you  will  buy  this  ticket  we  will  carry  you  safely 
to  St.  Louis  and  your  baggage  also;  the  terminus  of  our  road,  by 
means  of  our  connection  with  the  Terre  Haute  &  Alton  road,  is  at 
St.  Louis,  and  we  giiarantee  to  you  your  safe  arrival  there  with  your 
baggage,   .   .   .  whether  we  run  our  own  cars  through  or  take  those 
of  the  other  road  at  the  point  of  intersection.     You  pay  through, 
and  you  and  your  baggage  shall  be  carried  through.'     This  is  the 
contract  evidenced,  we  think,  by  the  ticket  and  the  check."     What 
a   close   analogy   between  the   case   under   consideration    and    the 
Illinois  case  above   cited!     And   the   reason   for  the   rule  is  well 
stated.     You  fpay   your  money  to    go   through,  and  [the   company 
receiving  it  guarantees  to  you  that  you  shall  go  through  safely;  it 
is  an  implied  special  contract,  and  it  is  not  limited  by  any  state- 
ments written  or  printed  on  the  check  or  ticket  not  signed  by  the 
passenger.     In  support  of  this  doctrine  see  Quimby  v.  Vanderbilt, 
17  N.  Y.  306;  also  Kessler  v.  N.  Y.  C.  R.  Co.,  7  Lans.  62;  Code 
of  Ga.,  §  2068. 

[On  another  point  judgment  reversed.'] 


FRANK  v.    INGALLS. 
41  Ohio  St.  560.     1885. 

Nash,  J.  The  plaintiff  in  error  seeks  to  have  the  judgment  of  the 
District  Court  reversed  on  the  theory  that  a  railroad  passenger 
ticket,  like  those  described  in  the  statement  of  facts,  is  negotiable 
and  passes  by  delivery  from  the  holder  to  a  purchaser,  and  that  any 
person  purchasing  and  receiving  such  ticket  from  any  holder  thereof 
takes  it  freed  of  all  equities  of  the  railroad  company,  or  defects  of 
title,  or  want  of  authority  in  the  seller  to  dispose  of  it. 

The  character  of  a  railroad-passenger  ticket  has  been  considered 


1048  CARRIERS    OF   PASSENGERS. 

by  the  Supreme  Court  of  this  State.  In  the  case  of  C.  C.  &  C.  R. 
R.  Co.  v.  Bartram,  11  Ohio  St.  457,  it  is  spoken  of  as  "a  convenient 
symbol  to  represent  the  fact  that  the  bearer  has  paid  to  the  com- 
pany the  agreed  price  for  his  conveyance  upon  the  road  to  the  place 
therein  designated."  Again,  in  the  case  of  Railroad  Company  v. 
Campbell,  36  Ohio  St.  647,  it  is  said  that  a  railroad  ticket  "is 
simply  a  voucher  that  the  person  in  whose  possession  it  is,  has  paid 
his  fare."  Lawson,  in  his  work  on  "Contracts  of  Carriers,"  sec. 
106,  p.  116,  says,  "  that  a  railroad  or  steamboat  ticket  is  nothing  more 
than  a  mere  voucher  that  the  party  to  whom  it  is  given,  and  in  whose 
possession  it  is,  has  paid  his  fare  and  is  entitled  to  be  carried  a  cer- 
tain distance,"  and  supports  his  definition  by  the  citation  of  numer- 
ous decisions. 

It  thus  seems  to  be  well  established  that  a  railroad  ticket  is  a  re- 
ceipt or  voucher.  It  has  more  the  character  of  personal  property 
than  that  of  a  negotiable  instrument.  When  the  possession  of  such 
a  ticket  has  been  obtained  by  fraud  the  company  has  parted  with 
the  possession  of  it,  but  not  with  the  title  to  it,  and  the  person  pur- 
chasing from  the  holder,  although  for  value  and  without  notice  of 
equities,  takes  no  better  title  than  the  party  had  who  fraudulently 
obtained  possession  of  it.  We  do  not  perceive  that  the  holder  of 
such  a  ticket  is  in  any  better  position  than  the  bona  fide  purchaser 
of  goods  from  one  in  possession,  for  a  valuable  consideration,  and 
without  notice  of  any  defect  in  his  vendor's  title.  Such  a  purchaser 
cannot  be  protected  against  the  title  of  the  true  owner  in  a  case 
where  the  vendor  has  fraudulently  obtained  his  possession  and 
without  the  knowledge  or  consent  of  the  owner,  although  previous 
to  such  possession  he  had,  by  false  and  fraudulent  representations, 
induced  the  owner  to  enter  into  a  contract  for  the  sale  of  the  goods. 
Dean  v.  Yates,  22  Ohio  St.  388;  Hamet  v.  Letcher,  37  Ohio  St.  356. 

From  the  facts  found  by  the  courts  below  it  appears  that  the  pos- 
session of  the  tickets  in  controversy  were  obtained  from  Ingalls, 
receiver  of  the  railroad  company,  by  the  fraud  of  Fordyce,  and  we 
conclude  that  Frank,  the  purchaser  from  Fordyce,  obtained  no  title 
thereto. 

Eagan,  the  agent  of  the  receiver,  authorized  to  sell  such  tickets, 
and  stamp  and  deliver  the  same  upon  receiving  pay  therefor,  did  not 
bind  his  principal  when  he  stamped  and  delivered  the  tickets,  with- 
out his  knowledge  or  consent,  to  a  third  person,  to  be  sold  by  him, 
and  to  be  paid  for  when  sold. 

Judgment  affirmed. 


TICKETS.  1049 


SLEEPER  v.   PENNSYLVANIA  RAILROAD  CO. 

100  Penn.  St.  259.     1882. 

Case,  by  George  W.  Sleeper  against  the  Pennsylvania  Railroad 
Co.,  to  recover  damages  for  an  illegal  ejecting  of  plaintiff  from  de- 
fendant's train. 

On  the  trial  the  plaintiff  testified  that  on  the  morning  of  May  8th, 
1878,  he  took  passage  on  the  defendant's  train  from  New  York  to 
Philadelphia  and  tendered  to  the  conductor  in  payment  of  his  fare 
a  ticket  which  he  had  bought  several  months  before  at  a  place  on 
Broadway,  New  York,  not  a  regular  agency  of  the  company,  but  a 
place  where  they  advertised  tickets  at  reduced  rates.  He  further  tes- 
tified that  he  paid  for  the  ticket  one  dollar  less  than  the  current 
rates.  The  conductor  refused  to  receive  the  ticket,  and  upon  plain- 
tiff's refusing  to  pay  the  fare  put  him  off  the  train  at  Elizabeth. 
The  present  suit  was  then  brought.  The  court  on  motion  of  defend- 
ant awarded  a  nonsuit,  which  the  court  in  banc  subsequently  declined 
to  take  off.  Plaintiffs  thereupon  took  this  writ,  assigning  for  error 
the  granting  of  the  nonsuit  and  the  refusal  to  take  off  the  same. 

Mr.  Justice  Truxkey.  The  parties  agree  that  this  case  presents 
a  single  question,  whether  a  person  purchasing  a  ticket  over  the 
Pennsylvania  Railroad  from  New  York  to  Philadelphia,  from  a 
ticket-dealer  who  is  not  an  authorized  agent  of  the  company,  can 
maintain  an  action  in  the  courts  of  this  State  for  the  refusal  of  the 
company  to  carry  him  between  these  points  in  return  for  said  ticket. 

By  the  Act  of  May  Gth,  1863,  P.  L.  582,  it  is  made  the  duty  of 
every  railroad  company  to  provide  each  agent  authorized  to  sell 
tickets  entitling  the  holder  to  travel  upon  its  road,  with  a  certificate 
attested  by  the  corporate  seal  and  the  signature  of  the  officer  whose 
name  is  signed  to  the  tickets.  And  any  person  not  possessed  of 
such  authority,  who  shall  sell,  barter,  or  transfer,  for  any  considera- 
tion, the  whole  or  any  part  of  a  ticket,  or  other  evidence  of  the 
holder's  title  to  travel'  on  any  railroad,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  liable  to  be  punished  by  fine  and  impris- 
onment. The  purchasing  and  using  a  ticket  from  a  person  who  has 
no  authority  to  sell,  is  not  made  an  offence. 

That  the  plaintiff's  ticket,  on  its.  face,  entitled  him  to  the  rights 
of  a  passenger  between  the  points  named,  is  unquestioned.  The 
only  reason  for  denying  him  such  right  was  that  he  bought  from  one 
who  sold  in  violation  of  the  statute  in  Pennsylvania.  It  is  not 
said  that  the  vendor  in  New  York  is  actually  guilty  of  the  statutory 
offence,  but  that  the  defendant,  being  a  corporation  in  Pennsylvania, 
and  the  stipulated  right  of  passage  being  partly  in  Pennsylvania, 


1050  CARRIERS    OF   PASSENGERS. 

her  courts  will  not  enforce  a  contract  resting  upon  acts  which  the 
legislature  has  declared  criminal. 

The  presumption  is  that  the  ticket  was  properly  issued  by  the 
company,  and  that  the  holder  had  the  right  to  use  it.  Such  tickets 
are  evidence  of  the  holder's  title  to  travel  on  the  railroad.  Prior  to 
the  statute  in  Pennsylvania,  it  was  lawful  for  holders  to  sell  them. 

The  property  in  them  passed  by  delivery.  The  Act  of  1863  con- 
fers no  right  upon  a  railroad  company  to  question  passengers  as  to 
when,  or  where,  or  how  they  procured  their  tickets,  or  to  eject  them 
from  the  cars  upon  suspicion  that  the  tickets  were  sold  to  them  by  a 
person  who  was  not  an  agent  for  the  company.  At  common  law, 
which  is  deemed  in  force  in  absence  of  evidence  to  the  contrary,  the 
contract  made  by  the  plaintiff  in  New  York  was  valid.  It  was 
executed.  No  part  remained  to  be  performed.  It  vested  in  him 
the  evidence  of  title  to  a  passage  over  the  railroad.  His  act  had  no 
savor  of  illegality  or  immorality.  It  was  the  mere  purchase  of  the 
obligation  of  a  common  carrier,  to  carry  the  holder  according  to  its 
terms.  The  defendant  issued  the  obligation,  received  the  consider- 
ation, and  became  liable  for  performance  at  the  date  of  issue.  As 
transferee,  the  plaintiff  claimed  performance.  This  is  the  contract 
which  is  the  basis  of  the  cause  of  action.  It  is  purposely  made  so 
as  to  entitle  the  bona  fide  holder  to  performance,  and  for  breach  to 
an  action  in  his  own  name.  Let  it  be  assumed  that  the  defendant 
made  the  contract  in  Pennsylvania,  it  is  quite  as  reasonable  to 
assume  that  tickets  for  passengers  coming  from  New  York  into 
Pennsylvania  were  sold  in  New  York.  But  wherever  the  contract 
was  made,  it  is  true,  as  claimed  by  the  defendant,  "this  action  is 
to  enforce  not  the  contract  between  the  ticket-scalper  and  the  plain- 
tiff in  error,  but  between  the  defendant  in  error  and  the  plaintiff  in 


error." 


The  sale  of  the  ticket  to  the  plaintiff  in  New  York  was  lawful. 
That  being  an  executed  contract,  there  is  no  question  respecting  its 
enforcement.  Surely  it  is  not  an  exception  to  the  rule  that  con- 
tracts, valid  by  the  law  of  the  place  where  they  are  made,  are 
generally  valid  everywhere.  Then,  as  the  plaintiff  has  a  valid  title 
to  the  ticket,  the  contract  between  the  defendant  and  himself  is 
valid. 

Judgment  reversed  and  procedendo  awarded. 


BEGULATIONS.  1051 


8.    EEGULATIONS. 

JEFFERSONVILLE   E.    CO.   v.    EOGEES. 
28  Ind.  1.     1867. 

Erazer,  J.  This  was  a  suit  by  the  appellee  against  the  appellant 
for  unlawfully  expelling  the  appellee  from  its  cars.  The  complaint 
alleged  that  the  defendant's  ticket  agent  refused  to  sell  a  ticket  to  the 
plaintiff;  that  he  thereupon  seated  himself  in  the  car  without  such 
ticket,  for  the  purpose  of  being  carried  from  Indianapolis  to  Colum- 
bus, and  tendered  the  usual  ticket  fare  to  the  conductor,  who  refused 
that  sum  and  demanded  a  greater  sum  by  fifteen  cents;  and  upon  a 
refusal  by  the  plaintiff  to  pay  the  sum  demanded,  he  was,  by  the 
defendant,  expelled  from  the  vehicle  three  miles  from  a  station. 

The  answer  was  in  two  paragraphs.  The  first  was  .a  general 
denial,  under  which  the  matter  pleaded  in  the  second  was  admissible 
in  evidence,  and  there  was  therefore  no  available  error  in  sustaining 
a  demurrer  to  the  latter. 

Various  questions  are  made  upon  the  instructions  to  the  jury, 
and  as  to  the  admissibility  of  evidence,  all  of  which  are  in  the 
record  by  an  unsuccessful  motion  for  a  new  trial,  there  having  been 
a  verdict  for  the  plaintiff  in  the  sum  of  $345. 

The  evidence  established  the  averments  of  the  complaint  upon 
every  point,  save  that  the  plaintiff  had  applied  for  and  been  refused 
a  ticket.  Upon  that  subject  there  was  a  conflict.  It  appeared,  too, 
that  the  appellant  discriminated  in  its  charges  for  passage  in  favor 
of  persons  holding  tickets ;  the  usual  rate,  if  paid  on  the  train,  being 
$2.10,  and  the  usual  rate  for  a  ticket  $51.95.  That  the  ticket  agent 
was  at  that  time  supplied  with  tickets,  and  instructed  to  sell  them, 
was  clearly  proven,  'rickets  were  sold  to  other  persons  at  that  time, 
and  for  Columbus.  If,  therefore,  he  refused  a  ticket  to  the  appellee, 
it  was  of  his  own  motion  and  in  violation  of  his  duties  as  agent  of 
the  appellant.  The  appellant  existed  under  a  special  charter  (local 
laws  of  1S46,  p.  153),  which  gave  it  full  power  to  fix  its  rates  of 
passenger  fares,  "  provided  that  the  rates  established  from  time  to 
time  shall  be  posted  up  at  some  conspicuous  place  or  places  on  said 
road ; "  and  this  had  been  done  as  to  the  rates  then  usual,  both  for 
tickets  and  when  payment  was  made  on  board  to  the  conductor. 

It  is  not  controverted  that  the  appellant  had  the  right,  for  its  own 
protection  against  the  possible  dishonesty  of  conductors,  and  for  the 
convenient  transaction  of  its  business,  to  discriminate  in  favor  of 
persons  purchasing  tickets.     The  regulation  is  a  reasonable  one,  if 


1052  CARRIERS    OF   PASSENGERS. 

carried  out  by  the  corporation  in  good  faith.  It  tends  to  protect 
the  corporation  from  the  frauds  of  its  conductors,  and  from  the 
inconvenience  of  collecting  fares  upon  its  trains  in  motion;  and  it 
imposes  no  hardship  whatever  upon  travellers.  But  if  the  corpora- 
tion may  refuse  to  furnish  the  tickets,  and  thus  fail  to  do  what  is 
plainly  implied  by  the  adoption  and  publication  of  the  rule,  it  would 
be  unreasonable,  and  therefore  not  binding  upon  its  passengers. 
Such  a  corporation  cannot  be  sustained,  in  so  far  as  it  assumes  to 
be  the  arbitrary  master  of  its  patrons.  It  is  a  common  carrier  of 
passengers,  and  must  perform  the  obligations  which  the  law  imposes 
upon  it  as  such.  It  has  no  lawful  authority  to  impose  upon  travel- 
lers by  vexatious  and  deceptive  rules  and  regulations,  such  as  the 
one  under  consideration  would  obviously  be,  if  it  does  not  carry 
with  it  an  obligation  on  the  part  of  the  corporation  to  afford  passen- 
gers the  opportunity  to  avail  themselves  of  the  discrimination  in 
fares  which  it  publicly  offers.  That  such  an  obligation  does  arise 
out  of  the  adoption  of  such  a  regulation  was  expressly  ruled  in 
Illinois.  Chicago,  &c.  Co.  v.  Parks,  18  111.  460,  and  St.  Louis,  &c. 
Co.  v.  Dalby,  19  111.  353.  The  latter  case  is  precisely  in  point  here, 
it  being  held  that  the  passenger,  having  been  unable  to  procure  a 
ticket  through  the  fault  or  neglect  of  the  railroad  company's  ticket 
agent,  had  a  right  to  be  carried  at  the  ticket  rate,  and  that  upon 
tender  of  that  sum  to  the  conductor,  his  subsequent  expulsion  from 
the  train  was  a  wrong  for  which  the  corporation  was  liable. 

In  New  York,  the  subject  has  been  regulated  to  some  extent  by 
statute.  To  ask  or  receive  a  greater  rate  of  fare  than  that  allowed 
by  law,  entitles  the  passenger  to  recover  the  sum  of  fifty  dollars  as 
a  penalty.  The  New  York  Central  Railroad  Company  is  required 
to  keep  its  ticket  office  at  Utica  open  for  the  sale  of  tickets  for  an 
hour  prior  to  the  departure  of  each  train,  but  it  is  not  required  to 
keep  such  office  open  between  11  o'clock  p.  m.  and  5  o'clock  a.  m.  ; 
and  if  a  person  at  any  station  where  a  ticket  office  is  open  enters  the 
cars  as  a  passenger,  without  a  ticket,  the  company  may  charge  five 
cents  in  addition  to  the  usual  fare,  which  is  fixed  at  two  cents  per 
mile.  In  Nellis  v.  New  York  Central  Eailroad  Company,  30  N.  Y. 
505,  where  a  passenger  from  Utica  entered  the  train  without  a 
ticket,  at  1  o'clock  a.  m.,  when  the  ticket  office  was  not  open,  and 
was  compelled  to  pay  the  additional  five  cents,  it  was  held  that  the 
penalty  was  incurred.  It  was  argued  there  that  the  case  was  not 
within  the  statute,  because  the  ticket  office  was  not  required  to  be 
open  at  that  hour;  and  upon  that  point  it  is  said,  in  the  opinion  of 
the  court:  "It  is  insisted  that  because  the  plaintiff  did  not  do 
what  it  was  impossible  for  him  to  do,  to  wit,  buy  a  ticket  before 
leaving  Utica,  he  became  liable  to  pay  the  extra  fare.  It  seems  to 
me  the  proposition  has  but  to  be  stated  to  be  rejected  as  utterly 
unsound.  To  compel  a  passenger  to  pay  a  penalty  because  the 
company  had  deprived  him  of  the  power  to  travel  for  the  regular 


KEGULATIOXS.  1053 

fare,  would  be  so  oppressive  and  unjust,  that  it  would  require  a  posi- 
tive provision  of  a  legislative  act  to  induce  any  tribunal  to  sanction 
•it."  Though  that  case  arose  under  the  statutes  of  New  York,  and 
might  have  been  decided  without  touching  upon  the  subject  dis- 
cussed in  the  passage  quoted,  yet  the  reasoning  of  the  quotation  is 
so  forcible  and  so  directly  applicable  to  the  point  under  considera- 
tion here  that  it  may  well  be  deemed  an  authority.  And  the  fact 
that  a  State  like  New  York,  largely  interested  in  commerce,  and 
whose  known  policy  it  is,  in  every  proper  way,  to  foster  her  great 
corporations  engaged  in  the  transportation  of  passengers,  should,  by 
statute,  make  their  right  to  discriminate  in  fares  depend  upon  their 
affording  the  passenger  an  opportunity  to  avail  himself  of  the  dis- 
crimination, is  worth  some  consideration  when  the  inquiry  is  whether 
such  a  discrimination  can  be  upheld  as  reasonable  without  the  cor- 
responding obligation  upon  the  carrier. 

Opposed  to  the  doctrine  already  announced,  Crocker  v.  New  Lon- 
don, &c.  Co.,  24  Conn.  249,  stands  alone,  so  far  as  we  know.  The 
facts  of  that  case  were  much  like  the  one  at  bar,  except  that  the 
ticket  office  was  closed  for  the  night,  to  be  opened  as  usual  there- 
after. That  fact  was  held  as  proof  that  the  company  had  withdrawn 
its  proposition  to  carry  at  ticket  rates,  and  was  therefore  not  bound 
to  carry  a  passenger  tendering  to  the  conductor  merely  the  price  of 
a  ticket.  The  law  certainly  deduces  no  such  conclusion  from  the  fact 
of  closing  a  ticket  office,  as  was  reached  in  that  case,  to  wit :  that 
the  offer  to  carry  at  ticket  rates  was  withdrawn.  It  is  a  conclusion 
of  fact  and  not  of  law,  and  we  think  not  at  all  a  legitimate  one. 
The  Supreme  Court  of  Iowa,  in  citing  this  case  to  another  point,  in 
the  State  v.  Chovin,  7  Iowa,  204,  very  properly  disclaimed  any 
purpose  to  be  understood  as  concurring  with  the  case  upon  the 
question  now  under  examination.  But  the  Connecticut  case  can 
have  no  application  whatever  to  the  inquiry  as  it  arises  in  the 
present  case,  for  here  the  evidence  is  clear  that  the  offer  was  not 
withdrawn;  that  the  agent  was  supplied  with  tickets  and  instructed 
to  sell  them,  and  did  actually  sell  them  on  that  occasion  to  other 
passengers  for  Columbus. 

The    court    refused    the    following    instruction,    asked    by    ihe 

appellant :  — 

"If  you  believe,  from  the  evidence,  that  the  plaintiff  did  not 
apply  for,  and  was  not  refused  a  ticket,  as  alleged  in  his  complaint, 
and  that  he  refused  to  pay  to  the  conductor  of  said  train  the  regular 
and  usual  fare  fixed  by  said  company  for  a  passage  paid  upon  the 
cars,  then  the  said  conductor  would  have  a  right  to  eject  the  plamtift 
from  said  cars,  using  no  more  force  than  was  necessary  for  that  pur- 
pose, even  though  between  stations." 

The  question  thus  presented  is,  whether  the  expulsion,  if  other- 
wise rightful,  might  lawfully  occur  elsewhere  than  at  a  station. 
This  question,  in  the  case  before  us,  does  not  depend  upon  a  statute. 


1054  CARRIERS   OF    PASSENGERS. 

Our  general  railroad  law,  1  G.  &  H.  516,  does  not  apply  to  the  appel- 
lant, and  its  charter  is  silent  upon  the  subject.  It  is  said  in  the 
briefs,  which  have  evidently  been  prepared  with  great  care,  that 
the  question  is  without  direct  authority.  The  passenger  who  refuses 
to  pay  fare  is  from  that  moment  an  intruder,  and  wrongfully  on  the 
train.  He  has  no  lawful  right  to  be  carried  gratis  to  the  next 
station.  This  is  too  plain  to  admit  of  debate.  It  follows  that  he 
may  be  expelled  at  once.  There  may  be  public  considerations,  such 
as  the  danger  of  collisions  resulting  from  stopping  trains  between 
stations,  or  the  peril  to  the  travelling  public  consequent  upon  the 
increase  of  speed  necessary  to  regain  time  thus  lost,  which  justify 
the  enactment  of  a  law  that  the  expulsion  must  occur  at  a  station. 
These  considerations,  however,  form  no  basis  for  a  claim  by  a 
passenger  to  be  carried  gratuitously  from  one  station  to  the  next. 
The  refusal  to  give  this  instruction  must  reverse  the  judgment. 

The  judgment  is  reversed,  with  costs,  and  the  cause  remanded  for 
a  new  trial. 


EVERETT   v.    CHICAGO,    etc.    R.    CO. 
69  Iowa,  15.     1886. 

On  the  morning  of  August  18,  1881,  the  plaintiff  took  passage  on 
defendant's  railroad  at  a  small  station  named  Weston,  intending  to 
travel  to  Council  Bluffs,  a  distance  of  ten  miles.  He  did  not  pro- 
cure a  passenger  ticket,  and  the  conductor  of  the  train  demanded  ten 
cents  in  addition  to  the  ticket  rate,  which  the  plaintiff  refused  to 
pay.  Thereupon  the  conductor  caused  the  train  to  be  stopped,  and 
he  forcibly  ejected  the  plaintiff  therefrom.  This  action  was  brought 
to  recover  damages  for  the  alleged  wrongful  act  of  the  conductor  in 
removing  the  plaintiff  from  the  train.  A  trial  by  jury  resulted  in  a 
verdict  and  judgment  for  the  defendant.     Plaintiff  appeals. 

Rothrock,  J.  I.  It  is  provided  by  section  2  of  chapter  68  of 
the  Laws  of  1874,  Miller's  Code,  347,  that  "a  charge  of  ten  cents 
may  be  added  to  the  fare  of  any  passenger  where  the  same  is  paid 
upon  the  cars,  if  a  ticket  might  have  been  procured  within  a  reason- 
able time  before  the  departure  of  the  train."  The  ground  upon  which 
the  plaintiff  based  his  refusal  to  pay  the  ten  cents  demanded  by  the 
conductor  was  that  he  was  prevented  from  procuring  a  ticket,  because 
the  ticket  office  was  closed  when  he  presented  himself  for  the  pur- 
pose of  purchasing  a  ticket.  The  facts  are  that  the  plaintiff  is  the 
owner  of  a  large  farm  some  five  miles  from  Weston.  His  residence 
is  at  Council  Bluffs,  and  he  made  frequent  visits  to  his  farm,  going 


^REGULATIONS.  1055 


by  rail  by  the  way  of  Weston.  He  knew  that  the  defendant  was 
authorized  to  collect  ten  cents,  in  addition  to  the  ticket  rate,  from 
passengers  who  neglected  to  purchase  tickets  at  the  station.  Wes- 
ton is  a  small  and  unimportant  station  at  which  an  inconsiderable 
amount  of  business  is  done  by  the  railroad  company,  either  in 
freight  or  passenger  traffic.  As  is  usual  at  such  places,  the  company 
keeps  no  assistant  for  the  agent;  and,  when  a  train  arrives,  the 
agent  leaves  the  ticket  office,  and  goes  upon  the  platform  of  the 
station  to  transact  his  business  with  the  train ;  such  as  seeing  to  the 
loading  of  the  mail  on  the  train,  the  receipt  and  delivery  of  baggage 
and  express  packages,  and  the  like.  The  plaintiff  came  in  from  his 
farm  in  the  morning,  and  stopped  at  a  store  in  the  village  until  he 
heard  the  whistle  of  the  train  as  it  approached  the  station,  when  he 
went  to  the  station,  and  arrived  there  just  before  the  train  came  to 
a  full  stop.  The  ticket  agent  had  the  office  open  for  a  considerable 
time  before  the  train  arrived,  and  sold  tickets  to  passengers,  and  he 
did  not  leave  the  office  until  the  engine  to  which  the  train  was 
attached  had  passed  the  office  window,  when  he  went  on  the  plat- 
form to  attend  to  his  train  duties.  The  train  stops  at  that  station 
only  long  enough  to  do  the  train  business  and  allow  passengers  to 
get  on  and  off  the  cars. 

The  court  permitted  all  these  facts  to  be  shown  to  the  jury,  and 
charged  the  jury  to  the  effect  that  if,  under  all  these  facts  and  cir- 
cumstances, a  reasonable  time  was  given  to  passengers  to  purchase 
tickets  before  the  departure  of  the  train,  the  conductor  was  autho- 
rized to  demand  the  extra  ten  cents  of  the  plaintiff.     One  of  the 
instructions  to  the  jury  was  as  follows :  "  (6)    The  fact,  if  it  is  a  fact, 
that  the  plaintiff  applied  at  the  defendant's  ticket  office  at  Weston 
to  purchase  a  ticket  at  a  time  when  it  was  closed,  does  not  of  itself 
alone  necessarily  show  that  opportunity  was   not   given   within  a 
reasonable  time  before  the  departure  of  the  train  for  the  purchase  of 
tickets;  nor  can  it  be  said,  as  matter  of  law,  that  the  defendant  had 
a  right  to  close  its  ticket  office  as  soon  as  the  train  arrived  at  the 
station.     The  question,  what  is  a  reasonable  time  for  the  procuring 
of  tickets  before  the  departure  of   trains   from  a  station,   depends 
principally  on  the  requirements,  convenience,  and  demands  of  the 
public  at  that  particular  station.     It  was  the  duty  of  defendant  to 
keep  its  ticket  office  open,  and  to  keep  a  competent  man  there  to  sell 
tickets  at  such  times  as  would  reasonably,  fairly,  and  fully  accommo- 
date the  public  in  the  matter  of  procuring  tickets.     Regard  should 
be  had  to  the  importance  of  the  station,  and  the  number  of  people 
who  have  occasion  to  purchase  tickets  there ;  and  the  ticket  office 
should  be  kept  open  at  such  times  as  people  in  general  who  travel 
by  rail  are  in  the  habit  of  repairing,  and  find  it  convenient  to  repair, 
to  the  station  to  purchase  tickets  and  get  aboard  the  train." 

Counsel  for  appellant  insist  that  this  and  other  instructions  given 
by  the  court  to  the  jury  are  erroneous.     They  claim  that,  under  a 


1056  CARRIERS   OF   PASSENGERS. 

proper  construction  of  the  statute  above  cited,  it  was  the  duty  of  the 
railroad  company  to  keep  its  ticket  office  open  up  to  the  time  of  the 
departure  of  the  train ;  in  other  words,  they  claim  that  by  the  very 
terms  of  the  statute  the  office  must  be  kept  open  for  the  sale  of  tick- 
ets just  so  long  as  it  is  possible  for  passengers  to  purchase  tickets 
and  board  the  train.     Assuming  this  to  be  the  meaning  and  intent 
of  the  statute,  they  contend  that  it  was  error  for  the  court  to  submit 
to  the  jury  the  question  whether,  under  the  facts,  the  office  was  kept 
open  a  reasonable  time  in  which  passengers  might  procure  tickets. 
We   do  not  think  this  position  is  sound.     In  our  opinion,   it  was 
proper  to  allow  the  defendant  to  introduce  evidence  of  the  character 
of  the  station,  and  whether  the  facilities  extended  to  the  travelling 
public  to  purchase  tickets  were  such  as  were  required  for  the  con- 
venience of  the  public.     It  would  be  a  most  unreasonable  require- 
ment to  impose  upon  the  defendant  the  burden  of  employing  two 
persons  to  attend  to  the  station  in  order  that  the  ticket  office  might 
be  kept  open  for  the  one  or  two  minutes  which  a  train  is  required 
to  stop  at  such  a  station,  in  order  to  accommodate  the  exceptional 
cases  of  passengers  who  may  for  any  reason  arrive  at  the  station 
after  the  arrival  of  the  train.     Regard  must  be  had  to  the  orderly 
transaction  of  the  business  of  the  station,  taking  into  consideration 
the  necessary  and  proper  facilities  extended  to  persons  having  occa- 
sion to  travel  on  the  trains  or  transact  other  business  with  the  com- 
pany.    It  is  absolutely  necessary  that  the  office  should  be  open  for 
business  a  sufficient  time  before  the  departure  of  the  train,  in  order 
to  enable  passengers  to  procure  their  tickets,  receive  and  count  their 
change,  if  any,  and  prepare  to  board  the  train,  without  unnecessary 
interference  with  each  other.     But  the  language  "  before  the  depar- 
ture of  the  train  "  does  not  require  that  the  office  shall  remain  open 
up  to  the  instant  the  train  moves  off.     The  question  is,  might  the 
passenger  have  procured  a  ticket  within  a  reasonable  time  before 
the  departure,  and  not  up  to  the  very  moment  when  the  wheels  be- 
gan to  move. 

II.  Some  complaint  is  made  as  to  the  place  where  the  plaintiff 
was  ejected  from  the  cars.  It  appears  that  it  was  half  a  mile  from 
a  public  crossing.  It  is  not  required  in  this  State  that,  where  a  per- 
son may  rightfully  be  ejected  from  a  railroad  train,  it  must  be  done 
at  a  station  or  public  crossing.  Brown  v.  Railroad  Co.,  51  Iowa, 
235.  In  the  case  at  bar,  all  of  the  facts  attending  the  removal  of 
the  plaintiff  from  the  train,  and  the  place  where  he  was  removed, 
were  fairly  submitted  to  the  jury  on  what  we  regard  as  proper  in- 
structions; and  the  jury,  in  answer  to  a  special  interrogatory,  found 
that  the  conductor  did  not  act  with  malice,  express  or  implied, 
towards  plaintiff  in  ejecting  him  from  the  train.  We  think  this 
finding  was  fully  supported  by  the  evidence. 

III.  The  plaintiff  offered  to  introduce  evidence  to  the  effect  that 
the  defendant's  station  was  an  unfit  place  for  passengers  to  remain 


REGULATIONS.  1057 

in  waiting  for  trains  because  of  the  close  proximity  of  a  privy.  The 
evidence  was  excluded,  and  plaintiff's  counsel  complain  of  this  rul- 
ing of  the  court.  We  think  it  was  correct.  The  plaintiff  did  not 
allege  this  as  a  reason  why  he  did  not  go  to  the  station  and  procure 
a  ticket,  and  he  made  no  such  claim  to  the  conductor.  His  sole 
ground  of  recovery  was  based  upon  the  alleged  fact  that  he  could 
not  procure  a  ticket  because  the  office  was  closed. 

We  think  the  judgment  of  the  district  court  should  be 

Affirmed. 


TOWNSEND  v.   N.   Y.    CENTRAL   &   H.    R.   R.   CO. 

56  N.  Y.  295.     1874. 

Grover,  J.  This  action  was  brought  by  the  plaintiff  to  recover 
damages  for  an  assault  upon  and  forcibly  ejecting  him  from  its  cars, 
at  Staatsburg,  a  station  on  defendant's  road  between  Poughkeepsie 
and  Rhinebeck. 

The  jury  by  their  verdict  have  found  that  the  plaintiff  purchased 
a  ticket  at  the  station  of  Sing  Sing  for  Rhinebeck;  that  with  this 
ticket  he  went  on  board  a  train  from  New  York,  going  no  farther 
north  than  Poughkeepsie;  that  after  this  train  passed  Peekskill  the 
conductor  called  for  tickets  and  the  plaintiff  handed  his  to  him, 
which  he  took  and  retained,  giving  to  the  plaintiff  no  check  or  other 
evidence  showing  any  right  to  a  passage  upon  any  train  of  the  de- 
fendant; nor  did  the  plaintiff  ask  for  a  return  of  his  ticket  or  for 
any  such  evidence.  Upon  the  arrival  of  the  train  at  Poughkeepsie, 
where  it  stopped,  the  plaintiff  got  out  and  waited  at  the  station 
until  another  train  arrived  from  New  York,  which  was  going  to 
Albany,  stopping  at  Rhinebeck.  The  plaintiff  got  into  and  seated 
himself  in  a  car  in  this  train;  and  after  it  started  the  conductor 
called  upon  him  for  his  ticket;  in  reply  to  which  the  plaintiff  told 
him  that  he  had  purchased  a  ticket  from  Sing  Sing  to  Rhinebeck, 
which  the  conductor  of  the  other  train  had  taken  and  had  not  given 
back  to  him;  some  of  the  passengers  told  the  conductor  that  the 
plaintiff  had  had  such  a  ticket.  The  conductor  told  the  plaintiff 
that  it  was  his  duty  in  case  he  had  no  ticket  to  collect  the  fare,  and 
that  the  other  conductor  would  make  it  right  with  him.  The  plain- 
tiff refused  to  pay  fare,  and  the  conductor  told  him  he  must  leave 
the  train.  This  the  plaintiff  refused  to  do,  insisting  upon  his  right 
to  a  passage  to  Rhinebeck  upon  the  ticket  which  the  conductor  of 
the  other  train  had  taken.  Upon  the  arrival  of  the  train  at  Staats- 
burg, a  regular  station,  the  plaintiff,  still  refusing  to  pay  fare  or  to 
leave  the  train  upon  request,  was  taken  hold  of  and  such  force  used 


1058  CARRIERS   OF   PASSENGERS. 

as  was  necessary  to  overcome  his  resistance,  and  ejected  from  the 
car.     This  was  the  injury  for  which  the  recovery  was  had. 

The  court,   among  other  things,   charged  the  jury  that  the  con- 
ductor seemed  to  have  done  no  more  than  his  duty  to  the  company 
as  between  him  and  the  company ;  but  at  the  same  time  that  did  not 
excuse  the  company  for  the  wrongful  act  of  the  other  conductor  — 
for  which  act  they  were  responsible.     The  defendant's  counsel  re- 
quested the  court  to  charge  the  jury  that  this  was  not  a  case  for 
punitive  or  exemplary  damages.     The  court  declined  so  to  charge, 
and  in  reply  said :  "  I  am  inclined  to  think  it  is  a  case  where  the 
jury  are  not  restricted  to  actual  injuries,  —  in  other  words,  to  com- 
pensatory damages."      To  this   the   counsel   for  the  defendant  ex- 
cepted.    This  exception  was  well  taken.     It  must  be  kept  in  mind 
that  the  injury  for  which  a  recovery  was  sought  was  the  forcible 
ejection  of  the  plaintiff  from  the  car  by  the  conductor  of  the  train, 
not  the  wrongful  taking  from  the  plaintiff  of  his  ticket  by  the  con- 
ductor of   the  other  train.       The  latter  was  regarded  as  material, 
only  as  making  the  former  act  wrongful  as  against   the    plaintiff. 
The  court,  in  substance,  charged  that  in  putting  the  plaintiff  off  the 
car  the  conductor  acted  in  what  he  believed  was  the  performance  of 
his  duty  to  the  company.     This  being  so,  it  is  clear  that  no  puni- 
tory damages  could  have  been  recovered  against  him  had  he  been 
sued  instead  of  the  company.     In  Hamilton  v.  The  Third  Avenue 
Railroad  Co.,  53  X.  Y.  25,  it  was  held  by  this  court  that  a  master 
was  not  liable  for  punitory  damages  for  the  act  of  his  servant,  done 
under  circumstances  which  would  jjive  no  such  right  to  the  plaintiff 
as  against  the  servant  had  the  suit  been  against  him  instead  of  the 
master.     Caldwell  v.  The  New  Jersey  Steamboat  Co. ,  47  N.  Y.  282, 
is  not  at  all  in  conflict  with  this;  nor  does  it  hold  that  a  master  is 
liable  to  punitory  damages  for  the  wrongful  act  of  his  servant  if 
free  from  any  wrong  of  his  own.     It  does  hold  that  a  corporation  is 
liable  for  punitory  damages  for  its  own  torts  and  breaches  of  duty. 
This  error  in  the  charges  requires  a  reversal  in  the  judgment  and  a 
new  trial. 

But  there  is  another  important  question  in  the  case  which  will 
necessarily  arise  upon  a  retrial,  and  which  was  raised  by  an  excep- 
tion taken  upon  the  trial  already  had :  that  is  whether  the  plaintiff 
had  a  right  to  go  upon  another  train  and  use  force  to  retain  a  seat 
there;  refusing  to  pay  fare,  having  no  evidence  of  any  right  to  a 
passage,  by  reason  of  the  conductor  of  the  other  train  having  wrong- 
fully taken  and  retained  his  ticket. 

It  is  insisted  by  the  counsel  for  the  plaintiff  that  this  question 
was  decided  in  favor  of  the  plaintiff  in  Hamilton  v.  Third  Avenue 
Railroad  Company,  stipra.  This  question  was  not  involved  or  de- 
cided in  that  case.  There  the  plaintiff  testified  that  when  the  car 
upon  which  he  had  paid  his  fare  to  the  City  Hall  stopped  at  an 
intermediate  station,  its   conductor  told  the  passengers  to  change 


REGULATIONS.  1059 

cars ;  that  before  going  on  board  the  car  from  which  he  was  ejected, 
he  inquired  of  its  conductor  whether  any  transfer  ticket  was  neces- 
sary;  that  the  conductor  told  him  it  was  not;  that  if  he  came  from 
the  other  car   he  could   go   on  board  the  one  from   which  he  was 
ejected.'    This  was  equivalent  to  an  assurance  by  that  conductor 
that  he  could  ride  upon  the  car  under  his  control,  without  further 
payment  of  fare  or  evidence  of  a  right  so  to  do.     It  was  in  reference 
to  this  testimony  that  it  was  said  that  the  company  would  be  liable 
for  his  wrongful  ejection  from  the  car  by  the  conductor  who  had 
given  this  assurance.     But  testimony  was  given  by  the  defendant  in 
direct  conflict  with  this.     The  judge  erroneously  charged  the  jury 
that,  assuming  the  truth  of  the  latter  testimony,  and  that  the  con- 
ductor acted  in  good  faith  in  putting  the  plaintiff  off  the  car,  still 
he  was  entitled  to  recover  of  the  company  punitory  damages  if  hev 
had  paid  fare  to  the  City  Hall  upon  the  other  car.     For  this  error 
the  judgment  was  reversed  and  a  new  trial  ordered  by  this  court. 

In  Hibbard  v.  The  New  York  &  Erie  Eailroad  Co.,  15  N.  Y.  455, 
it  was  held  by  this  court  that  a  railroad  company  had  the  right  to 
establish  reasonable  regulations  for  the  government  of  passengers 
upon  its  trains,  and  forcibly  eject  therefrom  those  who  refused  to 
comply  with  such  regulations.     Surely  a  regulation  requiring  pas- 
sengers either  to  present  evidence  to  the  conductor  of   a  right  to 
a  seat,  when  reasonably  required  so  to  do,  or  to  pay  fare,  is  reason- 
able;  and   for   non-compliance   therewith   such   passenger   may  be 
excluded   from   the   car.     The  question   in  this   case  is  whether  a 
wrongful  taking  of  a  ticket  from  a  passenger  by  the  conductor  of 
one  train  exonerates   him  from  compliance  with  the  regulation  in 
another  train,  on  which  he  wishes  to  proceed  upon  his  journey.     I 
am  unable  to  see  how  the  wrongful  act  of  the  previous  conductor 
can  at  all  justify  the  passenger  in  violating  the  lawful  regulations 
upon  another  train.      For  the  wrongful  act  in  taking  his  ticket  he 
has  a  complete  remedy  against  the  company.     The  conductor  of  the 
train  upon  which  he  was,  was  not  bound  to  take  his  word  that  he 
had  had  a  ticket  showing  his  right  to  a  passage  to  Ehinebeck,  which 
had  been  taken  up  by  the  conductor  of  the  other  train.     His  state- 
ment to  that  effect  was  wholly  immaterial,  and  it  was  the  duty  of 
the  conductor  to   the    company  to  enforce   the    regulation,  as  was 
rightly  held  by  the  trial  judge,  by  putting  the  plaintiff  off  in  case 
he  persistently  refused  to  pay  fare.     The  question  is,  whether  under 
the  facts  found  by  the  jury,  resistance  in  the  performance  of  this 
duty  was  lawful  on  the  part  of  the  plaintiff.     If  so,  the  singular 
case  is  presented,  where  the  regulation  of  the  company  was  lawful, 
where  the  conductor  owed  a  duty  to  the  company  to  execute  it,  and 
at  the  same  time  the  plaintiff  had  the  right  to  repel  force  by  force 
and  use  all  that  was  necessary  to  retain  his  seat  in  the  car.     Thus, 
a  desperate  struggle  might  ensue,  attended  by  very  serious  conse- 
quences, when  both  sides  were  entirely  in  the  right,  so  far  as  either 


1060  CARRIERS    OF   PASSENGERS. 

could  ascertain.  All  this  is  claimed  to  result  from  the  wrongful  act 
of  the  conductor  of  another  train,  in  taking  a  ticket  from  the  plain- 
tiff, for  which  wrong  the  plaintiff  had  a  perfect  remedy,  without 
inviting  the  commission  of  an  assault  and  battery  by  persisting  in 
retaining  a  seat  upon  another  train  in  violation  of  the  lawful  regu- 
lations by  which  those  in  charge  were  bound  to  govern  themselves. 
It  was  conceded  by  the  counsel,  upon  the  argument,  that  one  buy- 
ing a  ticket,  say  from  Albany  for  Buffalo,  which  was  wrongfully 
taken  from  him  by  a  servant  of  the  company,  and  who  had  once 
been  put  off  for  a  refusal  to  pay  fare,  would  not  have  the  right  to  go 
upon  other  trains  going  to  Buffalo,  and,  if  forcibly  ejected  there- 
from, maintain  actions  against  the  company  for  the  injuries  so  in- 
flicted. The  reason  why  he  could  not,  given  by  the  counsel,  was, 
that  being  once  ejected  was  notice  that  he  could  not  have  a  seat 
upon  the  ticket  which  he  claimed  had  been  taken  from  him.  But 
when  the  conductor  in  charge  of  the  train  explicitly  tells  him  that 
he  cannot  retain  his  seat  upon  that  ticket,  that  he  must  pay  fare  or 
leave  the  car,  does  it  not  amount  to  the  same  thing  ?  He  then 
knows  that  he  cannot  proceed  upon  the  ticket  taken,  but  must 
resort  to  his  remedy  the  same  as  though  he  had  been  ejected.  If, 
after  this  notice,  he  waits  for  the  application  of  force  to  remove 
him,  he  does  so  in  his  own  wrong;  he  invites  the  use  of  the  force 
necessary  to  remove  him;  and  if  no  more  is  applied  than  is  neces- 
sary to  effect  the  object,  he  can  neither  recover  against  the  conduc- 
tor or  company  therefor.  This  is  the  rule  deducible  from  the 
analogies  of  the  law.  No  one  has  a  right  to  resort  to  force  to  com- 
pel the  performance  of  a  contract  made  with  him  by  another.  He 
must  avail  himself  of  the  remedies  the  law  provides  in  such  case. 
This  rule  will  prevent  breaches  of  the  peace  instead  of  producing 
them;  it  will  leave  the  company  responsible  for  the  wrong  done  by 
its  servant  without  aggravating  it  by  a  liability  to  pay  thousands  of 
dollars  for  injuries  received  by  an  assault  and  battery,  caused  by 
the  faithful  efforts  of  its  servants  to  enforce  its  lawful  regulations. 

The  judgment  appealed  from  must  be  reversed  and  a  new  trial 
ordered,  costs  to  abide  event. 

All  concur:    Folger  and  Andrews,  JJ.,  concurring  on   the  first 
ground;  Church,  C.  J.,  concurring  on  last  ground  stated  in  opinion. 


FREDERICK  v.    M.,   H.    &   0.    R.    CO. 

37  Mich.  342.     1877. 

Marston,  J.  This  is  an  action  on  the  case  brought  to  recover 
damages  for  being  unlawfully  ejected  and  put  off  a  train  of  cars  by 
the  conductor  of  the  train.     The  evidence  on  the  part  of  the  plain- 


REGULATIONS.  1061 

tiff  tended  to  show  that  on  the  evening  of  January  29th,  1876  he 
went  to  the  regular  ticket  office  of  the  defendant  at  Ishpeniing  and 
asked  for  a  ticket  to  Marquette,  presenting  to  the  agent  in  charge 
of  the  office  one  dollar  from  which  to  make  payment  therefor-  that 
the  agent  received  the  money,  handed  plaintiff  a  ticket  and  some 
change,  retaining  sixty-five  cents  for  the  ticket,  the  regular  fare  to 
Marquette;  that  plaintiff  did  not  attempt  to  read  what  was  on  the 
ticket,  nor  did  he  count  the  change  received  back  until  next  morn- 
ing, or  notice  it  until  then;  that  he  went  on  board  the  train  bound 
for  Marquette,  and  after  the  train  left  the  station  the  conductor 
took  up  the  ticket,  giving  him  no  check  to  indicate  his  destination, 
but  at  the  time  telling  him  his  ticket  was  "Only  for  Morgan;  that 
when  the  train  reached  Morgan  the  conductor  told  the  plaintiff  he 
must  get  off  there  or  pay  more  fare ;  that  if  he  wanted  to  go  to  Mar- 
quette he  must  pay  thirty-five  cents  more;  plaintiff  insisted  he  had 
paid  his  fare  and  purchased  his  ticket  to  Marquette,  and  refused  to 
pay  the  additional  fare,  whereupon  he  was  ejected  from  the  train, 
fete.  On  the  part  of  the  defendant  evidence  was  given  tending  to 
show  that  the  ticket  purchased  and  presented  to  the  conductor  was 
in  fact  a  ticket  for  Morgan  and  not  for  Marquette.  Under  the 
pleadings  and  charge  of  the  court  other  evidence  in  the  case  and 
questions  sought  to  be  raised  need  not  be  referred  to,  and  as  the  real 
gist  of  the  action  was  for  the  expulsion  from  the  cars  by  the  con- 
ductor, the  above  statement  is  deemed  sufficient  to  a  proper  under- 
standing of  the  case. 

An  erroneous  impression  seems  to  prevail  with  many  that  where 
the  conductor  of  a  passenger  train  ejects  therefrom  a  passenger  who 
has  paid  his  fare  to  a  point  beyond,  but  has  lost  or  mislaid  his 
ticket,  or  whose  ticket  does  not  entitle  him  to  proceed  further,  or 
upon  that  train,  that  the  company  is  liable  in  an  action  at  law  for 
all  damages  which  the  party  may  in  any  way  have  sustained  in  con- 
sequence of  the  delay,  mortification,  injury  to  his  health,  or  other- 
wise, and  that  the  passenger  is  under  no  obligation  to  prevent  or 
lessen  the  damages  by  payment  of  the  necessary  additional  fare  to 
entitle  him  to  complete  his  journey  without  interruption.  Although 
such  damages  were  claimed  in  this  case,  under  our  present  view  it 
will  be  unnecessary  to  discuss  this  question  any  farther  at  present. 

What  then  is  the  duty  of  the  conductor  in  a  case  like  the  present  ? 
and  what  are  the  passenger's  rights  ?  In  considering  these  ques- 
tions, we  cannot  shut  our  eyes  to  the  manner  and  method  which 
railroad  companies  and  common  carriers  generally  have  adopted  in 
order  to  successfully  carry  on  their  business.  The  view  to  be  taken 
of  these  questions  must  be  a  practical  one,  even  although  it  may 
work  perhaps  injustice  in  some  special  and  particular  cases,  result- 
ing, however,  in  great  part  if  not  wholly  from  other  causes.  In  Day 
v.  Owen,  5  Mich.  521,  Mr.  Justice  Manning  in  speaking  of  the  rules 
and  regulations  of  common  carriers,  said  "  all  rules  and  regulations 


1062  CARRIERS   OF   PASSENGERS. 

must  be  reasonable,  and,  to  be  so,  they  should  have  for  their  object 
the  accommodation  of  the  passengers.  Under  this  head  we  include 
everything  calculated  to  render  the  transportation  most  comfortable 
and  least  annoying  to  passengers  generally;  not  to  one,  or  two,  or 
any  given  number  carried  at  a  particular  time,  but  to  a  large  major- 
ity of  the  passengers  ordinarily  carried.  Such  rules  and  regulations 
should  also  be  of  a  permanent  nature,  and  not  be  made  for  a  partic- 
ular occasion  or  emergency." 

It  is  within  the  common  knowledge  or  experience  of  all  travellers 
that  the  uniform  and  perhaps  the  universal  practice  is  for  railroad 
companies  to  issue  tickets  to  passengers  with  the  places  designated 
thereon  from  whence.  a*nd  to  which  the  passenger  is  to  be  carried ; 
that  these  tickets  are  presented  to  the  conductor  or  person  in  charge 
of  the  train  and  that  he  accepts  unhesitatingly  of  such  tickets  as 
evidence  of  the  contract  entered  into  between  the  passenger  and  his 
principal.  It  is  equally  well  known  that  the  conductor  has  but  sel- 
dom if  ever  any  other  means  of  ascertaining,  within  time  to  be  of  any 
avail,  the  terms  of  the  contract,  unless  he  relies  upon  the  statement 
of  the  passenger,  contradicted  as  it  would  be  by  the  ticket  produced, 
and  that  even  in  a  very  large  majority  of  cases,  owing  to  the  amount 
of  business  done,  the  agent  in  charge  of  the  office,  and  who  sold  the 
ticket,  could  give  but  very  little  if  any  information  upon  the  sub- 
ject. That  this  system  of  issuing  tickets,  in  a  very  large  majority 
of  cases,  works  well,  causing  but  very  little  if  any  annoyance  to  pas- 
sengers generally,  must  be  admitted.  There  of  course  will  be  cases 
where  a  passenger  who  has  lost  his  ticket,  or  where  through  mis- 
take the  wrong  ticket  had  been  delivered  to  him,  will  be  obliged  to 
pay  his  fare  a  second  time  in  order  to  pursue  his  journey  without 
delay,  and  if  unable  to  do  this,  as  will  sometimes  be  the  case,  very 
great  delay  and  injury  may  result  therefrom.  Such  delay  and  in- 
jury would  not  be  the  natural  result  of  the  loss  of  a  ticket  or  breach 
of  the  contract,  but  would  be,  at  least  in  part,  in  consequence  of  the 
pecuniary  circumstances  of  the  party.  Such  cases  are  exceptional, 
and  however  unfortunate  the  party  may  be  who  is  so  situate,  yet  we 
must  remember  that  no  human  rule  has  ever  yet  been  devised  that 
would  not  at  times  injuriously  affect  those  it  was  designed  to  accom- 
modate. This  method  of  purchasing  tickets  is  also  of  decided 
advantage  to  the  public  in  other  respects;  it  enables  them  to  pur- 
chase tickets  at  times  and  places  deemed  suitable,  and  to  avoid 
thereby  the  crowds  and  delays  they  would  otherwise  be  subject  to. 
Were  no  tickets  issued  and  each  passenger  compelled  to  pay  his 
fare  upon  the  cars,  inconvenience  and  delay  would  result  therefrom, 
or  the  officers  in  charge  of  the  train  to  collect  fares  would  be  in- 
creased in  numbers  to  an  unreasonable  extent,  while  at  fairs  and 
places  of  public  amusement  where  tickets  are  issued  and  sold  enti- 
tling the  pure! laser  to  admission  and  a  seat,  we  can  see  and  appreci- 
ate the  confusion  which  would  exist  if  no  tickets  were  sold,  or  if 


REGULATIONS.  1063 

the  party  presenting  the  ticket  were  not  upon  such  occasions  to  be 
bound  by  its  terms. 

How,  then,  is  the  conductor  to  ascertain  the  contract  entered  into 
between  the  passenger  and  the  railroad  company  where  a  ticket  is 
purchased  and  presented  to  him?     Practically  there  are   but  two 
ways,  —  one,  the  evidence  afforded  by   the  ticket;    the  other  the 
statement   of   the  passenger   contradicted   by   the   ticket.       Which 
should  govern?     In  judicial  investigations  we  appreciate  the  neces-  . 
sity  of  an  obligation  of  some  kind  and  the  benefit  of  a  cross-exami- 
nation.    At  common   law,   parties    interested   were   not  competent 
witnesses,  and  even  under  our  statute  the  witness  is  not  permitted, 
in  certain  cases,   to  testify  as  to  the  facts,  which,  if  true,  were 
equally  within  the  knowledge  of  the  opposite  party,  and  he  cannot 
be  procured.     Yet  here  would  be  an  investigation  as  to  the  terms 
of  a  contract,  where  no  such  safeguards  could  be  thrown  around  it, 
and  where  the  conductor,  at  his  peril,  would  have  to  accept  of  the 
mere  statement  of  the  interested  party.     I  seriously  doubt  the  prac- 
tical workings  of  such  a  method,  except  for  the  purpose  of  encour- 
aging and  developing  fraud  and  falsehood,  and  I  doubt  if  any  system 
could  be  devised  that  would  so  much  tend  to  the  disturbance  and 
annoyance  of  the  travelling  public  generally.     There  is  but  one  rule 
which  can  safely  be  tolerated  with  any  decent  regard  to  the  rights 
of  railroad  companies  and   passengers  generally.     As  between  the 
conductor  and  passenger,  and  the  right  of  the  latter  to  travel,  the 
ticket  produced  must  be  conclusive  evidence,  and  he  must  produce  it 
when  called  upon,  as  the  evidence  of  his  right  to  the  seat  he  claims. 
Where  a  passenger  has  purchased  a  ticket  and  the  conductor  does 
not  carry  him  according  to  its  terms,  or,  if  the  company,  through  the 
mistake  of  its  agent,  has  given  him  the  wrong  ticket,  so  that  he  has 
been  compelled  to  relinquish  his  seat,  or  pay  his  fare  a  second  time 
in  order  to  retain  it,  he  would  have  a  remedy  against  the  company 
for  a  breach  of  the  contract,  but  he  would  have  to  adopt  a  declara- 
tion differing  essentially  from  the  one  resorted  to  in  this  case. 

We  have  not  thus  far  referred  to  any  authorities  to  sustain  the 
views  herein  taken.  If  any  are  needed,  the  following,  we  think, 
will  be  found  amply  sufficient,  and  we  do  not  consider  it  necessary 
to  analyze  or  review  them.  Townsend  v.  1ST.  Y.  C.  &  H.  R.  R.  R.  Co., 
56  N.  Y.  298  [1057]  ;  Hibbard  v.  N.  Y.  &  E.  R.  R.,  15  N.  Y.  470; 
Bennett  v.  N.  Y.  C.  &  H.  R.  R.,  5  Hun,  600 ;  Downs  v.  K  Y.  &  N.  H.  R. 
R.,  36  Conn.  287;  C,  B.  &  Q.  R.  R.  v.  Griffin,  68  111.  499;  Pullman 
P.  C.  Co.  v.  Reed,  75  111.  125;  Shelton  v.  Lake  Shore,  etc.  Ry.  Co., 

29  Ohio  St. 

I  am  of  opinion  that  the  judgment  should  be  affirmed  with  costs. 

Cooley,  C.  J.,  concurred. 

Graves,  J.  By  mistake  the  company's  ticket  agent  issued  and 
plaintiff  accepted  a  ticket  covering  a  shorter  distance  than  that  bar- 
gained and  paid  for;  and  having  ridden  under  it  the  distance  which 


1064  CARRIERS   OF   PASSENGERS. 

it  authorized,  and  refusing  to  repay  for  the  space  beyond,  the  plain- 
tiff was  removed  from  the  cars. 

This  removal  may,  or  may  not,  have  constituted  a  cause  of  action, 
but  it  is  not  the  cause  of  action  charged.  The  declaration  sets  up 
that  plaintiff's  ticket  was  a  proper  one  for  the  whole  distance  and 
that  he  was  removed  in  violation  of  the  right  which  the  ticket  made 
known  to  the  conductor. 

There  was  no  proof  of  the  case  alleged,  and  I  agree  therefore  in 
affirming  the  judgment. 

Campbell,  J.  The  plaintiff's  cause  of  action  in  this  case  was  for 
the  failure  of  the  company  to  carry  him  to  a  destination  to  which  he 
had  paid  the  passage-money,  and  the  immediate  occasion  for  his 
removal  from  the  cars  was  that  he  was  given  a  wrong  ticket,  and 
was  not  furnished  with  such  a  one  as  the  conductor  was  instructed 
to  recognize  as  entitling  him  to  the  complete  carriage.  His  declara- 
tion should  have  been  framed  on  this  theory.  Had  it  been  so 
framed ,  I  am  not  prepared  to  say  that  he  may  not  have  had  a  right 
of  action  for  more  than  the  difference  in  the  passage-money. 

But  as  he  counted  on  the  failure  of  the  conductor  to  respect  a  cor- 
rect ticket,  and  it  appears  the  conductor  gave  him  all  the  rights 
which  the  ticket  produced  called  for,  there  was  no  cause  of  action 
made  out  under  the  declaration,  and  the  rule  of  damages  need  not  be 
considered.     I  concur  in  affirming  the  judgment. 


BRADSHAW   v.    SOUTH   BOSTON   RAILROAD   COMPANY. 

135  Mass.  407.     1S83. 

Tort  for  being  expelled  from  one  of  the  defendant's  cars.  Trial 
in  the  Superior  Court  without  a  jury,  before  Colburn,  J.,  who  re- 
ported the  case  for  the  determination  of  this  court,  in  substance  as 
follows :  — 

The  defendant  is  a  common  carrier  of  passengers  for  hire,  owning 
lines  of  street  cars  between  South  Boston  and  Boston  proper,  and, 
among  others,  one  running  over  Federal  Street  Bridge,  between 
Boston  and  City  Point  in  South  Boston  by  what  is  called  the  Bay 
View  route,  and  another  running  over  Dover  Street  Bridge  between 
Boston  and  said  City  Point  by  way  of  Broadway.  None  of  the 
Dover  Street  cars  run  over  the  Bay  View  route,  and  none  of  the 
Bay  View  cars  run  over  Dover  Street.  When  a  passenger  on 
the  Bay  View  line  wishes  to  enter  the  city  by  way  of  Dover  Street, 
it  is  the  practice  of  the  defendant,  after  he  has  paid  his  fare,  and 
arrived  at  the  proper  place  for  changing  cars,  to  give  him  a  check, 
which  states  that  it  is  good,  only  on  the  day  of  its  date,  for  one 


REGULATIONS.  1065 

continuous  ride,  for  Bay  View  passengers,  from  Dorchester  Avenue 
to  the  Providence  Depot.  When  a  passenger  on  the  Dover  Street 
line  wishes  to  go  to  some  place  in  South  Boston  on  the  Bay  View 
line,  it  is  the  practice,  after  he  has  paid  his  fare  and  arrived  at  the 
proper  place  for  changing  cars,  for  the  defendant  to  give  him  a 
check,  which  states  that  it  is  good,  only  on  the  day  of  its  date,  for 
one  continuous  ride  from  Dorchester  Avenue  to  City  Point  via  Bay 
View.  The  upper  left  quarter  and  the  lower  right  quarter  of  the 
first-mentioned  checks  are  colored  red,  and  the  corresponding  quar- 
ters of  the  other  checks  are  colored  yellow.  The  plaintiff  was  fa- 
miliar with  the  practice  above  mentioned,  and  had  received  and  used 
such  checks,  but  had  never  read  them,  though  able  to  read,  and  had 
never  noticed  the  difference  in  the  color  of  the  checks. 

In  the  afternoon  of  May  15,  1881,  the  plaintiff  entered  one  of  the 
Bay  View  cars  of  the  defendant  at  the  corner  of  Eighth  Street  and 
Dorchester  Street  in  South  Boston,  intending  to  go  to  the  corner  of 
Dover  Street  and  Washington  Street  in  Boston,  and  thence  over  the 
Metropolitan  Horse  Railroad  to  some  point  on  that  line.  He  paid 
his  fare  on  the  defendant  road,  and  also  sufficient  to  pay  for  a  trans- 
fer check  to  the  Metropolitan  road,  which  he  received  in  due  form. 
He  told  the  conductor  that  he  wished  for  a  check  to  take  him  over 
the  Dover  Street  line,  which  the  conductor  promised  to  give  him 
when  they  arrived  at  the  proper  place  for  changing  cars.  At  the 
corner  of  Dorchester  Avenue  and  Broadway  he  left  said  car,  and,  as 
he  left,  the  conductor  handed  him  the  last-named  check,  by  mistake, 
in  place  of  the  first-named.  After  waiting  a  short  time,  a  Dover 
Street  car  came  along,  which  he  entered,  and  rode  as  far  as  the 
bridge,  when  the  conductor  of  the  car  came  for  his  fare,  and  he 
tendered  him  said  check.  The  conductor  refused  to  accept  it, 
(though  the  plaintiff  informed  him  of  the  circumstances  under 
which  he  received  it,  as  above  stated),  and  required  him  to  pay  a 
fare  or  leave  the  car.  The  plaintiff  refused  to  pay  a  fare5>  and  was 
forced  by  said  conductor  to  leave  the  car.     No  unnecessary  force 

was  used. 

Upon  these  facts,  the  judge  ruled  that  the  plaintiff  was  not  en- 
titled to  maintain  his  action,  and  found  for  the  defendant. 

C.  Allen,  J.  It  may  be  assumed,  as  the  view  most  favorable  to 
the  plaintiff,  that  the  defendant  was  bound  by  an  implied  contract 
to  give  him  a  check  showing  that  he  was  entitled  to  travel  in  the 
second  car,  and  that  it  failed  to  do  so ;  in  consequence  of  which  he 
was  forced  to  leave  the  second  car.  It  does  not  appear  that  the 
defendant  had  any  rule  requiring  conductors  to  eject  passengers 
under  such  circumstances.  We  may,  however,  take  notice  of  the 
fact  that  it  is  usual  for  passengers  to  provide  themselves  with  tick- 
ets or  checks,  showing  their  right  to  transportation,  or  else  to  pay 
their  fare  in  money.     It  was  the  practice  for  passengers  on  the  de- 


1066  CARKIERS    OF    PASSENGERS. 

fendant's  road   to  receive  and   use  such  checks;    and  the  plaintiff 
intended  to  conform  to  this  practice. 

The  conductor  of  a  street-railway  car  cannot  reasonably  be  re- 
quired to  take  the  mere  word  of  a  passenger  that  he  is  entitled  to 
be  carried  by  reason  of  having  paid  a  fare  to  the  conductor  of  an- 
other car;  or  even  to  receive  and  decide  upon  the  verbal  statements 
of  others  as  to  the  fact.     The  conductor  has  other  duties  to  perform, 
and  it  would  often  be  impossible  for  him  to  ascertain  and  decide 
upon  the  right  of  the  passenger,  except  in  the  usual,  simple,  and 
direct  way.     The  checks  used  upon  the  defendant's  road  were  trans- 
ferable, and  a  proper  check,  when  given,  might  be  lost  or  stolen,  or 
delivered  to  some  other  person.     It  is  no  great  hardship  upon  the 
passenger  to  put  upon  him  the  duty  of  seeing  to  it,  in  the  first  in- 
stance, that  he  receives  and  presents  to  the  conductor  the  proper 
ticket  or  check;  or,  if  he  fails  to  do  this,  to  leave  him  to  his  remedy 
against  the  company  for  a  breach  of  its  contract.     Otherwise,  the 
conductor  must  investigate  and  determine  the  question,  as  best  he 
can,  while  the  car  is  on  its  passage.     The  circumstances  would  not 
be  favorable  for  a  correct   decision  in  a  doubtful   case.     A  wrong 
decision  in  favor  of  the  passenger  would  usually  leave  the  company 
without  remedy  for  the  fare.     The  passenger  disappears  at  the  end 
of  the  trip;   and,  even   if  it  should  be  ascertained  by  subsequent 
inquiry  that  he  had  obtained   his   passage   fraudulently,  the  legal 
remedy  against  him  would  be  futile.      A  railroad  company  is  not 
expected  to  give  credit  for  the  payment  of  a  single  fare.     A  wrong 
decision,  against  the  passenger,  on  the  other  hand,  would  subject 
the  company  to  liability  in  an  action  at  law,  and  perhaps  with  sub- 
stantial damages.      The  practical  result  would  be,  either  that  the 
railroad  company  would  find  itself  obliged  in  common  prudence  to 
carry  every  passenger  who  should  claim  a  right  to  ride  in  its  cars, 
and  thus  to  submit  to  frequent  frauds,  or  else,  in  order  to  avoid  this 
wrong,  to  make  such  stringent  rules  as  greatly  to  incommode  the 
public,  and  deprive  them  of  the  facilities  of  transfer  from  one  line 
to  another,  which  they  now  enjoy. 

It  is  a  reasonable  practice  to  require  a  passenger  to  pay  his  fare, 
or  to  show  a  ticket,  check,  or  pass;  and,  in  view  of  the  difficulties 
above  alluded  to,  it  would  be  unreasonable  to  hold  that  a  passenger, 
without  such  evidence  of  his  right  to  be  carried,  might  forcibly 
retain  his  seat  in  a  car,  upon  his  mere  statement  that  he  is  entitled 
to  a  passage.  If  the  company  has  agreed  to  furnish  him  with  a 
proper  ticket,  and  has  failed  to  do  so,  he  is  not  at  liberty  to  assert 
and  maintain  by  force  his  rights  under  that  contract;  but  he  is 
bound  to  yield,  for  the  time  being,  to  the  reasonable  practice  and 
requirements  of  the  company,  and  enforce  his  rights  in  a  more 
appropriate  way.  It  is  easy  to  perceive  that,  in  a  moment  of  irrita- 
tion or  excitement,  it  may  be  unpleasant  to  a  passenger  who  has 
once  paid  to  submit  to  an  additional  exaction.     But,  unless  the  law 


REGULATIONS.  1067 

holds  him  to  do  this,  there  arises  at  once  a  conflict  of  rights.  His 
right  to  transportation  is  no  greater  than  the  right  and  duty  of  the 
conductor  to  enforce  reasonable  rules,  and  to  conform  to  reasonable 
and  settled  customs  and  practices,  in  order  to  prevent  the  company 
from  being  defrauded;  and  a  forcible  collision  might  ensue.  The 
two  supposed  rights  are  in  fact  inconsistent  with  each  other.  If  the 
passenger  has  an  absolute  right  to  be  carried,  the  conductor  can 
have  no  right  to  require  the  production  of  a  ticket  or  the  payment 
of  fare.  It  is  more  reasonable  to  hold  that,  for  the  time  being,  the 
passenger  must  bear  the  burden  which  results  from  his  failure  to 
have  a  proper  ticket.  It  follows  that  the  plaintiff  was  where  he 
had  no  right  to  be,  after  his  refusal  to  pay  a  fare,  and  that  he  might 
properly  be  ejected  from  the  car.  This  decision  is  in  accordance 
with  the  principle  of  the  decisions  in  several  other  States,  as  shown 
by  the  cases  cited  for  the  defendant;  and  no  case  has  been  brought 
to  our  attention  holding  the  contrary. 

Judgment  for  the  defendant) 


MURDOCK  v.   BOSTON,   etc.    R.    CO. 
137  Mass.  293.     1884. 

Tort  for  being  expelled  from  a  train  on  the  defendant's  railroad 
at  Pittsfield,  and  for  false  imprisonment  in  the  lockup  of  that  town. 
[The  facts  are  sufficiently  stated  in  the  opinion.] 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $4500; 
and  the  defendant  alleged  exceptions. 

C.  Allen,  J.  It  appears  that  the  defendant's  agent  and  ticket- 
seller  told  the  plaintiff  that  the  two  tickets  would  be  good  for  a  pas- 
sage from  Springfield  to  North  Adams,  and  explained  the  meaning 
of  the  punched  holes,  and,  with  a  full  understanding  of  exactly 
what  the  tickets  were  and  of  what  the  plaintiff  wanted,  sold  them 
to  him  as  tickets  good  for  his  contemplated  trip.  There  was  noth- 
ing on  their  face  to  show  the  contrary  to  the  plaintiff,  and  he  took 
and  paid  for  them  on  the  strength  of  these  explanations  and  assur- 
ances of  the  ticket-seller.  There  was  no  mistake  on  the  part  of 
either  as  to  where  the  plaintiff  wished  to  go,  or  what  terms  were 

i  Ace  ■  Pennington  v.  Illinois  Cent.  R.  Co.,  252  111.  587, 97  N.  E.  R.  289,  37  L.  R. 
A  N.  S.  983.  Contra  :  Louisville  &N.  R.  Co.  v.  Scott,  141  Ky.  538, 133  S.  W.  R. 
800,  34  L.  R.  A.  N.  S.  206  ;  Smith  v.  Southern  R.  Co.,  88  S.  C.  421,  70  S.  E.  R. 
1057,  34  L.  R.  A.  N.  S.  708. 


1068  CARRIERS   OF   PASSENGERS. 

actually  expressed  upon  the  tickets,  or  what  marks  or  punched  holes 
they  bore.     The  circumstances  of  there  being  two  tickets,  and  of 
the  holes  in  one  of  them,  naturally  induced  inquiry  by  the  plaintiff, 
and  he  had  no  reason  to  distrust  the  correctness  of  the  explanations 
which  were  given  to  him.     The  ticket-seller  assumed  to  know,  and 
gave  assurances  which  the  plaintiff  had  a  right  to  rely  on,  and  which 
he  did   rely  on.     If,    when   the   conductor   refused   to   accept  the 
punched  ticket,  it  had  appeared  on  an  inspection  of  it  that  there 
had  been  a  mistake,  and  that  it  did  not  on  its  face  purport  to  be 
good  for  a  passage  over  that  part  of  the  defendant's  road,  and  that 
the  ticket-seller  had  delivered  to  the  plaintiff  a  good  ticket  upon 
some   other   railroad,   or   to   some   place   which   had   already   been 
passed,  when  the  mistake  was  discovered,  and  it  was  found   that 
the  plaintiff  had  through  inadvertence  accepted  a  ticket  which  on 
its  face  was  plainly  insufficient,  then  this  case  would  have  fallen 
within  the  doctrine  of   the  recent   decision  in  Bradshaw  v.   South 
Boston  Eailroad,  135  Mass.  407,  and  it  would  have  been  the  duty 
of  the  plaintiff  to  yield  for  the  time  being,  and  pay  his  fare  anew, 
or  withdraw  from  the  car,  unless  a  distinction  should  be  taken  be- 
tween the  rights  of  passengers  upon  steam  railways  and  street  rail- 
ways, under  such  circumstances,  —  a  question  which  we  do  not  now 
consider.     See  Cheney  v.  Boston  &  Maine  Railroad,  11  Met.  121; 
Yorton  v.   Milwaukee,    Lake  Shore  &   Western  Railway,  54  Wis. 
234;  Townsend  v.  New  York  Central  &  Hudson  River  Railroad,  56 
N.  Y.  295  [1057]  ;  Petrie  v.  Pennsylvania  Railroad,  13  Vroom,  449 ; 
Dietrich  v.  Pennsylvania   Railroad,  71  Penn.  St.  432;  "Frederick  v. 
Marquette,  Houghton  &  Ontonagon  Railroad,  37  Mich.  342  [1060]  ; 
McClure  v.    Philadelphia,    Wilmington   &   Baltimore  Railroad,  34 
Md.  532. 

But,  in  the  present  case,  such  is  not  the  position  of  the  parties. 
As  has  been  seen,  the  plaintiff  not  only  was  not  guilty  of  any  negli  ■ 
gence  in  accepting  his  ticket,  but  he  examined  it  carefully,  saw 
everything  there  was  on  it,  and  received  explanations  of  the  mean- 
ing of  the  punched  holes,  and  assurances  that  the  two  tickets,  in 
the  condition  in  which  they  were,  would  be  good  for  the  trip.  In 
such  a  case,  there  being  no  mistake  or  inadvertence  on  his  part 
in  the  respects  mentioned,  and  the  tickets  which  were  delivered 
being  in  all  particulars  such  as  were  intended  to  be  delivered,  and 
there  being  nothing  which  could  be  gathered  by  inspection  to  show 
that  they  were  insufficient,  and  no  notice  of  their  insufficiency  being 
given  to  the  plaintiff  by  anybody,  or  in  any  form,  until  he  had 
already  entered  upon  and  partially  accomplished  his  journey  over 
the  defendant's  road,  he  might  well  insist  upon  being  allowed  to 
complete  that  journey.  If  the  defendant's  superintendent  or  presi- 
dent, or  both  of  them,  had  been  standing  by  when  the  plaintiff  pur- 
chased his  tickets,  and  had  heard  and  assented  to  what  was  said  by 
the  ticket-seller,  and  if  they  also  were  under  the  same  mistake  as  to 


REGULATIONS. 


1069 


the  rules  established  for  the  guidance  of  conductors,  the  legal  posi- 
tion of  the  plaintiff  would  hardly  have  been  stronger  than  it  is  at 
present.  It  would  still  be  the  case  that  he  took  his  tickets  relying 
on  the  mistaken  assurances  of  the  defendant's  agent  in  respect  to 
their  validity.  If  the  defendant,  through  any  imperfection  in  its 
rules  or  methods,  or  any  ignorance  or  violation  of  rules  or  in- 
structions by  its  agents,  has  been  led  into  any  interference 
with  the  rights  of  the  plaintiff  under  such  circumstances,  it  must 
abide  the  consequences.  To  hold  the  contrary  would  be  a  burden 
upon  passengers  such  as  is  called  for  by  no  reason  of  necessity  or 
expediency. 

On  the  other  hand,  it  is  no  more  than  a  wholesome  requirement 
that  railway  companies  should  be  responsible  in  damages  for  the 
consequences  of  a  mishap  such  as  occurred  in  the  present  case.  The 
conductor's  explanation  of  the  meaning  of  the  two  punched  holes 
might  or  might  not  be  correct;  at  any  rate,  their  meaning  was 
purely  arbitrary,  and,  so  far  as  the  plaintiff  could  see,  the  conduc- 
tor's interpretation  was  no  more  probable  or  intelligible  than  that 
given  by  the  ticket-seller.  The  plaintiff  had  a  right  to  act  upon  the 
explanations  given  to  him  at  the  time  "when  he  bought  his  ticket. 
The  mistake  was  that  of  the  ticket-seller,  in  supposing  that  the 
punched  holes  signified  that  the  ticket  had  been  used  only  to  Ches- 
ter, whereas  in  fact,  according  to  the  defendant's  rules  for  the  in- 
struction and  guidance  of  conductors,  they  signified  that  it  had  been 
used  to  Fittsfield,  a  station  farther  on.  The  offer  of  the  conductor 
to  give  a  receipt  to  the  plaintiff  for  the  additional  fare  which  he 
demanded,  stating  the  circumstances  under  which  it  was  paid,  so 
that  the  plaintiff  might  get  back  the  money,  if  it  should  be  found 
that  his  account  of  the  purchase  of  the  ticket  was  true,  though 
showing  good  faith  on  the  part  of  the  conductor,  did  not  have  the 
effect  to  make  it  the  legal  duty  of  the  plaintiff  to  pay  the  additional 
fare. 

It  follows  that  all  the  instructions  requested  were  properly  re- 
fused, except  as  modified  by  the  presiding  judge;  and  the  instruc- 
tions which  were  given  were  clearly  and  accurately  expressed. 
Maroney  v.  Old  Colony  &  Newport  Railway,  106  Mass.  153. 

Exceptions  overruled. 


PHILADELPHIA,    W.    &  B.    R.    CO.    v.   RICE. 

64  Md.  63.     1885. 

Robinson,  J.  The  appellee,  plaintiff  below,  bought  a  round-trip 
ticket  from  Wilmington  to  Philadelphia.  The  ticket  was  in  two 
coupons,  attached  to  each  other,  one  being  for  the  trip  to  Philadel- 


1070  CARRIERS   OF   PASSENGERS. 

phia,  and  the  other  for  the  return  trip.  Shortly  after  leaving  Wil- 
mington the  conductor  came  through  for  tickets,  took  the  plaintiff's 
ticket,  tore  off  the  coupon  for  the  trip  to  Philadelphia,  and,  by  mis- 
take, punched  the  return  coupon.  A  few  minutes  after  he  came 
back  and  said  to  plaintiff:  "  Let  me  see  that  ticket.  I  think  I  have 
made  a  mistake."  He  then  took  the  ticket  which  was  the  return 
coupon  punched  by  him,  and  wrote  on  the  back  of  it  with  a  pencil 
the  words,  "Cancelled  by  mistake,"  and  returned  it  to  the  plaintiff 
saying:  "I  have  fixed  it  all  right.  Xow  you  can  ride  on  it."  The 
next  day,  the  plaintiff,  on  the  return  trip  to  Wilmington,  handed  to 
the  conductor  of  that  train  the  punched  coupon,  which,  however,  he 
declined  to  accept,  because  it  had  been  cancelled.  The  plaintiff 
then  called  his  attention  to  the  writing  on  the  back  of  the  ticket, 
and  explained  how  it  had  been  punched  and  the  mistake  corrected 
by  the  conductor  on  the  trip  to  Philadelphia.  But  the  conductor 
declined  to  accept  the  explanation,  saying  to  the  plaintiff:  "Any- 
body could  have  written  that.  You  could  have  done  it  yourself." 
The  mistake,  it  seems,  had  not  been  corrected  according  to  the  rules 
of  the  company,  which  required  the  conductor  making  the  mistake 
to  draw  a  ring  around  the  cancellation  mark,  and  write  on  the  back 
of  the  ticket  the  word  "Error"  and  sign  his  name  or  initials.  The 
conductor  accordingly  demanded  of  the  plaintiff  the  fare  from  Phila- 
delphia to  Wilmington,  and,  upon  his  refusal  to  pay  it,  he  was  put 
off  the  train.  Upon  these  facts  it  is  admitted  an  action  will  lie 
against  the  company  for  a  breach  of  contract  as  a  carrier,  or  for  the 
negligence  of  the  conductor  in  cancelling  the  plaintiff's  ticket,  and 
thereby  destroying  the  only  evidence  of  his  right  to  the  return  trip; 
but.  inasmuch  as  the  cancellation  had  not  been  corrected  according 
to  the  rules  of  the  company,  the  ejection  of  the  plaintiff,  under  such 
circumstances,  it  is  argued,  does  not  in  itself  furnish  a  substantive 
ground  of  action.  We  shall  not  stop  to  examine  the  several  cases 
relied  on  in  support  of  this  contention.  Hufford  v.  Railroad  Co., 
18  Reporter,  147 ;  Frederick  v.  Railroad  Co.,  37  Mich.  342  [1060]  ; 
Yorton  v.  Railway  Co.,  57  Wis.  234;  11  N".  W.  Rep.  482;  Bradshaw 
v.  Railroad  Co.,  135  Mass.  407  [1064].  It  is  sufficient  to  say  the 
facts  in  this  case  differ  materially  from  the  facts  in  those  cases. 
Here  the  plaintiff  was  wholly  without  fault.  He  had  purchased  a 
ticket  which  entitled  him  to  a  round  trip  from  Wilmington  to  Phila- 
delphia. The  return  coupon  was  cancelled  through  the  mistake  of 
the  conductor.  This  error  he  attempted  to  correct  and  informed  the 
plaintiff  that  it  was  all  right.  The  latter  had  a  right  to  rely  on  this 
assurance,  and  that  the  ticket  for  which  he  had  paid  his  money  en- 
titled him  to  return  to  Wilmington.  If  the  servants  of  the  appel- 
lant, under  such  circumstances,  laid  their  hands  forcibly  on  the 
person  of  the  plaintiff,  and  compelled  him  to  leave  the  car,  there 
was  not  merely  a  breach  of  contract  on  the  part  of  the  company,  but 
an  unlawful  interference  with  the  person  of  the  plaintiff,   and  an 


REGULATIONS.  1071 

indignity  to  his  feelings  for  which  an  action  will  lie,  and  for  which 
he  is  entitled  to  be  compensated  in  damages.  Such  is  the  well-set- 
tled law  of  this  State  and  of  this  country.  The  mistake  by  which 
the  plaintiff's  ticket  was  cancelled  was  the  mistake  of  the  appellant's 
servant,  and  it  must  abide  the  consequences.  There  was  no  error 
therefore  in  the  rulings  of  the  court  in  this  respect. 

But,  in  addition  to  damages  for  the  unlawful  interference  with 
the  person  of  the  plaintiff,  and  the  indignity  to  his  character  and 
feelings,  the  court  also  instructed  the  jury  that,  if  he  was  mali- 
ciously or  wantonly  ejected  from  the  train,  he  was  entitled  to  recover 
exemplary  damages  as  a  punishment  to  the  appellant.  Now,  we 
have  not  been  able  to  find  a  particle  of  evidence  from  which  the  jury 
could  find  that  the  plaintiff  was  wantonly  or  maliciously  ejected 
from  the  car.  The  ticket  which  he  handed  to  the  conductor  Matti- 
son  was  a  cancelled  ticket,  one  which  upon  its  face  showed  it  had 
been  used.  It  had  been  cancelled,  it  is  true,  by  the  mistake  of  an- 
other conductor,  but  this  mistake  had  not  been  corrected  according 
to  the  rules  of  the  company.  Mattison  could  not  therefore  recog- 
nize it  as  a  ticket  entitling  the  plaintiff  to  the  trip  to  Wilmington, 
and,  if  the  latter  refused  to  pay  his  fare  or  to  leave  the  car,  the  con- 
ductor was  obliged  to  eject  him  forcibly.  The  proof  shows  the  con- 
ductor acted  in  good  faith,  and  in  obedience  to  the  rules  of  the 
company,  and  that  no  greater  force  was  used  than  was  actually 
necessary.  No  complaint  is  made  by  the  plaintiff  in  his  testimony 
of  unnecessary  force,  or  that  any  abusive  language  was  used.  The 
brakeman,  he  says,  "  put  his  hand  on  his  shoulder,  and  pulled  him 
across  the  person  who  was  sitting  by  him."  At  first  he  had  made 
up  his  mind  to  resist,  but  upon  the  advice  of  friends  he  concluded 
to  go  out  without  further  resistance.  The  testimony  of  his  friends 
Eriedenrich  and  Hobbs  is  to  the  same  effect.  Hobbs  says  the  man- 
ner "  of  the  conductor  and  brakeman  was  firm  and  decided.  They 
looked  angry."  This  is  the  evidence  on  the  part  of  the  plaintiff  to 
support  the  claim  for  punitive  damages,  damages  as  a  punishment 
to  the  appellant  for  having  acted  in  bad  faith,  or  maliciously,  or 
wantonly,  or  in  a  spirit  of  oppression.  The  case,  it  seems  to  us,  is 
wanting  in  every  element  necessary  to  entitle  the  plaintiff  to  vindic- 
tive damages.  Camp,  as  a  passenger  who  saw  and  heard  all  that 
took  place,  says:  "The  conductor1  told  the  plaintiff  he  must  have  all 
the  tickets  regular,  and  hoped  he  would  not  think  hard  of  him.  His 
orders  were  imperative  and  he  was  only  doing  his  duty.  The  brake- 
man  put  his  hand  gently  on  plaintiff's  shoulder  and  he  went  out 
without  resistance.  All  the  parties,"  witness  thought,  "acted  like 
gentlemen."  This  case  comes  before  us  a  second  time,  and  we  nat- 
urally feel  some  reluctance  in  sending  it  back  for  another  trial. 
But  as  there' is  no  evidence  from  which  the  jury  could  reasonably 
find  that  the  plaintiff  was  wantonly  or  maliciously  put  off  the  train, 
the  court  erred  in  granting  the  plaintiff's  third  prayer,  by  which  the 


1072  CARRIERS   OF   PASSENGERS. 

question  of  punitive  damages  was  submitted  to  the  finding  of  the 
jury.     Judgment  reversed,  and  new  trial  awarded. 
Bryan,  J.,  dissents. 


KANSAS   CITY,    etc.    R.    CO.   v.   RILEY. 
68  Miss.  765.     1891. 

Action  for  damages  against  the  railroad  company  for  ejecting  ap- 
pellee from  a  train.  On  the  trial  of  the  case,  at  the  instance  of 
plaintiff,  the  court  gave  the  following  instructions:  — 

"  1.  If  the  jury  believe  from  the  evidence  that  the  plaintiff  pro- 
cured a  round-trip  ticket  from  Myrtle  to  Blue  Springs  and  return, 
and  that  on  her  way  out  to  Blue  Springs,  the  conductor,  Dustin, 
took  from  said  round-trip  ticket  the  return  part  of  said  ticket  and 
left  the  plaintiff  the  out-going  part,  and  plaintiff  did  not  know  this, 
and  that  plaintiff,  in  good  faith,  on  her  return  journey  offered  con- 
ductor Hadaway  the  portion  of  the  ticket  not  taken  from  her,  and 
said  last  conductor  requested  her  to  leave  the  train  or  pay  fare  again 
at  any  rate,  then  this  was  wrongful  on  the  part  of  said  conductor, 
and  defendant  is  liable  in  damages  therefor  to  plaintiff. 

"  2.  The  court  further  charges  the  jury  for  the  plaintiff,  that  the 
law  implies  some  damage  for  the  violation  of  every  legal  right,  the 
amount  to  be  determined  by  the  jury  according  to  the  evidence. 

"3.  If  the  jury  believe  from  the  evidence  in  the  case  that  the 
conduct  of  the  conductor  Hadaway  toward  Mrs.  Riley  was  charac- 
terized by  rudeness  and  violence,  or  gross  carelessness  and  wilful 
wrong,  they  may  find  for  the  defendant  punitive  damages  as  a  pun- 
ishment to  the  defendant  for  such  conduct,  and  they  are  the  judges 
of  the  proper  amount  according  to  the  law  and  evidence  in  the 
case." 

These  instructions  were  objected  to,  and  the  court  was  asked  to 
instruct  the  jury  to  find  for  defendant.  This  being  refused,  defend- 
ant asked  an  instruction  to  the  effect  that  plaintiff  could  only  re- 
cover the  value  of  the  ticket  from  Blue  Springs  to  Myrtle,  for  loss 
of  time,  and  such  other  actual  damages  as  she  sustained.  This  was 
refused  as  well  as  other  instructions  asked,  announcing,  in  effect, 
the  converse  of  the  propositions  stated  in  plaintiff's  instructions. 
After  verdict  and  judgment  for  plaintiff,  defendant  made  a  motion 
for  a  new  trial,  which  was  overruled.  The  opinion  contains  a  fur- 
ther statement  of  the  case. 

Cooper,  J.  On  or  about  the  3d  of  September,  1889,  the  plain- 
tiff, with  her  husband,  purchased  from  the  agent  of  appellant  at 
Myrtle  two  tickets  for  transportation  over  appellant's  road  to  Blue 
Springs  and  return,  both  places  being  stations  on  appellant's  road. 


REGULATIONS. 


1073 


These  tickets  were  handed  to  the  conductor  on  the  train  running 
from  Myrtle  to  Blue  Springs,  and  by  accident  and  mistake  he  re- 
turned to  the  passengers  the  wrong  part  of  the  tickets,  giving  to 
them  that  portion  which  called  for  transportation  from  Myrtle  to 
Blue  Springs,  which  he  should  have  kept,  and  retaining  that  por- 
tion calling  for  passage  from  Blue  Springs  to  Myrtle,  which  he 
should  have  returned  to  the  passengers.  The  plaintiff  went  from 
Blue  Springs  to  Sherman,  another  station  on  appellant's  road,  and, 
on  the  6th  of  September,  being  desirous  of  returning  to  Myrtle,  she 
purchased  a  ticket  from  Sherman  to  Blue  Springs,  and  for  the  jour- 
ney from  that  place  to  Myrtle  tendered  that  portion  of  the  round- 
trip  ticket  from  Myrtle  to  Blue  Springs  that  had  been  returned  to 
her  by  the  conductor  on  the  3d,  but  this  ticket  the  conductor  refused 
to  accept,  because  it  entitled  the  bearer  to  transportation  from  Myr- 
tle to  Blue  Springs,  and  not  from  Blue  Springs  to  Myrtle. 

The  plaintiff  had  not  before  noticed  the  mistake  that  had  been 
made  by  the  other  conductor,  but  then  explained  to  the  conductor 
of  the  train  upon  which  she  was  travelling  how  it  had  occurred,  and 
insisted  upon  her  right  to  be  carried  on  the  ticket.  But  this  he  de- 
clined, and  informed  the  plaintiff  that  she  must  either  pay  train 
fare,  buy  a  ticket  at  Blue  Springs  when  the  train  should  reach  that 
point,  or  leave  the  train  there.  The  plaintiff  and  the  conductor  tes- 
tified to  about  the  same  facts  as  to  what  transpired  until  the  train 
reached  Blue  Springs,  at  which  point,  as  the  conductor  stated,  the 
plaintiff  and  her  husband  left  the  train  upon  his  refusal  to  carry 
them  on  the  tickets  they  then  had,  while  the  plaintiff  testified  that 
the  conductor  spoke  to  her  in  an  angry  manner,  and  took  her  by  the 
arm  to  put  her  off  the  train. 

At  all  events,  the  plaintiff  left  the  train  at  Blue  Springs  with  her 
husband  and  there  remained  until  the  following  day,  and  brings  this 
suit  for  damages  against  the  appellant.  The  jury  awarded  her  dam- 
ages in  the  sum  of  $300,  and,  from  a  judgment  for  that  sum,  the 
defendant  appeals. 

The  decisions  are  in  direct  and  palpable  conflict  upon  the  liability 
of  a  common  carrier  for  failure  to  transport  a  passenger  under  the 
circumstances  named.  In  New  York,  Michigan,  Illinois,  Mary- 
land, Ohio,  Wisconsin,  Connecticut,  Xew  Jersey,  Massachusetts, 
and  North  Carolina  it  seems  to  have  been  decided  that  the  ticket 
presented  by  the  passenger  is  the  only  evidence  of  his  right  to  travel 
upon  the  train  which  can  be  recognized  by  the  conductor,  and  that 
if  by  reason  of  the  negligence  of  other  servants  of  the  carrier,  a 
wrong  ticket  has  been  given  to  the  passenger,  or  the  right  ticket  has 
been  given  to  him,  but  erroneously  taken  from  him,  the  passenger's 
right  of  action  is  for  the  wrong  thus  committed,  and  that  he  may 
not  insist  upon  his  right  to  travel  on  the  wrong  ticket  or  without  it, 
when  it  has  been  taken  up,  and  recover  damages  for  the  refusal  of 
the  carrier  to  permit  him  to  do  so,  and  that  the  carrier  may  law- 


1074  CARRIERS    OF   PASSENGERS. 

fully  eject  him  from  its  train,  using  no  more  force  than  is  necessary 
for  that  purpose. 

The  authorities  in  support  of  this  rule  are  found  in  the  hrief  of 
counsel  for  appellant.  On  the  other  hand,  it  is  held  in  Georgia  and 
Indiana,  that  the  passenger  is  entitled  to  travel  according  to  his  real 
contract  with  the  carrier,  where  the  mistake  in  giving  the  proper 
ticket  or  in  taking  up  a  proper  one  held  by  the  passenger  is  caused 
by  the  negligence  of  the  servants  of  the  carrier.  R.  R.  Co.  v.  Fixe, 
11  Am.  &  Eng.  Ry.  Cas.  108. 

In  a  more  recent  case  in  Michigan  than  those  cited  by  appellant's 
counsel,  Hufford  v.  Railroad  Co.,  64  Mich.  634,  the  plaintiff  had 
applied  and  paid  for  a  ticket  from  Manton  to  Traverse  City.  The 
agent  gave  him  a  ticket  previously  issued  for  a  ride  from  Sturgis  to 
Traverse  City.  There  was  evidence  tending  to  show  that  the  ticket 
had  been  cancelled  by  conductor's  marks  for  a  ride  between  Sturgis 
and  Walton,  and  the  trial  court  instructed  the  jury  that  "if  they 
believed  the  ticket  was  punched,  indicating  to  the  conductor  by  the 
punch-mark  that  it  had  been  used  before  between  Grand  Rapids  and 
Walton,  that  would  be  evidence  of  an  infirmity  in  the  ticket,  and 
the  plaintiff  would  not  be  entitled  to  insist  upon  that  ticket  being 
received."  This  instruction  was  held  to  be  erroneous,  the  court 
saying:  "When  the  plaintiff  told  the  conductor  on  the  train  that  he 
had  paid  his  fare,  and  stated  the  amount  he  had  paid  to  the  agent 
who  gave  him  the  ticket  he  presented,  and  told  him  it  was  good,  it 
was  the  duty  of  the  conductor  to  accept  the  statement  of  the  plain- 
tiff until  he  found  out  it  was  not  true,  no  matter  what  the  ticket 
contained  in  words,  figures,  or  other  marks." 

The  most  remarkable  thing  about  this  decision  is,  that  it  was 
made  in  the  same  case  upon  the  same  facts  and  between  the  same 
parties  as  that  reported  in  53  Mich.  118,  in  which,  in  an  opinion 
delivered  by  Judge  Cooley,  it  was  held  that,  as  between  the  conduc- 
tor and  the  passenger,  "the  ticket  must  be  conclusive  evidence  of 
the  extent  of  the  passenger's  right  to  travel." 

There  is  a  class  of  cases  somewhat  analogous  to  the  present  one, 
in  which,  by  a  uniform  course  of  decisions  so  far  as  we  are  informed, 
it  is  held  that  the  conductor  must  accept  the  statements  of  the  pas- 
senger. We  refer  to  those,  cases  in  which  different  rates  are  charged 
for  one  who  has  procured  a  ticket  and  one  who  pays  upon  the  train. 
It  is  held  that,  as  a  condition  precedent  to  the  exercise  of  this  right 
to  charge  higher  train-rates,  and  to  expel  one  refusing  to  pay  them, 
a  reasonable  opportunity  must  be  given  by  the  carrier  to  the  pas- 
senger to  procure  the  ticket  required,  and  that  one  to  whom  no  such 
opportunity  has  been  afforded,  and  who  for  refusing  to  pay  the 
higher  rate  is  expelled  from  the  train,  may  recover  damages  there- 
for. Hutchinson  on  Carriers,  §  571,  and  authorities  in  note  2;  For- 
see  v.  Eailroad  Co. ,  63  Miss.  66. 

Without  determining  more  upon   this  disputed  question  than  is 


.EEGULATIONS.  1075 

necessary  for  the  decision  of  the  case  before  us,  it  is  sufficient  to 
say  that  where,  as  here,  the  ticket  in  the  hands  of  the  passenger 
supports  and  confirms  the  truth  of  his  statement,  and  no  possible 
injury  can  result  to  the  carrier  by  the  conductor's  accepting  and  act- 
ing thereon,  he  must  so  act,  or  refuse,  at  the  peril  of  inviting  an 
action  for  damages  against  his  principal  if  the  statement  be  true. 

We  do  not  decide  that  a  person  holding  a  ticket  from  Myrtle  to 
Blue  Springs  has  a  right  to  ride  from  Blue  Springs  to  Myrtle,  but 
no  real  injury  could  result  to  the  carrier  in  recognizing  such  right, 
for  the  distance  is  the  same,  and  in  the  usual  course  of  business  as 
many  trains  pass  in  one  direction  as  the  other.  What  we  do  decide 
is,  that  a  passenger  holding  and  attempting  to  use  such  ticket  under 
the  circumstances  disclosed  in  this  record,  and  explaining  to  the 
conductor  how  the  mistake  occurred  by  which  the  ticket  read  in  the 
wrong  direction,  makes  such  a  reasonable  and  probable  showing  as 
entitles  him  to  be  dealt  with  as  a  passenger,  and  therefore  that  any 
regulation  of  the  carrier  authorizing  the  conductor  of  its  trains  to 
disregard  such  statement  is  unreasonable,  and  need  not  be  submitted 
to  by  the  passenger. 

We  find  no  error  in  the  record  for  which  the  judgment  should  be 
reversed,  and  it  is 

Affirmed. 


SWAN   v.   MANCHESTER,    etc.    R. 
132  Mass.  116.     18S2. 

Tort  in  two  counts.  The  first  count  was  for  expelling  the  plain- 
tiff from  the  defendant's  cars  at  Windham,  in  the  State  of  New 
Hampshire.  The  second  count  was  for  refusing  to  sell  the  plaintiff 
a  ticket  entitling  him  to  be  carried  over  the  defendant's  railroad 
from  said  Windham  to  Lawrence,  in  this  Commonwealth.  The  case 
was  submitted  to  the  Superior  Court,  and,  after  judgment  for  the 
defendant,  to  this  court  on  appeal,  upon  agreed  facts,  the  material 
parts  of  which  appear  in  the  opinion. 

Devens,  J.  The  regulation  that  all  passengers,  who  shall  pur- 
chase tickets  before  entering  the  cars  of  a  railroad  company  to  be 
transported  therein,  shall  be  entitled  to  a  small  discount  from  the 
advertised  rates  of  fare,  but,  if  such  ticket  is  not  purchased,  the  full 
rate  of  fare  shall  be  charged,  is  a  reasonable  one,  and  in  no  way 
violates  the  rule,  which  in  New  Hampshire  has  the  sanction  of  the 
statute  law,  that  the  rates  shall  be  the  same  for  all  persons  between 
the  same  points.  Commonwealth  v.  Power,  7  Met.  596;  Johnson 
v.  Concord  Railroad,  46  N.  H.  213;  St.  Louis,  Alton  &  Terre 
Haute  Railroad  v.  South,  43  111.  176;  Illinois  Central  Railroad  v. 
Johnson,  67  111.  312;    Indianapolis,  Peru  &    Chicago   Railroad  v, 


1076  CARRIERS   OF    PASSENGERS. 

Rinard,  4G  Ind.  293;  Du  Laurans  v.  St.  Paul  &  Pacific  Railroad, 

15  Minn.  49. 

The  number  of  persons  carried,  the  rapidity  with  which  the  cars 
move,  the  frequency  and  shortness  of  their  stops,  the  delay  and  in- 
convenience of  making  change,  the  various  details  to  be  attended  to 
by  the  conductor  while  the  train  is  in  motion  or  at  the  stations,  and 
the  importance  to  the  railroad  company  of  conducting  its  business 
at  fixed  places,  render  the  mode  of  payment  by  tickets  previously 
purchased  one  of  advantage  to  the  railroad  company  and  of  conveni- 
ence to  the  public.  A  passenger  who  is  without  a  ticket  and  de- 
clines to  pay  full  fare  may  ordinarily  be  ejected  from  a  train  at  a 
station,  as  one  may  who  absolutely  refuses  to  pay  his  fare.  State  v. 
Goold,  53  Maine,  279;  Stephen  v.  Smith,  29  Vt.  160;  Hilliard  v. 
Goold,  34  N.  H.  230,  and  cases  above  cited. 

These  positions  are  not  controverted  by  the  plaintiff,  who  main- 
tains that,  although  he  had  no  ticket,  he  was  entitled  to  be  carried 
for  the  price  of  one,  in  view  of  his  failure  to  procure  one  under  the 
circumstances  hereafter  stated.     The  table  of  prices  advertised  by 
the  defendant  authorized  the  ticket-seller  to  make  a  discount  of  fif- 
teen cents,  had  the  plaintiff  purchased  one  for  the  journey  he  pro- 
posed to  make  from  Derry  to  Lawrence,  the  advertised  fare  being 
sixty-five  cents.     Until  the  time  advertised  for  the  departure  of  the 
train  from  Derry  had  expired,  the  ticket-seller  had  been  in  his  office. 
He  left  it  after  that  time,  and  while  the  train  was  approaching,  in 
order  to  aid  the  station  agent,  as  he  was  accustomed  to  do,  in  load- 
ing the  baggage  upon  the  passenger  trains.     While  the  plaintiff  did 
not  approach  the  ticket-office  to  find  it  vacant  and  the  ticket-seller 
absent  until  after  the  time  had  expired  for  the  departure  of  the  train 
as  advertised,  there  was  sufficient  time  for  him  to  have  procured  his 
ticket  before   the   train  actually  started   from   the  station,    if   the 
ticket-seller  had  then  been  in  the  office.     He  entered  the  train  with- 
out a  ticket,  and  the  conductor,  acting  according  to  the  rules  of  the 
company,    demanded  the  full   price   for  the  fare,    sixty-five  cents, 
which  the  plaintiff  refused  to  pay,   insisting  upon  his  right  to  be 
carried  for  fifty  cents,  the  price  of  a  ticket,  which  he  tendered,  but 
which  the  conductor  refused,  telling  the  plaintiff  he  must  leave  the 
train  at  the  next  station,  unless  the  demand  for  full  fare  was  com- 
plied with.      On  the  arrival  of  the  train  at  the  next  station,  the 
plaintiff,  failing  to  comply  with  the  demand  of  the  conductor,  was 
ordered  by  him  to  leave  the  train,  which  he  did. 

Upon  this  part  of  his  case,  the  plaintiff  contends  that,  inasmuch 
as  he  went  to  the  office  to  procure  a  ticket,  and  was  unable  so  to  do, 
as  above  stated,  he  was  entitled  to  be  carried  for  the  price  of  a 
ticket,  which  he  tendered,  and  that  his  exclusion  from  the  train  was 
therefore  unjustifiable. 

It  has  been  held  in  a  few  cases  that  the  offer  to  carry  passengers 
at  a  less  rate  if  tickets  were  procured,  was  in  the  nature  of  a  pro- 


REGULATIONS.  1077 

posal,  like  other  proposals  to  enter  into  a  contract,  dependent  for  its 
acceptance  upon  the  compliance  with  its  condition ;  that  it  might  be 
withdrawn  at  any  time;  that  closing  the  office  for  the  sale  of  tickets 
was  such  withdrawal;  and  that  the  offer  carried  with  it  no  obliga- 
tion on  the  part  of  the  company  to  open  an  office,  or  to  keep  such 
office  open  for  any  length  of  time,  it  being  merely  an  offer  to  make 
the  deduction  if  the  ticket  should  be  procured.  Crocker  v.  New 
London,  Willimantic  &  Palmer  Railroad,  24  Conn.  249;  Bordeaux 
v.  Erie  Railway,  8  Hun,  579. 

In  a  much  larger  number  of  cases,  and  with  much  better  reason, 
it  has  been  held  that  where  the  railroad  undertakes  to  conduct  its 
business  by  means  of  tickets,  whether  it  requires,  as  it  may,  the 
possession  of  a  ticket  as  a  prerequisite  to  entering  its  cars,  or 
whether  it  offers  a  deduction  from  the  regular  or  advertised  rate 
to  one  who  shall  procure  a  ticket  in  advance,  it  is  a  part  of  its  duty 
to  afford  a  reasonable  opportunity  to  obtain  its  tickets.  St.  Louis, 
Alton  &  Terre  Haute  Railroad  v.  South,  ubi  sitpra ;  Chicago  & 
Alton  Railroad  v.  Flagg,  43  111.  364;  Jeffersonville  Railroad  v. 
Rogers,  28  Ind.  1  [1051]  ;  Indianapolis,  Peru  &  Chicago  Railroad  v. 
Rinardj  ubi  supra;  Du  Laurans  v.  St.  Paul  &  Pacific  Railroad,  ubi 
supra. 

Adopting  on  this  part  of  the  case  the  rule  most  favorable  to  the 
plaintiff,  he  was  afforded  a  fair  and  reasonable  opportunity  to  obtain 
a  ticket.     Delays  must  necessarily  from  time  to  time  arise  in  the 
progress  of  a  train  from  a  variety  of  incidental  circumstances,  but 
at  the  stations  everything  may  be  definitely  arranged  with  reference 
to  the  time  when  by  the  schedule  the  train  is  to  depart.     A  traveller 
should  be  at  the  station  sufficiently  early  to  make  the  ordinary  pre- 
paration for  his  journey  according  to  this,  and  has  a  right  to  expect 
that  other  matters  in  which  he  is  interested  will  be  accommodated 
to  the  schedule  arranged;  that  suitable  persons  will  then  be  at  the 
station  to  take  charge  of   his  baggage  and  to  provide  him  with  a 
ticket.     The   plaintiff  had  a  reasonable  opportunity  to  procure    a 
ticket,  if  for  a  time  sufficient  to  attend  to  the  business,  and.  up  to 
the  time  when  the  train  was  advertised  to  depart,  the  ticket-office 
was  open  and  there  was  a  proper  person  in  attendance.     The  delay 
of  the  train  did  not  enlarge  his  rights,  nor  could  it  entitle  him  to 
insist  that  at  the  station  whence  he  was  to  start  the  office  of  the 
ticket-seller  should  not  be  closed  until  its  arrival.      Trains  may  be 
delayed  for  hours,    especially  during  the  storms  of  winter,    from 
causes  which  cannot  be  controlled.     The  ticket-sellers,  especially  at 
the  numerous  small  stations,  must  have  imposed  upon  them  various 
other  duties;  and  it  would  not  be  a  reasonable  rule  that  should  com- 
pel them  to  be  at  their  posts  sometimes  for  hours  after  the  time 
when  everything  at  the  station  should  have  been  arranged  for  the 
departure.'    St.  Louis,  Alton  &  Terre  Haute  Railroad  v.  South,  ubi 
supra. 


1078  CARRIERS    OF   PASSENGERS. 

The  cases  of  Porter  v.  New  York  Central  Bail  road,  34  Barb.  353, 
Nellis  v.  New  York  Central  Bailroad,  30  N.  Y.  505,  and  Chase  v. 
New  York  Central  Bailroad,  26  N.  Y.  523,  all  depend  upon  a  stat- 
ute of  New  York  applicable  to  the  New  York  Central  Bailroad  Com- 
pany alone,  which  requires  it,  at  every  station  on  its  road  where 
there  is  a  ticket-office,  to  keep  the  same  open  "at  least  one  hour 
prior  to  the  departure  of  each  passenger  train  from  such  station." 
This  has  been  held  to  mean  its  actual  departure,  and  that  road  is 
necessarily  governed  by  this  positive  provision  of  law. 

The  plaintitf ,  having  no  right  to  insist  on  being  carried  for  the 
price  of  a  ticket,  and  declining  to  pay  the  regular  fare,  was  properly 
expelled  from  the  train  on  its  arrival  at  Windham,  one  of  the  sta- 
tions on  the  road. 

While  the  traiu  stopped  at  Windham,  and  after  the  plaintiff's 
expulsion  therefrom,  he  applied  to  the  ticket-seller  for  a  ticket  from 
Windham  to  Lawrence,  tendered  him  the  money  therefor,  which  the 
ticket-seller  accepted,  but,  upon  being  informed  of  the  fact  by  the 
conductor  that  the  plaintiff  had  taken  passage  at  Deny,  and  re- 
quested not  to  sell  him  a  ticket,  declined  so  to  do,  and  tendered  to  the 
plaintiff  his  money,  which  the  plaintiff  declined  to  receive,  at  the 
same  time  stating  "that  he  wished  to  go  on  that  train."  Under 
the  direction  of  the  conductor,  the  train  started,  leaving  the  plain- 
tiff at  the  station,  and  he  proceeded  thence  to  Lawrence  by  carriage, 
a  distance  of  twelve  miles,  there  not  being  another  train  until  five 
hours  later. 

If  his  original  expulsion  from  the  train  were  lawful,  the  plaintiff 
contends,  on  these  facts,  that  the  railroad  company  has  no  justifica- 
tion for  refusing  thereafter  to  transport  him  to  Lawrence.  The 
plaintiff  did  not  seek  to  purchase  a  ticket  from  Windham,  or  offer 
the  money  therefor,  except  to  prosecute  his  journey  to  Lawrence  by 
the  same  train,  which  he  had  entered  at  Derry,  and  from  which  he 
had  been  rightfully  expelled.  Because  tickets  are  sold  from  Wind- 
ham to  Lawrence,  he  contends  that  he  desired  to  make  a  new  con- 
tract at  the  regular  price  from  that  point,  which  the  defendant,  as 
a  common  carrier  of  passengers,  had  no  right  to  refuse.  Whatever 
might  be  his  rights,  if  he  had  sought  to  purchase  a  ticket  for  or  go 
by  a  subsequent  train  from  Windham,  he  sought  to  continue  a  trans- 
action which  had  begun  by  his  entering  the  cars  at  Derry  to  go  to 
Lawrence,  when  he  had  thus  impliedly  contracted  to  pay  the  regular 
fare  for  that  journey,  which  included  the  distance  from  Windham. 
He  was  not  in  the  situation  of  a  passenger  whose  journey  was  to 
commence  at  Windham;  he  had  already  been  brought  from  Derry, 
and  the  claim  that  he  should  have  been  carried  by  the  same  train 
from  Windham,  on  paying  from  that  point,  was  a  claim  that  he 
might  reneAv  the  same  contract  he  had  already  broken,  by  paying 
for  the  distance  over  which  the  journey  was  yet  to  be  prosecuted, 
while  he  made   no  payment  for  the  distance   over  which  he   had 


REGULATIONS.  1079 

already  been  transported.  While  the  journey  which  he  had  begun 
and  for  which  he  had  contracted  to  pay  continued,  he  could  not  at 
his  pleasure  break  it  into  two  separate  transactions.  That  which 
he  sought  to  make  had  been  included  in  his  original  contract,  and 
the  defendant  was  not  obliged  to  re-admit  him  to  the  same  train, 
from  which  his  expulsion  had  been  proper,  so  long  at  least  as  he 
persisted  in  his  violation  of  the  contract  he  had  originally  made. 

In  O'Brien  v.  Boston  &  Worcester  Railroad,  15  Gray,  20,  it  was 
held  that  a  person,  who  had  been  properly  ejected  for  non-payment 
of  fare  at  a  place  where  there  was  no  station,  could  not,  by  again 
entering  the  cars  and  tendering  the  fare,  obtain  the  right  to  be  car- 
ried by  them. 

If  this  case  is  distinguishable,  as  the  plaintiff  suggests,  by  the 
fact  that  the  expulsion  there  was  not  at  a  station,  and  the  re-entry 
into  the  cars  was  at  a  place  where  the  company  was  not  bound  to 
receive  passengers,  it  is  also  distinguishable,  and  in  this  matter  not 
in  favor  of  the  plaintiff,  by  the  fact  that  the  person  there  expelled 
offered  to  pay  the  entire  fare  for  the  journey  which  he  had  begun. 

If  the  rightful  expulsion  takes  place  at  a  station,  it  is  not  an 
unreasonable  rule  that  the  person  expelled  should  pay  the  fare  over 
the  distance  already  travelled  before  he  can  purchase  a  ticket  from 
such  station  for  the  remainder  of  the  journey  which  will  entitle  him 
to  be  carried  on  the  same  train.  This  point  was  directly  adjudged 
in  Stone  v.  Chicago  &  Northwestern  Railroad,  47  Iowa,  82,  and 
in  O'Brien  v.  New  York  Central  &  Hudson  River  Railroad,  80 
N.  Y.  236. 

The  case  of  State  v.  Campbell,  3  Vroom,  309,  goes  further  than 
we  are  required  to  do  in  the  present  inquiry.  The  traveller  there 
had  an  excursion  ticket  from  New  Brunswick  to  New  York,  good 
for  a  single  day,  which  had  passed,  and  the  ticket  was  thus  ex- 
hausted. He  had  also  a  regular  ticket,  which  then  entitled  him  to 
a  passage  between  the  same  points.  The  latter  ticket  he  kept  in  his 
pocket,  refused  to  exhibit  any  other  than  the  exhausted  ticket,  and 
was  ejected  from  the  cars,  at  Newark,  a  station  on  the  road.  He 
then  exhibited  the  regular  ticket,  which  would  have  entitled  him  to 
the  passage  if  previously  shown,  and  claimed  to  re-enter  the  cars. 
His  previous  conduct  was  held  to  fully  justify  his  exclusion  from 
the  same  train. 

The  only  other  case  cited  by  the  plaintiff  which  requires  notice  is 
Nelson  v.  Long  Island  Railroad,  7  Hun,  140.  It  was  there  held 
that  a  passenger  put  off  the  car  for  refusing  to  pay  his  fare  cannot 
be  taken  back  upon  complying  with  the  rule  violated,  unless  he  be 
at  a  regular  station,  and  then  and  there  obtain  a  ticket,  or  tender 
his  fare.  An  examination  of  the  case  will  show  that  the  obtaining 
of  a  ticket,  or  tendering  the  fare  referred  to,  is  a  ticket  or  fare  for 
the  whole  distance  travelled  and  to  be  travelled,  and  not  for  the 
remainder  of  the  proposed  journey.  Judgment  affirmed. 


1080  CAKEIEKS   OF   PASSENGERS. 


ILLINOIS   CENTRAL   R.    CO.    v.    WHITTEMORE. 

43  111.  420.     1867. 

Lawrence,  J.  This  was  an  action  of  trespass  brought  by  Whit- 
tern  ore  against  the  Illinois  Central  Railroad  Company  and  N.  W. 
Cole,  a  conductor  in  the  service  of  the  company,  for  wrongfully 
expelling  the  plaintiff  from  a  train.  It  appears  the  plaintiff  had 
taken  passage  from  Decatur  to  El  Paso,  and  had  procured  the  neces- 
sary ticket.  After  the  train  passed  Kappa,  the  station  preceding 
El  Paso,  the  conductor  demanded  the  plaintiff's  ticket,  which  the 
latter  refused  to  surrender  without  a  check.  This  the  conductor 
refused  to  give;  and  after  some  controversy  with  the  plaintiff, 
stopped  the  train,  and  with  the  aid  of  a  brakeman  expelled  the 
plaintiff.  There  is  considerable  evidence  in  the  record  given  for 
the  purpose  of  showing  that,  even  admitting  the  right  of  the  defend- 
ants to  expel  the  plaintiff,  an  unnecessary  and  wanton  degree  of  vio- 
lence was  used  from  which  the  plaintiff  received  a  permanent  and 
severe  injury.  As,  however,  the  case  must  be  submitted  to  another 
jury,  we  forbear  from  any  comments  on  this  portion  of  it.  The  jury 
gave  the  plaintiff  a  verdict  for  $3,125,  for  which  the  court  rendered 
judgment,  and  the  defendants  appealed. 

In  sustaining  a  demurrer  to  the  fourth  plea,  and  in  giving  the 
instructions,  the  Circuit  Court  held  that,  although  the  rules  of  the 
road  required  the  conductor  to  take  up  the  plaintiff's  ticket,  and 
notwithstanding  he  may  have  refused  to  surrender  it  when  de- 
manded, the  defendants  had  no  right  to  expel  him  from  the  cars, 
except  at  a  regular  station.  In  support  of  this  position,  it  is  urged 
by  counsel  for  appellee  that  the  refusal  to  surrender  the  ticket  was 
merely  equivalent  to  a  refusal  to  pay  the  fare,  and  that  the  statu- 
tory prohibition  against  the  expulsion  of  passengers  for  this  cause, 
except  at  a  regular  station,  should  be  applied  to  cases  like  the  pres- 
ent. We  held,  in  the  case  of  Chicago  &  Atlantic  R.  R.  v.  Flagg, 
43  111.  3G4,  that  the  neglect  to  buy  a  ticket  before  entering  the 
train,  when  required  by  the  rules  of  the  road,  was  the  same  thing 
in  substance  as  the  refusal  to  pay  the  fare,  and  justified  an  expul- 
sion only  at  a  regular  station.  But  the  refusal  to  surreuder  a 
ticket  for  which  the  requisite  fare  has  already  been  paid  is  cer- 
tainly not  the  same  thing  as  refusal  to  pay  the  fare.  It  may  be  no 
worse  offence  against  the  rights  of  the  railroad  company  than  the 
refusal  to  pay  the  fare,  but  it  is  not  the  same  offence.  Perhaps 
there  was  no  good  reason  why  the  legislature  should  have  forbidden 
railways  to  expel  a  passenger  only  at  a  regular  station  for  the  non- 
payment of  fare,  and  have  left  them  at  liberty  to  expel  one  at  any 
other  point,  for  the  disregard  of  any  other  reasonable  rule.     But  it 


EEGULATIONS.  1081 

has  done  so,  and  it  is  our  duty  to  leave  the  law  as  the  legislature 
thought  proper  to  establish  it. 

What,  then,  is  the  right  of  a  railway  company  in  reference  to  its 
passengers  ?  Clearly,  to  require  of  them  the  observance  of  all  such 
reasonable  rules  as  tend  to  promote  the  comfort  and  convenience  of 
the  passengers,  to  preserve  good  order  and  propriety  of  behavior,  to 
secure  the  safety  of  the  train,  and  to  enable  the  company  to  conduct 
its  business  as  a  common  carrier  with  advantage  to  the  public  and 
to  itself.  So  long  as  such  reasonable  rules  are  observed  by  a  pas- 
senger, the  company  is  bound  to  carry  him;  but  if  they  are  wantonly 
disregarded,  that  obligation  ceases,  and  the  company  may  at  once 
expel  him  from  the  train,  using  no  moie  force  than  may  be  neces- 
sary for  that  purpose,  and  not  selecting  a  dangerous  or  inconvenient 
place.  This  is  a  common-law  right,  arising  from  the  nature  of  their 
contract  and  occupation  as  common  carriers,  and,  as  already  re- 
marked, it  has  been  restricted  by  the  legislature  only  in  cases  where 
the  offence  consists  in  non-payment  'of  fare.  Ch.,  B.  &  Q.  R.  R. 
Co.  v.  Parks,  18  111.  460;  Hilliard  v.  Gould,  34  N.  H.  230;  Cheney 
v.  Boston  &  Maine  R.  R.  Co.,  11  Mete.  121.  If,  then,  the  regula- 
tion requiring  passengers  to  surrender  their  tickets  was  a  reason- 
able one,  the  ruling  of  the  court  below  on  this  point  was  erroneous. 

That  the  rule  is  a  reasonable  one  really  admits  of  no  controversy. 
It  was  shown  by  witnesses  on  the  trial,  and  must  be  apparent  to  any 
one,  that  the  company  must  have  the  right  to  require  the  surrender 
of  tickets,  in  order  to  guard  itself  against  imposition  and  fraud,  and 
to  preserve  the  requisite  method  and  accuracy  in  the  management  of 
its  passenger  department. 

The  Circuit  Court  left  it  to  the  jury  to  say  whether  the  rule  was 
sonable.  This  was  error.  It  was  proper  to  admit  testimony,  as 
was  done,  but,  either  with  or  without  this  testimony,  it  was  for  the 
court  to  say  whether  the  regulation  was  reasonable,  and,  therefore, 
obligatory  upon  the  passengers.  The  necessity  of  holding  this  to  be 
a  question  of  law,  and,  therefore,  within  the  province  of  the  court 
to  settle,  is  apparent  from  the  consideration,  that  it  is  only  by  so 
holding,  that  fixed  and  permanent  regulations  can  be  established. 
If  this  question  is  to  be  left  to  juries,  one  rule,  would  be  applied  by 
them  to-day  and  another  to-morrow.  In  one  trial  a  railway  would 
be  held  liable,  and  in  another,  presenting  the  same  question,  not  lia- 
ble. Neither  the  companies  nor  passengers  would  know  their  rights 
or  their  obligations.  A  fixed  system  for  the  control  of  the  vast 
interests  connected  with  railways  would  be  impossible,  while  such 
a  system  is  essential  equally  to  the  roads  and  to  the  public.  A 
similar  view  has  recently  been  taken  of  this  question  in  the  case  of 
Vedder  w.  Fellows,  20  N.  Y.  126. 

The  judgment  must  be  reversed;  but  if  it  appears,  upon  another 
trial,  that  unnecessary  violence  was  used,  the  defendants  must  re- 
spond in  damages. 


1082  CARRIERS    OF   PASSENGERS. 


CHICAGO,  etc.    R.    CO.   v.   WILLIAMS. 
55  111.  185.     1870. 

Appeal  from  the  Circuit  Court  of  Winnebago.  County;  the  Hon. 
Benjamin  R.  Sheldon,  Judge,  presiding. 

This  was  an  action  on  the  case,  brought  in  the  court  below  by 
Anna  Williams,  a  colored  woman,  against  the  Chicago  &  North- 
western Railway  Company,  to  recover  damages  resulting  to  the 
plaintiff  by  reason  of  being  excluded  from  the  privileges  of  a  car 
upon  the  defendants'  road,  which  had  been  designated,  under  the 
rules  of  the  company,  for  the  exclusive  use  of  ladies,  and  gentle- 
men accompanied  by  ladies,  the  only  reason  for  such  exclusion  of 
the  plaintiff  being  on  account  of  her  color. 

Upon  the  trial,  the  plaintiff  recovered  a  judgment  for  $200,  from 
which  the  company  appealed. 

Mr.  Justice  Scott.  There  is  but  one  question  of  any  consider- 
able importance  presented  by  the  record  in  this  case. 

It  is  simply,  whether  a  railroad  company,  which,  by  our  statute, 
and  the  common  law,  is  a  common  carrier  of  passengers,  in  a  case 
where  the  company,  by  their  rules  and  regulations,  have  designated 
a  certain  car  in  their  passenger  train  for  the  exclusive  use  of  ladies, 
and  gentlemen  accompanied  by  ladies*  can  exclude  from  the  privi- 
leges of  such  car  a  colored  woman,  holding  a  first-class  ticket,  for 
no  other  reason  except  her  color. 

The  evidence  in  the  case  establishes  these  facts  —  that,  as  was  the 
custom  on  appellants'  road,  they  had  set  apart  in  their  passenger 
trains  a  car  for  the  exclusive  use  of  ladies,  and  gentlemen  accom- 
panied by  ladies,  and  that  such  a  car,  called  the  "ladies'  car,"  Was 
attached  to  the  train  in  question.  The  appellee  resided  at  Rock- 
ford,  and  being  desirous  of  going  from  that  station  to  Belvidere,  on 
the  road  of  appellants,  for  that  purpose  purchased  of  the  agent  of 
the  appellants  a  ticket,  which  entitled  the  holder  to  a  seat  in  a  first- 
class  car  on  their  road.  On  the  arrival  of  the  train  at  the  Rockford 
Station,  the  appellee  offered  and  endeavored  to  enter  the  ladies'  car, 
but  was  refused  permission  so  to  do,  and  was  directed  to  go  forward 
to  the  car  set  apart  for  and  occupied  mostly  by  men. 

On  the  appellee  persisting  on  entering  the  ladies'  car,  force 
enough  was  used  by  the  brakeman  to  prevent  her.  At  the  time  she 
attempted  to  obtain  a  seat  in  that  car,  on  appellants'  train,  there 
were  vacant  and  unocciipied  seats  in  it,  for  one  of  the  female  wit- 
nesses states  that  she,  with  two  other  ladies,  a  few  moments  after- 
wards, entered  the  same  car  at  that  station,  and  found  two  vacant 
seats,   and  occupied  the  same.      No  objection  whatever  was  made, 


EEGULATIONS.  1083 

nor  is  it  insisted  any  other  existed,  to  appellee  taking  a  seat  in  the 
ladies'  car,  except  her  color.  The  appellee  was  clad  in  plain  and 
decent  apparel,  and  it  is  not  suggested,  in  the  evidence  or  otherwise, 
that  she  was  not  a  woman  of  good  character  and  proper  behavior. 

It  does  not  appear  that  the  company  has  ever  set  apart  a  car  for 
the  exclusive  use,  or  provided  any  separate  seats  for  the  use,  of  col- 
ored persons  who  might  desire  to  pass  over  their  line  of  road.  The 
evidence  discloses  that  colored  women  sometimes  rode  in  the  ladies' 
car,  and  sometimes  in  the  other  car,  and  there  was,  in  fact,  no  rule 
or  regulation  of  the  company  in  regard  to  colored  passengers. 

The  case  turns  somewhat  on  what  are  reasonable  rules,  and  the 
power  of  railroad  companies  to  establish  and  enforce  them. 

It  is  the  undoubted  right  of  railroad  companies  to  make  all  rea- 
sonable rules  and  regulations  for  the  safety  and  comfort  of  passen- 
gers travelling  on  their  lines  of  road.  It  is  not  only  their  right,  but 
it  is  their  duty  to  make  such  rules  and  regulations.  It  is  alike  the 
interest  of  the  companies  and  the  public  that  such  rules  should  be 
established  and  enforced,  and  ample  authority  is  conferred  by  law 
on  the  agents  and  servants  of  the  companies  to  enforce  all  reason- 
able regulations  made  for  the  safety  and  convenience  of  passengers. 
It  was  held  in  the  case  of  111.  Cent.  R.  K.  Co.  v.  Whittemore,  43 
111.  423,  that,  for  a  non-compliance  with  a  reasonable  rule  of  the 
company,  a  party  might  be  expelled  from  a  train  at  a  point  other 
than  a  regular  station. 

If  a  person  on  a  train  becomes  disorderly,  profane,  or  dangerous 
and  offensive  in  his  conduct,  it  is  the  duty  of  the  conductor  to  expel 
such  guilty  party,  or  at  least  to  assign  him  to  a  car  where  he  will 
not  endanger  or  annoy  the  other  passengers.  Whatever  rules  tend 
to  the  comfort,  order,  and  safety  of  the  passengers,  the  company  are 
fully  authorized  to  make,  and  are  amply  empowered  to  enforce  com- 
pliance therewith. 

But  such  rules  and  regulations  must  always  be  reasonable,  and 
uniform  in  respect  to  persons. 

A  railroad  company  cannot  capriciously  discriminate  between  pas- 
sengers on  account  of  their  nativity,  color,  race,  social  position,  or 
their  political  or  religious  beliefs.  Whatever  discriminations  are 
made,  must  be  on  some  principle,  or  for  some  reason,  that  the  law 
recognizes  as  just  and  equitable,  and  founded  in  good  public  policy. 
What  are  reasonable  rules  is  a  question  of  law,  and  is  for  the  court 
to  determine,  under  all  the  circumstances  in  each  particular  case. 

In  the  present  instance,  the  rule  that  set  apart  a  car  for  the  exclu- 
sive use  of  ladies,  and  gentlemen  accompanied  by  ladies,  is  a  rea- 
sonable one,  and  the  power  of  the  company  to  establish  it  has  never 
been  doubted. 

If  the  appellee  is  to  be  denied  the  privilege  of  the  "ladies'  car," 
for  which  she  was  willing  to  pay,  and  had  paid,  full  compensation 
to  the  company,  a  privilege  which  is  accorded  alike  to  all  women, 


1084  .  CARRIERS    OF   PASSENGERS. 

whether  they  are  rich  or  poor,  it  must  be  on  some  principle  or  under 
some  rule  of  the  company  that  the  law  would  recognize  as  reasonable 
and  just.  If  she  was  denied  that  privilege  by  the  mere  caprice  of 
the  brakeman  and  conductor,  and  under  no  reasonable  rule  of  the 
company,  or,  what  is  still  worse,  as  the  evidence  would  indicate, 
through  mere  wantonness  on  the  part  of  the  brakeman,  then  it  was 
unreasonable,  and  therefore  unlawful.  It  is  not  pretended  that 
there  was  any  rule  that  excluded  her,  or  that  the  managing  officers 
of  the  company  had  ever  given  any  direction  to  exclude  colored  per- 
sons from  that  car.  If,  however,  there  was  such  a  rule,  it  could  not 
be  justified  on  the  ground  of  mere  prejudice.  Such  a  rule  must  have 
for  its  foundation  a  better  and  a  sounder  reason,  and  one  more  in 
consonance  with  the  enlightened  judgment  of  reasonable  men.  An 
unreasonable  rule,  that  affects  the  convenience  and  comfort  of  pas- 
sengers, is  unlawful,  simply  because  it  is  unreasonable.  The  State 
v.  Overton,  4  Zab.  435. 

In  the  case  of  the  West  Chester  &  Philadelphia  R.  R.  Co.  v. 
Miles,  55  Penn.  209,  it  was  admitted,  that  no  one  could  be  excluded 
from  a  carriage  by  a  public  carrier  on  account  of  color,  religious 
belief,  political  relations  or  prejudice,  but  it  was  held,  not  to  be  an 
unreasonable  regulation  to  seat  passengers  so  as  to  preserve  order 
and  decorum,  and  prevent  contacts  and  collisions  arising  from  well- 
known  repugnances,  and  therefore  a  rule  that  required  a  colored 
woman  to  occupy  a  separate  seat  in  a  car  furnished  by  the  company, 
equally  as  comfortable  and  safe  as  that  furnished  for  other  pas- 
sengers, was  not  an  unreasonable  rule. 

Under  some  circumstances,  this  might  not  be  an  unreasonable 
rule. 

At  all  events,  public  carriers,  until  they  do  furnish  separate  seats 
equal  in  comfort  and  safety  to  those  furnished  for  other  travellers, 
must  be  held  to  have  no  right  to  discriminate  between  passengers  on 
account  of  color,  race,  or  nativity,  alone. 

We  do  not  understand  that  the  appellee  was  bound  to  go  forward 
to  the  car  set  apart  for  and  occupied  mostly  by  men,  when  she  was 
directed  by  the  brakeman.  It  is  a  sufficient  answer  to  say,  that 
that  car  was  not  provided  by  any  rule  of  the  company  for  the  use  of 
women,  and  that  another  one  was.  This  fact  was  known  to  the  ap- 
pellee at  the  time.  She  may  have  undertaken  the  journey  alone,  in 
view  of  that  very  fact,  as  women  often  do. 

The  above  views  dispose  of  all  the  objections  taken  to  the  instruc- 
tions given  by  the  court  on  behalf  of  the  appellee,  and  the  refusal  of 
the  court  to  give  those  asked  on  the  part  of  the  appellants,  except 
the  one  which  tells  the  jury  that  they  may  give  damages  above  the 
actual  damages  sustained,  for  the  delay,  vexation,  and  indignity  to 
which  the  appellee  was  exposed,  if  she  was  wrongfulry  excluded 
from  the  car.  If  the  party  in  such  case  is  confined  to  the  actual 
pecuniary  damages  sustained,  it  would,  most  often,  be  no  compensa- 


REGULATIONS.  1085 

tion  at  all,  above  nominal  damages,  and  no  salutary  effect  would  be 
produced  on  the  wrong-doer  by  such  a  verdict.  But  we  apprehend, 
that  if  the  act  is  wrongfully  and  wantonly  committed,  the  party 
may  recover,  in  addition  to  the  actual  damages,  something  for  the 
indignity,  vexation,  and  disgrace  to  which  the  party  has  been 
subjected. 

It  is  insisted  that  the  damages  are  excessive,  in  view  of  the  slight 
injury  sustained. 

There  is  evidence  from  which  the  jury  could  find  that  the  brake- 
man  treated  the  appellee  very  rudely,  and  placed  his  hand  on  her 
and  pushed  her  away  from  the  car.  The  act  was  committed  in  a 
public  place,  and  whatever  disgrace  was  inflicted  on  her  was  in  the 
presence  of  strangers  and  friends.  The  act  was,  in  itself,  wrongful, 
and  without  the  shadow  of  a  reasonable  excuse,  and  the  damages  are 
not  too  high.  The  jury  saw  the  witnesses,  and  heard  their  testi- 
mony, and  with  their  finding  we  are  fully  satisfied. 

Perceiving  no  error  in  the  record,  the  judgment  is  affirmed. 

Judgment  affirmed. 

Mr.  Justice  Sheldon,  having  heard  this  cause  in  the  court  below, 
took  no  part  in  this  decision. 

Breese,  J.  I  am  not  prepared  to  assent  to  all  the  reasoning  and 
conclusions  of  the  above  opinion,  and  I  am  further  of  opinion  the 
damages  are  excessive. 


APPENDIX. 


IMPORTANT   FEDERAL    STATUTES    RELATING    TO 

CARRIERS. 


LIMITATION  OF  LIABILITY. 

Revised  Statutes  of  the  United  States. 

Section  4281.  If  any  shipper  of  platina,  gold,  gold  dust,  silver,  bullion, 
or  other  precious  metals,  coins,  jewelry,  bills  of  any  bank  or  public  body,  dia- 
monds, or  other  precious  stones,  or  any  gold  or  silver  in  a  manufactured  or 
unmanufactured  state,  watches,  clocks,  or  time-pieces  of  any  description, 
trinkets,  orders,  notes,  or  securities  for  payment  of  money,  stamps,  maps, 
writings,  title-deeds,  printings,  engravings,  pictures,  gold  or  silver  plate  or 
plated  articles,  glass,  china,  silks  in  a  manufactured  or  unmanufactured  state, 
and  whether  wrought  up  or  not  wrought  up  with  any  other  material,  furs,  or 
lace,  or  any  of  them,  contained  in  any  parcel,  or  package,  or  trunk,  shall  lade 
the  same  as  freight  or  baggage,  on  any  vessel,  without  at  the  time  of  such 
lading  giving  to  the  master,  clerk,  agent,  or  owner  of  such  vessel  receiving  the 
same  a  written  notice  of  the  true  character  and  value  thereof,  and  having  the 
same  entered  on  the  bill  of  lading  therefor,  the  master  and  owner  of  such  vessel 
shall  not  be  liable  as  carriers  thereof  in  any  form  or  manner;  nor  shall  any 
such  master  or  owner  be  liable  for  any  such  goods  beyond  the  value  and  ac- 
cording to  the  character  thereof  so  notified  and  entered.  [28  Feb.  1871,  c.  100, 
§69.] 

Sec.  4282.  No  owner  of  any  vessel  shall  be  liable  to  answer  for  or  make 
good  to  any  person  any  loss  or  damage  which  may  happen  to  any  merchandise 
whatsoever,  which  shall  be  shipped,  taken  in,  or  put  on  board  any  such  vessel, 
by  reason  or  by  means  of  any  fire  happening  to  or  on  board  the  vessel,  unless 
such  fire  is  caused  by  the  design  or  neglect  of  such  owner.  [3  Mar.  1851, 
c.  43,  §  1.] 

Sec.  4283.  The  liability  of  the  owner  of  any  vessel,  for  any  embezzlement, 
loss,  or  destruction,  by  any  person,  of  any  property,  goods,  or  merchandise, 
shipped  or  put  on  board  of  such  vessel,  or  for  any  loss,  damage,  or  injury  by 
collision,  or  for  any  act,  matter,  or  thing,  loss,  damage,  or  forfeiture,  done, 
occasioned,  or  incurred,  without  the  privity,  or  knowledge  of  such  owner  or 
owners,  shall  in  no  case  exceed  the  amount  or  value  of  the  interest  of  such 
owner  in  such  vessel,  and  her  freight  then  pending.     [Ibid.  §  3.] 

Sec.  4284.  Whenever  any  such  embezzlement,  loss,  or  destruction  is  suf- 
fered by  several  freighters  or  owners  of  goods,  wares,  merchandise,  or  any 
property  whatever,  on  the  same  voyage,  and  the  whole  value  of  the  vessel,  and 

1087 


1088  APPENDIX. 

her  freight  for  the  voyage,  is  not  sufficient  to  make  compensation  to  each  of 
them,  they  shall  receive  compensation  from  the  owner  of  the  vessel  in  propor- 
tion to  their  respective  losses ;  and  for  that  purpose  the  freighters  and  owners 
of  the  property,  and  the  owner  of  the  vessel,  or  any  of  them,  may  take  the 
appropriate  proceedings  in  any  court,  for  the  purpose  of  apportioning  the  sum 
for  which  the  owner  of  the  vessel  may  be  liable  among  the  parties  entitled 
thereto.     [Ibid.  §  4;  27  Feb.  1877,  c.  69.] 

Sec.  4285.  It  shall  be  deemed  a  sufficient  compliance  on  the  part  of  such 
owner  with  the  requirements  of  this  Title  relating  to  his  liability  for  any  em- 
bezzlement, loss,  or  destruction  of  any  property,  goods,  or  merchandise,  if  he 
shall  transfer  his  interest  in  such  vessel  and  freight,  for  the  benefit  of  such 
claimants,  to  a  trustee,  to  be  appointed  by  any  court  of  competent  jurisdiction, 
to  act  as  such  trustee  for  the  person  who  may  prove  to  be  legally  entitled  there- 
to ;  from  and  after  which  transfer  all  claims  and  proceedings  against  the  owner 
shall  cease.     [3  Mar.  1851,  c.  43,  §  4.] 

Sec.  4286.  The  charterer  of  any  vessel,  in  case  he  shall  man,  victual,  and 
navigate  such  vessel  at  his  own  expense,  or  by  his  own  procurement,  shall  be 
deemed  the  owner  of  such  vessel  within  the  meaning  of  the  provisions  of  this 
Title  relating  to  the  limitation  of  the  liability  of  the  owners  of  vessels;  and 
such  vessel,  when  so  chartered,  shall  be  liable  in  the  same  manner  as  if  navi- 
gated by  the  owner  thereof.     [Ibid.  §  5.] 

Sec.  4287.  Nothing  in  the  five  preceding  sections  shall  be  construed  to 
take  away  or  affect  the  remedy  to  which  any  party  may  be  entitled,  against 
the  master,  officers,  or  seamen,  for  or  on  account  of  any  embezzlement,  injury, 
loss,  or  destruction  of  merchandise,  or  property,  put  on  board  any  vessel,  or  on 
account  of  any  negligence,  fraud,  or  other  malversation  of  such  master,  officers, 
or  seamen,  respectively,  nor  to  lessen  or  take  away  any  responsibility  to  which 
any  master  or  seaman  of  any  vessel  may  by  law  be  liable,  notwithstanding 
such  master  or  seaman  may  be  an  owner  or  part  owner  of  the  vessel.  [Ibid. 
§6.] 

Sec.  4288.  Any  person  shipping  oil  of  vitriol,  unslaked  lime,  inflammable 
matches,  or  gunpowder,  in  a  vessel  taking  cargo  for  divers  persons  on  freight, 
without  delivering,  at  the  time  of  shipment,  a  note  in  writing,  expressing  the 
nature  and  character  of  such  merchandise,  to  the  master,  mate,  officer,  or 
person  in  charge  of  the  lading  of  the  vessel,  shall  be  liable  to  the  United  States 
in  a  penalty  of  one  thousand  dollars.  But  this  section  shall  not  apply  to  any 
vessel  of  any  description  whatsoever  used  in  rivers  or  inland  navigation.  [Ibid. 
§7.] 

,  Sec.  4289.  The  provisions  of  the  seven  preceding  sections,  and  of  section 
eighteen  of  an  act  entitled  "An  act  to  remove  certain  burdens  on  the  American 
merchant  marine  and  encourage  the  American  foreign  carrying-trade,  and  for 
other  purposes,"  approved  June  twenty-sixth,  eighteen  hundred  and  eighty- 
four,  relating  to  the  limitations  of  the  liability  of  the  owners  of  vessels,  shall 
apply  to  all  sea-going  vessels,  and  also  to  all  vessels  used  on  lakes  or  rivers  or 
in  inland  navigation,  including  canal-boats,  barges,  and  lighters.  [Ibid. ;  18 
Feb.  1875,  c.  80 ;  as  amended  by  Act  of  19  June,  1886,  c.  421,  §  4.] 

Act  of  June  26,  1884,  c.  121.     (23  Stat,  at  L.  57.) 

Sec.  18.  That  the  individual  liability  of  a  ship-owner  shall  be  limited  to 
the  proportion  of  any  or  all  debts  and  liabilities  that  his  individual  share  of 


APPENDIX.  1089 

the  vessel  bears  to  the  whole ;  and  the  aggregate  liabilities  of  all  the  owners  of 
a  vessel  on  account  of  the  same  shall  not  exceed  the  value  of  such  vessels  and 
freight  pending :  Provided,  That  this  provision  shall  not  affect  the  liability  of 
any  owner  incurred  previous  to  the  passage  of  this  act,  nor  prevent  any  claim- 
ant from  joining  all  the  owners  in  one  action ;  nor  shall  the  same  apply  to  wages 
due  to  persons  employed  by  said  ship-owners. 


BILLS  OF  LADING 

Act  of  Feb.  13,  1893,  c.  105.     (27  Stat,  at  L.  445.) 

Be  it  enacted,  etc.  That  it  shall  not  be  lawful  for  the  manager,  agent,  mas- 
ter, or  owner  of  any  vessel  transporting  merchandise  or  property  from  or  be- 
tween ports  of  the  United  States  and  foreign  ports  to  insert  in  any  bill  of  lading 
or  shipping  document  any  clause,  covenant,  or  agreement  whereby  it,  he,  or 
they  shall  be  relieved  from  liability  for  loss  or  damage  arising  from  negligence, 
fault,  or  failure  in  proper  loading,  stowage,  custody,  care,  or  proper  delivery 
of  any  and  all  lawful  merchandise  or  property  committed  to  its  or  their  charge. 
Any  and  all  words  or  clauses  of  such  import  inserted  in  bills  of  lading  or  ship- 
ping receipts  shall  be  null  and  void  and  of  no  effect. 

Sec.  2.  That  it  shall  not  be  lawful  for  any  vessel  transporting  merchandise 
or  property  from  or  between  ports  of  the  United  States  of  America  and  foreign 
ports,  her  owner,  master,  agent,  or  manager,  to  insert  in  any  bill  of  lading  or 
shipping  document  any  covenant  or  agreement  whereby  the  obligations  of  the 
owner  or  owners  of  said  vessel  to  exercise  due  diligence  properly  equip,  man, 
provision,  and  outfit  said  vessel,  and  to  make  said  vessel  seaworthy  and  capable 
of  performing  her  intended  voyage,  or  whereby  the  obligations  of  the  master, 
officers,  agents,  or  servants  to  carefully  handle  and  stow  her  cargo  and  to  care 
for  and  properly  deliver  same,  shall  in  anywise  be  lessened,  weakened,  or  avoided. 

Sec.  3.  That  if  the  owner  of  any  vessel  transporting  merchandise  or  prop- 
erty to  or  from  any  port  in  the  United  States  of  America  shall  exercise  due 
diligence  to  make  the  said  vessel  in  all  respects  seaworthy  and  properly  manned, 
equipped,  and  supplied,  neither  the  vessel,  her  owner  or  owners,  agent,  or 
charterers  shall  become  or  be  held  responsible  for  damage  or  loss  resulting 
from  faults  or  errors  in  navigation  or  in  the  management  of  said  vessel  nor 
shall  the  vessel,  her  owner  or  owners,  charterers,  agent,  or  master  be  held 
liable  for  losses  arising  from  dangers  of  the  sea  or  other  navigable  waters,  acts 
of  God,  or  public  enemies,  or  the  inherent  defect,  quality,  or  vice  of  the  thing 
carried,  or  from  insufficiency  of  package,  or  seizure  under  legal  process,  or  for 
loss  resulting  from  any  act  or  omission  of  the  shipper  or  owner  of  the  goods, 
his  agent  or  representative,  or  from  saving  or  attempting  to  save  life  or  prop- 
erty at  sea,  or  from  any  deviation  in  rendering  such  service. 

Sec.  4.  That  it  shall  be  the  duty  of  the  owner  or  owners,  masters,  or  agent 
of  anv  vessel  transporting  merchandise  or  property  from  or  between  ports  of 
the  United  States  and  foreign  ports  to  issue  to  shippers  of  any  lawful  mer- 
chandise a  bill  of  lading,  or  shipping  document,  stating,  among  other  things, 
the  marks  necessary  for  identification,  number  of  packages,  or  quantity,  stating 
whether  it  be  carrier's  or  shipper's  weight,  and  apparent  order  or  condition  of 
such  merchandise  or  property  delivered  to  and  received  by  the  owner,  master, 


1090  APPENDIX. 

or  agent  of  the  vessel  for  transportation,  and  such  document  shall  be  prima 
facie  evidence  of  the  receipt  of  the  merchandise  therein  described. 

Sec.  5.  That  for  a  violation  of  any  of  the  provisions  of  this  act  the  agent, 
owner,  or  master  of  the  vessel  guilty  of  such  violation,  and  who  refuses  to  issue 
on  demand  the  bill  of  lading  herein  provided  for,  shall  be  liable  to  a  fine  not 
exceeding  two  thousand  dollars.  The  amount  of  the  fine  and  costs  for  such 
violation  shall  be  a  lien  upon  the  vessel,  whose  agent,  owner,  or  master  is  guilty 
of  such  violation,  and  such  vessel  may  be  libelled  therefor  in  any  district  court 
of  the  United  States,  within  whose  jurisdiction  the  vessel  may  be  found.  One- 
half  of  such  penalty  shall  go  to  the  party  injured  by  such  violation  and  the 
remainder  to  the  Government  of  the  United  States. 

Sec.  6.  That  this  act  shall  not  be  held  to  modify  or  repeal  sections  forty- 
two  hundred  and  eighty-one,  forty-two  hundred  and  eighty-two,  and  forty-two 
hundred  and  eighty-three  of  the  Revised  Statutes  of  the  United  States,  or  any 
other  statute  defining  the  liability  of  vessels,  their  owners,  or  representatives. 

Sec.  7.  Sections  one  and  four  of  this  act  shall  not  apply  to  the  transporta- 
tion of  live  animals. 

Sec.  8.  This  act  shall  take  effect  from  and  after  the  first  day  of  July,  eigh- 
teen hundred  and  ninety-three. 

Approved,  February  13,  1893. 


THE  ACT  TO  REGULATE  COMMERCE  AS  AMENDED. 

[As  published  by  the  Interstate  Commerce  Commission.  Revised  to  Jan.  1, 
1914.] 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled, 

Sec.  1.  (As  amended  June  29,  1906,  April  13,  1908,  and  June  18,  1910.) 
That  the  provisions  of  this  Act  shall  apply  to  any  corporation  or  any  person  or 
persons  engaged  in  the  transportation  of  oil  or  other  commodity,  except  water 
and  except  natural  or  artificial  gas,  by  means  of  pipe  lines,  or  partly  by  pipe 
lines  and  partly  by  railroad,  or  partly  by  pipe  lines  and  partly  by  water,  and 
to  telegraph,  telephone,  and  cable  companies  (whether  wire  or  wireless)  engaged 
in  sending  messages  from  one  State,  Territory,  or  District  of  the  United  States, 
to  any  other  State,  Territory,  or  District  of  the  United  States,  or  to  any  for- 
eign country,  who  shall  be  considered  and  held  to  be  common  carriers  within 
the  meaning  and  purpose  of  this  Act,  and  to  any  common  carrier  or  carriers 
engaged  in  the  transportation  of  passengers  or  property  wholly  by  railroad 
(or  partly  by  railroad  and  partly  by  water  when  both  are  used  under  a  common 
control,  management,  or  arrangement  for  a  continuous  carriage  or  shipment), 
from  one  State  or  Territory  of  the  United  States  or  the  District  of  Columbia, 
to  any  other  State  or  Territory  of  the  United  States  or  the  District  of  Columbia, 
or  from  one  place  in  a  Territory  to  another  place  in  the  same  Territory,  or  from 
any  place  in  the  United  States  to  an  adjacent  foreign  country,  or  from  any 
place  in  the  United  States  through  a  foreign  country  to  any  other  place  in  the 
United  States,  and  also  to  the  transportation  in  like  manner  of  property  shipped 
from  any  place  in  the  United  States  to  a  foreign  country  and  carried  from  such 
place  to  a  port  of  transshipment,  or  shipped  from  a  foreign  country  to  any 
place  in  the  United  States  and  carried  to  such  place  from  a  port  of  entry  either 
in  the  United  States  or  an  adjacent  foreign  country:   Provided,  however,  That 


APPENDIX.  1091 

the  provisions  of  this  Act  shall  not  apply  to  the  transportation  of  passengers 
or  property,  or  to  the  receiving,  delivering,  storage,  or  handling  of  property 
wholly  within  one  State  and  not  shipped  to  or  from  a  foreign  country  from  or 
to  any  State  or  Territory  as  aforesaid,  nor  shall  they  apply  to  the  transmission 
of  messages  by  telephone,  telegraph,  or  cable  wholly  within  one  State  and 
not  transmitted  to  or  from  a  foreign  country  from  or  to  any  State  or  Territory 
as  aforesaid. 

The  term  "common  carrier"  as  used  in  this  Act  shall  include  express  com- 
panies and  sleeping  car  companies.  The  term  "railroad"  as  used  in  this  Act 
shall  include  all  bridges  and  ferries  used  or  operated  in  connection  with  any 
railroad,  and  also  all  the  road  in  use  by  any  corporation  operating  a  railroad, 
whether  owned  or  operated  under  a  contract,  agreement,  or  lease,  and  shall 
also  include  all  switches,  spurs,  tracks,  and  terminal  facilities  of  every  kind  used 
or  necessary  in  the  transportation  of  the  persons  or  property  designated  herein, 
and  also  all  freight  depots,  yards,  and  grounds  used  or  necessary  in  the  transpor- 
tation or  delivery  of  any  of  said  property ;  and  the  term  "transportation"  shall 
include  cars  and  other  vehicles  and  all  instrumentalities  and  facilities  of  ship- 
ment or  carriage,  irrespective  of  ownership  or  of  any  contract,  express  or  implied, 
for  the  use  thereof  and  all  services  in  connection  with  the  receipt,  delivery,  ele- 
vation, and  transfer  in  transit,  ventilation,  refrigeration  or  icing,  storage,  and 
hand'ing  of  property  transported ;  and  it  shall  be  the  duty  of  every  carrier  sub- 
ject to  the  provisions  of  this  Act  to  provide  and  furnish  such  transportation 
upon  reasonable  request  therefor,  and  to  establish  through  routes  and  just  and 
reasonable  rates  applicable  thereto;  and  to  provide  reasonable  facilities  for 
operating  such  through  routes  and  to  make  reasonable  rules  and  regulations 
with  respect  to  the  exchange,  interchange,  and  return  of  cars  used  therein,  and 
for  the  operation  of  such  through  routes,  and  providing  for  reasonable  compen- 
sation to  those  entitled  thereto. 

All  charges  made  for  any  service  rendered  or  to  be  rendered  in  the  transpor- 
tation of  passengers  or  property  and  for  the  transmission  of  messages  by  tele- 
graph, telephone,  or  cable,  as  aforesaid,  or  in  connection  therewith,  shall  be  just 
and  reasonable ;  and  every  unjust  and  unreasonable  charge  for  such  service  or 
any  part  thereof  is  prohibited  and  declared  to  be  unlawful :  Provided,  That 
messages  by  telegraph,  telephone,  or  cable,  subject  to  the  provisions  of  this 
Act,  may  be  classified  into  day,  night,  repeated,  unrepeated,  letter,  commercial, 
press,  Government,  and  such  other  classes  as  are  just  and  reasonable,  and 
different  rates  may  be  charged  for  the  different  classes  of  messages :  And  pro- 
vided further,  That  nothing  in  this  Act  shall  be  construed  to  prevent  telephone, 
telegraph,  and  cable  companies  from  entering  into  contracts  with  common 
carriers,  for  the  exchange  of  services. 

And  it  is  hereby  made  the  duty  of  all  common  carriers  subject  to  the  provi- 
sions of  this  Act  to  establish,  observe,  and  enforce  just  and  reasonable  classi- 
fications of  property  for  transportation,  with  reference  to  which  rates,  tariffs, 
regulations,  or  practices  are  or  may  be  made  or  prescribed,  and  just  and  reason- 
able regulations  and  practices  affecting  classifications,  rates,  or  tariffs,  the 
issuance,  form,  and  substance  of  tickets,  receipts,  and  bills  of  lading,  the  manner 
and  method  of  presenting,  marking,  packing,  and  delivering  property  for  trans- 
portation, the  facilities  for  transportation,  the  carrying  of  personal,  sample, 
and  excess  baggage,  and  all  other  matters  relating  to  or  connected  with  the 
receiving,  handling,  transporting,  storing,  and  delivery  of  property  subject  to 
the  provisions  of  this  Act  which  may  be  necessary  or  proper  to  secure  the  safe 


1092  APPENDIX. 

and  prompt  receipt,  handling,  transportation,  and  delivery  of  property  subject 
to  the  provisions  of  this  Act  upon  just  and  reasonable  terms,  and  every  such 
unjust  and  unreasonable  classification,  regulation,  and  practice  with  reference 
to  commerce  between  the  States  and  with  foreign  countries  is  prohibited  and 
declared  to  be  unlawful. 

No  common  carrier  subject  to  the  provisions  of  this  Act  shall,  after  January 
first,  nineteen  hundred  and  seven,  directly  or  indirectly,  issue  or  give  any  inter- 
state free  ticket,  free  pass,  or  free  transportation  for  passengers,  except  to  its 
employees  and  their  families,  its  officers,  agents,  surgeons,  physicians,  and 
attorneys  at  law;  to  ministers  of  religion,  traveling  secretaries  of  railroad 
Young  Men's  Christian  Associations,  inmates  of  hospitals  and  charitable  and 
eleemosynary  institutions,  and  persons  exclusively  engaged  in  charitable  and 
eleemosynary  work ;  to  indigent,  destitute,  and  homeless  persons,  and  to  such 
persons  when  transported  by  charitable  societies  or  hospitals  and  the  necessary 
agents  employed  in  such  transportation ;  to  inmates  of  the  National  Homes  or 
State  Homes  for  Disabled  Volunteer  Soldiers,  and  of  Soldiers'  and  Sailors' 
Homes,  including  those  about  to  enter  and  those  returning  home  after  discharge ; 
to  necessary  care  takers  of  live  stock,  poultry,  milk,  and  fruit;  to  employees 
on  sleeping  cars,  express  cars,  and  to  linemen  of  telegraph  and  telephone  com- 
panies; to  Railway  Mail  Service  employees,  post-office  inspectors,  customs 
inspectors,  and  immigration  inspectors ;  to  newsboys  on  trains,  baggage  agents, 
witnesses  attending  any  legal  investigation  in  which  the  common  carrier  is 
interested,  persons  injured  in  wrecks  and  physicians  and  nurses  attending  such 
persons :  Provided,  That  this  provision  shall  not  be  construed  to  prohibit  the 
interchange  of  passes  for  the  officers,  agents,  and  employees  of  common  carriers, 
and  their  families;  nor  to  prohibit  any  common  carrier  from  carrying  pas- 
sengers free  with  the  object  of  providing  relief  in  cases  of  general  epidemic,  pes- 
tilence, or  other  calamitous  visitation  :  And  provided  further,  That  this  provi- 
sion shall  not  be  construed  to  prohibit  the  privilege  of  passes  or  franks,  or  the 
exchange  thereof  with  each  other,  for  the  officers,  agents,  employees,  and  their 
families  of  such  telegraph,  telephone,  and  cable  lines,  and  the  officers,  agents, 
employees  and  their  families  of  other  common  carriers  subject  to  the  provisions 
of  this  Act :  Provided  further,  That  the  term  "employees"  as  used  in  this  para- 
graph shall  include  furloughed,  pensioned,  and  superannuated  employees, 
persons  who  have  become  disabled  or  infirm  in  the  service  of  any  such  common 
carrier,  and  the  remains  of  a  person  killed  in  the  employment  of  a  carrier  and 
ex-employees  traveling  for  the  purpose  of  entering  the  service  of  any  such  com- 
mon carrier;  and  the  term  "families"  as  used  in  this  paragraph  shall  include 
the  families  of  those  persons  named  in  this  proviso,  also  the  families  of  persons 
killed,  and  the  widows  during  widowhood  and  minor  children  during  minority 
of  persons  who  died,  while  in  the  service  of  any  such  common  carrier.  Any 
common  carrier  violating  this  provision  shall  be  deemed  guilty  of  a  misdemeanor, 
and  for  each  offense,  on  conviction,  shall  pay  to  the  United  States  a  penalty  of 
not  less  than  one  hundred  dollars  nor  more  than  two  thousand  dollars,  and 
any  person,  other  than  the  persons  excepted  in  this  provision,  who  uses  any 
such  interstate  free  ticket,  free  pass,  or  free  transportation  shall  be  subject 
to  a  like  penalty.  Jurisdiction  of  offenses  under  this  provision  shall  be  the 
same  as  that  provided  for  offenses  in  an  Act  entitled  "An  Act  to  further  regu- 
late commerce  with  foreign  nations  and  among  the  States,"  approved  February 
nineteenth,  nineteen  hundred  and  three,  and  any  amendment  thereof.  (See 
section  22.) 


APPENDIX.  1093 

From  and  after  May  first,  nineteen  hundred  and  eight,  it  shall  be  unlawful 
for  any  railroad  company  to  transport  from  any  State,  Territory,  or  the  District 
of  Columbia,  to  any  other  State,  Territory,  or  the  District  of  Columbia,  or  to 
any  foreign  country,  any  article  or  commodity,  other  than  timber  and  the 
manufactured  products  thereof,  manufactured,  mined,  or  produced  by  it,  or 
under  its  authority,  or  which  it  may  own  in  whole  or  in  part,  or  in  which  it  may 
have  any  interest,  direct  or  indirect,  except  such  articles  or  commodities  as 
may  be  necessary  and  intended  for  its  use  in  the  conduct  of  its  business  as  a 
common  carrier. 

Any  common  carrier  subject  to  the  provisions  of  this  Act,  upon  application 
of  any  lateral,  branch  line  of  railroad,  or  of  any  shipper  tendering  interstate 
traffic  for  transportation,  shall  construct,  maintain,  and  operate  upon  reason- 
able terms  a  switch  connection  with  any  such  lateral,  branch  line  of  railroad, 
or  private  side  track  which  may  be  constructed  to  connect  with  its  railroad, 
where  such  connection  is  reasonably  practicable  and  can  be  put  in  with  safety 
and  will  furnish  sufficient  business  to  justify  the  construction  and  maintenance 
of  the  same ;  and  shall  furnish  cars  for  the  movement  of  such  traffic  to  the  best 
of  its  ability  without  discrimination  in  favor  of  or  against  any  such  shipper. 
If  any  common  carrier  shall  fail  to  install  and  operate  any  such  switch  or  con- 
nection as  aforesaid,  on  application  therefor  in  writing  by  any  shipper  or  owner 
of  such  lateral,  branch  line  of  railroad,  such  shipper  or  owner  of  such  lateral, 
branch  line  of  railroad  may  make  complaint  to  the  Commission,  as  provided  in 
section  thirteen  of  this  Act,  and  the  Commission  shall  hear  and  investigate  the 
same  and  shall  determine  as  to  the  safety  and  practicability  thereof  and  justifi- 
cation and  reasonable  compensation  therefor,  and  the  Commission  may  make 
an  order,  as  provided  in  section  fifteen  of  this  Act,  directing  the  common  carrier 
to  comply  with  the  provisions  of  this  section  in  accordance  with  such  order,  and 
such  order  shall  be  enforced  as  hereinafter  provided  for  the  enforcement  of  all 
other  orders  by  the  Commission,  other  than  orders  for  the  payment  of  money. 

Sec.  2.  That  if  any  common  carrier  subject  to  the  provisions  of  this  Act 
shall,  directly  or  indirectly,  by  any  special  rate,  rebate,  drawback,  or  other 
device,  charge,  demand,  collect,  or  receive  from  any  person  or  persons  a  greater 
or  less  compensation  for  any  service  rendered,  or  to  be  rendered,  in  the  trans- 
portation of  passengers  or  property,  subject  to  the  provisions  of  this  act,  than  it 
charges,  demands,  collects,  or  receives  from  any  other  person  or  persons  for 
doing  for  him  or  them  a  like  and  contemporaneous  service  in  the  transportation 
of  a  like  kind  of  traffic  under  substantially  similar  circumstances  and  conditions, 
such  common  carrier  shall  be  deemed  guilty  of  unjust  discrimination,  which  is 
hereby  prohibited  and  declared  to  be  unlawful. 

Sec.  3.  That  it  shall  be  unlawful  for  any  common  carrier  subject  to  the 
provisions  of  this  act  to  make  or  give  any  undue  or  unreasonable  preference 
or  advantage  to  any  particular  person,  company,  firm,  corporation,  or  locality, 
or  any  particular  description  of  traffic,  in  any  respect  whatsoever,  or  to  subject 
any  particular  person,  company,  firm,  corporation,  or  locality,  or  any  particu- 
lar description  of  traffic,  to  any  undue  or  unreasonable  prejudice  or  disadvantage 
in  any  respect  whatsoever. 

Every  common  carrier  subject  to  the  provisions  of  this  Act  shall,  according 
to  their  respective  powers,  afford  all  reasonable,  proper,  and  equal  facilities 
for  the  interchange  of  traffic  between  their  respective  lines,  and  for  the  receiv- 
ing, forwarding,  and  delivering  of  passengers  and  property  to  and  from  their 
several  lines  and  those  connecting  therewith,  and  shall  not  discriminate  in  their 


1094  APPENDIX. 

rates  and  charges  between  such  connecting  lines;  but  this  shall  not  be  con- 
strued as  requiring  any  such  common  carrier  to  give  the  use  of  its  tracks  or  ter- 
minal facilities  to  another  carrier  engaged  in  like  business. 

Sec.  4.  (As  amended  June  18,  1910.)  That  it  shall  be  unlawful  for  any 
common  carrier  subject  to  the  provisions  of  this  Act  to  charge  or  receive  any 
greater  compensation  in  the  aggregate  for  the  transportation  of  passengers,  or 
of  like  kind  of  property,  for  a  shorter  than  for  a  longer  distance  over  the  same 
line  or  route  in  the  same  direction,  the  shorter  being  included  within  the  longer 
distance,  or  to  charge  any  greater  compensation  as  a  through  route  than  the 
aggregate  of  the  intermediate  rates  subject  to  the  provisions  of  this  Act ;  but 
this  shall  not  be  construed  as  authorizing  any  common  carrier  within  the  terms 
of  this  Act  to  charge  or  receive  as  great  compensation  for  a  shorter  as  for  a  longer 
distance  :  Provided,  however,  That  upon  application  to  the  Interstate  Commerce 
Commission  such  common  carrier  may  in  special  cases,  after  investigation, 
be  authorized  by  the  Commission  to  charge  less  for  longer  than  for  shorter  dis- 
tances for  the  transportation  of  passengers  or  property ;  and  the  Commission 
may  from  time  to  time  prescribe  the  extent  to  which  such  designated  common 
carrier  may  be  relieved  from  the  operation  of  this  section :  Provided  further, 
That  no  rates  or  charges  lawfully  existing  at  the  time  of  the  passage  of  this 
amendatory  Act  shall  be  required  to  be  changed  by  reason  of  the  provisions  of 
this  section  prior  to  the  expiration  of  six  months  after  the  passage  of  this  Act, 
nor  in  any  case  where  application  shall  have  been  filed  before  the  Commission, 
in  accordance  with  the  provisions  of  this  section,  until  a  determination  of  such 
application  by  the  Commission. 

Whenever  a-  carrier  by  railroad  shall  in  competition  with  a  water  route  or 
routes  reduce  the  rates  on  the  carriage  of  any  species  of  freight  to  or  from  com- 
petitive points,  it  shall  not  be  permitted  to  increase  such  rates  unless  after  hear- 
ing by  the  Interstate  Commerce  Commission  it  shall  be  found  that  such  pro- 
posed increase  rests  upon  changed  conditions  other  than  the  elimination  of  water 
competition. 

Sec.  5.  (As  amended  August  24,  1912.)  That  it  shall  be  unlawful  for  any 
common  carrier  subject  to  the  provisions  of  this  Act  to  enter  into  any  contract, 
agreement,  or  combination  with  any  other  common  carrier  or  carriers  for  the 
pooling  of  freights  of  different  and  competing  railroads,  or  to  divide  between 
them  the  aggregate  or  net  proceeds  of  the  earnings  of  such  railroads,  or  any 
portion  thereof ;  and  in  any  case  of  an  agreement  for  the  pooling  of  freights  as 
aforesaid,  each  day  of  its  continuance  shall  be  deemed  a  separate  offense. 

(Amendment  of  August  24,  1912.)  From  and  after  the  first  day  of  July,  nine- 
teen hundred  and  fourteen,  it  shall  be  unlawful  for  any  railroad  company  or 
other  common  carrier  subject  to  the  Act  to  regulate  commerce  to  own,  lease, 
operate,  control,  or  have  any  interest  whatsoever  (by  stock  ownership  or  other- 
wise, either  directly,  indirectly,  through  any  holding  company,  or  by  stock- 
holders or  directors  in  common,  or  in  any  other  manner)  in  any  common  carrier 
by  water  operated  through  the  Panama  Canal  or  elsewhere  with  which  said 
railroad  or  other  carrier  aforesaid  does  or  may  compete  for  traffic  or  any  vessel 
carrying  freight  or  passengers  upon  said  water  route  or  elsewhere  with  which 
said  railroad  or  other  carrier  aforesaid  does  or  may  compete  for  traffic ;  and  in 
case  of  the  violation  of  this  provision  each  day  in  which  such  violation  continues 
shall  be  deemed  a  separate  offense. 

Jurisdiction  is  hereby  conferred  on  the  Interstate  Commerce  Commission  to 
determine  questions  of  fact  as  to  the  competition  or  possibility  of  competition, 


APPENDIX.  1095 

after  full  hearing,  on  the  application  of  any  railroad  company  or  other  carrier. 
Such  application  may  be  filed  for  the  purpose  of  determining  whether  any  exist- 
ing service  is  in  violation  of  this  section  and  pray  for  an  order  permitting  the 
continuance  of  any  vessel  or  vessels  already  in  operation,  or  for  the  purpose  of 
asking  an  order  to  install  new  service  not  in  conflict  with  the  provisions  of  this 
paragraph.  The  Commission  may  on  its  own  motion  or  the  application  of  any 
shipper  institute  proceedings  to  inquire  into  the  operation  of  any  vessel  in  use 
by  any  railroad  or  other  carrier  which  has  not  applied  to  the  Commission  and 
had  the  question  of  competition  or  the  possibility  of  competition  determined  as 
herein  provided.  In  all  such  cases  the  order  of  said  Commission  shall 
be  final. 

If  the  Interstate  Commerce  Commission  shall  be  of  the  opinion  that  any 
such  existing  specified  service  by  water  other  than  through  the  Panama  Canal 
is  being  operated  in  the  interest  of  the  public  and  is  of  advantage  to  the  con- 
venience and  commerce  of  the  people,  and  that  such  extension  will  neither 
exclude,  prevent,  nor  reduce  competition  on  the  route  by  water  under  consid- 
eration, the  Interstate  Commerce  Commission  may,  by  order,  extend  the  time 
during  which  such  service  by  water  may  continue  to  be  operated  beyond  July 
first,  nineteen  hundred  and  fourteen.  In  every  case  of  such  extension  the  rates, 
schedules,  and  practices  of  such  water  carrier  shall  be  filed  with  the  Interstate 
Commerce  Commission  and  shall  be  subject  to  the  Act  to  regulate  commerce 
and  all  amendments  thereto  in  the  same  manner  and  to  the  same  extent  as  is 
the  railroad  or  other  common  carrier  controlling  such  water  carrier  or  interested 
in  any  manner  in  its  operation :  Provided,  Any  application  for  extension  under 
the  terms  of  this  provision  filed  with  the  Interstate  Commerce  Commission  prior 
to  July  first,  nineteen  hundred  and  fourteen,  but  for  any  reason  not  heard  and 
disposed  of  before  said  date,  may  be  considered  and  granted  thereafter. 

No  vessel  permitted  to  engage  in  the  coastwise  or  foreign  trade  of  the  United 
States  shall  be  permitted  to  enter  or  pass  through  said  canal  if  such  ship  is 
owned,  chartered,  operated,  or  controlled  by  any  person  or  company  which  is 
doing  business  in  violation  of  the  provisions  of  the  Act  of  Congress  approved 
July  second,  eighteen  hundred  and  ninety,  entitled  "An  Act  to  protect  trade  and 
commerce  against  unlawful  restraints  and  monopolies,"  or  the  provisions  of 
sections  seventy-three  to  seventy-seven,  both  inclusive,  of  an  Act  approved 
August  twenty-seventh,  eighteen  hundred  and  ninety-four,  entitled  "An  Act 
to  reduce  taxation,  to  provide  revenue  for  the  Government,  and  for  other 
purposes,"  or  the  provisions  of  any  other  Act  of  Congress  amending  or  supple- 
menting the  said  Act  of  July  second,  eighteen  hundred  and  ninety,  commonly 
known  as  the  Sherman  Antitrust  Act,  and  amendments  thereto,  or  said  sections 
of  the  Act  of  August  twenty-seventh,  eighteen  hundred  and  ninety-four.  The 
question  of  fact  may  be  determined  by  the  judgment  of  any  court  of  the  United 
States  of  competent  jurisdiction  in  any  cause  pending  before  it  to  which  the 
owners  or  operators  of  such  ship  are  parties.  Suit  may  be  brought  by  any 
shipper  or  by  the  Attorney  General  of  the  United  States. 

Sec.  6.  (Amended  March  2,  1889.  Following  section  substituted  June  29, 
1906.  Amended  June  18,  1910,  and  August  24,  1912.)  That  every  common 
carrier  subject  to  the  provisions  of  this  Act  shall  file  with  the  Commission  created 
by  this  Act  and  print  and  keep  open  to  public  inspection  schedules  showing  all 
the  rates,  fares,  and  charges  for  transportation  between  different  points  on  its 
own  route  and  between  points  on  its  own  route  and  points  on  the  route  of  any 
other  carrier  by  railroad,  by  pipe  line,  or  by  water  when  a  through  route  and 


1096  APPENDIX. 

joint  rate  have  been  established.  If  no  joint  rate  over  the  through  route  has 
been  established,  the  several  carriers  in  such  through  route  shall  file,  print  and 
keep  open  to  public  inspection  as  aforesaid,  the  separately  established  rates, 
fares  and  charges  applied  to  the  through  transportation.  The  schedules  printed 
as  aforesaid  by  any  such  common  carrier  shall  plainly  state  the  places  between 
which  property  and  passengers  will  be  carried,  and  shall  contain  the  classifica- 
tion of  freight  in  force,  and  shall  also  state  separately  all  terminal  charges, 
storage  charges,  icing  charges,  and  all  other  charges  which  the  Commission 
may  require,  all  privileges  or  facilities  granted  or  allowed  and  any  rules  or  regu- 
lations which  in  any  wise  change,  affect,  or  determine  any  part  or  the  aggregate 
of  such  aforesaid  rates,  fares,  and  charges,  or  the  value  of  the  service  rendered 
to  the  passenger,  shipper,  or  consignee.  Such  schedules  shall  be  plainly  printed 
in  large  type,  and  copies  for  the  use  of  the  public  shall  be  kept  posted  in  two 
public  and  conspicuous  places  in  every  depot,  station,  or  office  of  such  carrier 
where  passengers  or  freight,  respectively,  are  received  for  transportation,  in 
such  form  that  they  shall  be  accessible  to  the  public  and  can  be  conveniently 
inspected.  The  provisions  of  this  section  shall  apply  to  all  traffic,  transporta- 
tion, and  facilities  defined  in  this  Act. 

Any  common  carrier  subject  to  the  provisions  of  this  Act  receiving  freight 
in  the  United  States  to  be  carried  through  a  foreign  country  to  any  place  in  the 
United  States  shall  also  in  like  manner  print  and  keep  open  to  public  inspec- 
tion, at  every  depot  or  office  where  such  freight  is  received  for  shipment,  sched- 
ules showing  the  through  rates  established  and  charged  by  such  common  carrier 
to  all  points  in  the  United  States  beyond  the  foreign  country  to  which  it  accepts 
freight  for  shipment;  and  any  freight  shipped  from  the  United  States  through 
a  foreign  country  into  the  United  States  the  through  rate  on  which  shall  not 
have  been  made  public,  as  required  by  this  Act,  shall,  before  it  is  admitted  into 
the  United  States  from  said  foreign  country,  be  subject  to  customs  duties  as  if 
said  freight  were  of  foreign  production. 

No  change  shall  be  made  in  the  rates,  fares,  and  charges  or  joint  rates,  fares, 
and  charges  which  have  been  filed  and  published  by  any  common  carrier  in 
compliance  with  the  requirements  of  this  section,  except  after  thirty  days' 
notice  to  the  Commission  and  to  the  public  published  as  aforesaid,  which  shall 
plainly  state  the  changes  proposed  to  be  made  in  the  schedule  then  in  force  and 
the  time  when  the  changed  rates,  fares,  or  charges  will  go  into  effect ;  and  the 
proposed  changes  shall  be  shown  by  printing  new  schedules,  or  shall  be  plainly 
indicated  upon  the  schedules  in  force  at  the  time  and  kept  open  to  public  inspec- 
tion :  Provided,  That  the  Commission  may,  in  its  discretion  and  for  good  cause 
shown,  allow  changes  upon  less  than  the  notice  herein  specified,  or  modify  the 
requirements  of  this  section  in  respect  to  publishing,  posting,  and  filing  of  tariffs, 
either  in  particular  instances  or  by  a  general  order  applicable  to  special  or  pecul- 
iar circumstances  or  conditions. 

The  names  of  the  several  carriers  which  are  parties  to  any  joint  tariff  shall 
be  specified  therein,  and  each  of  the  parties  thereto,  other  than  the  one  filing  the 
same,  shall  file  with  the  Commission  such  evidence  of  concurrence  therein  or 
acceptance  thereof  as  may  be  required  or  approved  by  the  Commission,  and 
where  such  evidence  of  concurrence  or  acceptance  is  filed  it  shall  not  be  neces- 
sary for  the  carriers  filing  the  same  to  also  file  copies  of  the  tariffs  in  which  they 
are  named  as  parties. 

Every  common  carrier  subject  to  this  Act  shall  also  file  with  said  Commis- 
sion copies  of  all  contracts,  agreements,  or  arrangements  with  other  common 


APPENDIX.  1097 

carriers  in  relation  to  any  traffic  affected  by  the  provisions  of  this  Act  to  which 
it  may  he  a  party. 

The  Commission  may  determine  and  prescribe  the  form  in  which  the  schedules 
required  by  this  section  to  be  kept  open  to  public  inspection  shall  be  prepared 
and  arranged  and  may  change  the  form  from  time  to  time  as  shall  be  found 
expedient. 

No  carrier,  unless  otherwise  provided  by  this  Act,  shall  engage  or  participate 
in  the  transportation  of  passengers  or  property,  as  defined  in  this  Act,  unless  the 
rates,  fares,  and  charges  upon  which  the  same  are  transported  by  said  carrier 
have  been  filed  and  published  in  accordance  with  the  provisions  of  this  Act; 
nor  shall  any  carrier  charge  or  demand  or  collect  or  receive  a  greater  or  less  or 
different  compensation  for  such  transportation  of  passengers  or  property,  or 
for  any  service  in  connection  therewith,  between  the  points  named  in  such  tariffs 
than  the  rates,  fares,  and  charges  which  are  specified  in  the  tariff  filed  and  in 
effect  at  the  time ;  nor  shall  any  carrier  refund  or  remit  in  any  manner  or  by  any 
device  any  portion  of  the  rates,  fares,  and  charges  so  specified,  nor  extend  to 
any  shipper  or  person  any  privileges  or  facilities  in  the  transportation  of  pas- 
sengers or  property,  except  such  as  are  specified  in  such  tariffs  :  Provided,  That 
wherever  the  word  "carrier"  occurs  in  this  Act  is  shall  be  held  to  mean  "com- 
mon carrier." 

That  in  time  of  war  or  threatened  war  preference  and  precedence  shall,  upon 
the  demand  of  the  President  of  the  United  States,  be  given,  over  all  other  traffic, 
to  the  transportation  of  troops  and  material  of  war,  and  carriers  shall  adopt 
every  means  within  their  control  to  facilitate  and  expedite  the  military 
traffic. 

(Amendment  of  June  18,  1910.)  The  Commission  may  reject  and  refuse  to 
file  any  schedule  that  is  tendered  for  filing  which  does  not  provide  and  give 
lawful  notice  of  its  effective  date,  and  any  schedule  so  rejected  by  the  Commis- 
sion shall  be  void  and  its  use  shall  be  unlawful. 

In  case  of  failure  or  refusal  on  the  part  of  any  carrier,  receiver,  or  trustee 
to  comply  with  the  terms  of  any  regulation  adopted  and  promulgated  or  any 
order  made  by  the  Commission  under  the  provisions  of  this  section,  such  carrier, 
receiver,  or  trustee  shall  be  liable  to  a  penalty  of  five  hundred  dollars  for  each 
such  offense,  and  twenty-five  dollars  for  each  and  every  day  of  the  continuance 
of  such  offense,  which  shall  accrue  to  the  United  States  and  may  be  recovered 
in  a  civil  action  brought  by  the  United  States. 

If  any  common  carrier  subject  to  the  provisions  of  this  Act,  after  written 
request  made  upon  the  agent  of  such  carrier  hereinafter  in  this  section  referred 
to,  by  any  person  or  company  for  a  written  statement  of  the  rate  or  charge 
applicable  to  a  described  shipment  between  stated  places  under  the  schedules 
or  tariffs  to  which  such  carrier  is  a  party,  shall  refuse  or  omit  to  give  such  written 
statement  within  a  reasonable  time,  or  shall  misstate  in  writing  the  applicable 
rate,  and  if  the  person  or  company  making  such  request  suffers  damage  in  conse- 
quence of  such  refusal  or  omission  or  in  consequence  of  the  misstatement  of  the 
rate,  either  through  making  the  shipment  over  a  line  or  route  for  which  the 
proper  rate  is  higher  than  the  rate  over  another  available  line  or  route,  or  through 
entering  into  any  sale  or  other  contract  whereunder  such  person  or  company 
obligates  himself  or  itself  to  make  such  shipment  of  freight  at  his  or  its  cost,  then 
the  said  carrier  shall  be  liable  to  a  penalty  of  two  hundred  and  fifty  dollars, 
which  shall  accrue  to  the  United  States  and  may  be  recovered  in  a  civil  action 
brought  by  the  United  States. 


1098  APPENDIX. 

It  shall  be  the  duty  of  every  carrier  by  railroad  to  keep  at  all  times  conspic- 
uously posted  in  every  station  where  freight  is  received  for  transportation  the 
name  of  an  agent  resident  in  the  city,  village,  or  town  where  such  station  is 
located,  to  whom  application  may  be  made  for  the  information  by  this  section 
required  to  be  furnished  on  written  request ;  and  in  case  any  carrier  shall  fail 
at  any  time  to  have  such  name  so  posted  in  any  station,  it  shall  be  sufficient  to 
address  such  request  in  substantially  the  following  form  :   "The  Station  Agent 

of  the Company  at Station,"  together  with  the  name  of  the  proper 

post  office,  inserting  the  name  of  the  carrier  company  and  of  the  station  in  the 
blanks,  and  to  serve  the  same  by  depositing  the  request  so  addressed,  with 
postage  thereon  prepaid,  in  any  post  office. 

{Amendment  of  August  24,  1912.)  When  property  may  be  or  is  transported 
from  point  to  point  in  the  United  States  by  rail  and  water  through  the  Panama 
Canal  or  otherwise,  the  transportation  being  by  a  common  carrier  or  carriers, 
and  not  entirely  within  the  limits  of  a  single  State,  the  Interstate  Commerce 
■Commission  shall  have  jurisdiction  of  such  transportation  and  of  the  carriers, 
both  by  rail  and  by  water,  which  may  or  do  engage  in  the  same,  in  the  following 
particulars,  in  addition  to  the  jurisdiction  given  by  the  Act  to  regulate  com- 
merce, as  amended  June  eighteenth,  nineteen  hundred  and  ten  : 

(a)  To  establish  physical  connection  between  the  lines  of  the  rail  carrier 
and  the  dock  of  the  water  carrier  by  directing  the  rail  carrier  to  make  suitable 
connection  between  its  line  and  a  track  or  tracks  which  have  been  constructed 
from  the  dock  to  the  limits  of  its  right  of  way,  or  by  directing  either  or  both  the 
rail  and  water  carrier,  individually  or  in  connection  with  one  another,  to  con- 
struct and  connect  with  the  lines  of  the  rail  carrier  a  spur  track  or  tracks  to  the 
dock.  This  provision  shall  only  apply  where  such  connection  is  reasonably 
practicable,  can  be  made  with  safety  to  the  public,  and  where  the  amount  of 
business  to  be  handled  is  sufficient  to  justify  the  outlay. 

The  Commission  shall  have  full  authority  to  determine  the  terms  and  condi- 
tions upon  which  these  connecting  tracks,  when  constructed,  shall  be  operated, 
and  it  may,  either  in  the  construction  or  the  operation  of  such  tracks,  determine 
what  sum  shall  be  paid  to  or  by  either  carrier.  The  provisions  of  this  para- 
graph shall  extend  to  cases  where  the  dock  is  owned  by  other  parties  than  the 
carrier  involved. 

(b)  To  establish  through  routes  and  maximum  joint  rates  between  and  over 
such  rail  and  water  lines,  and  to  determine  all  the  terms  and  conditions  under 
which  such  lines  shall  be  operated  in  the  handling  of  the  traffic  embraced. 

(c)  To  establish  maximum  proportional  rates  by  rail  to  and  from  the  ports 
to  which  the  traffic  is  brought,  or  from  which  it  is  taken  by  the  water  carrier, 
and  to  determine  to  what  traffic  and  in  connection  with  what  vessels  and  upon 
what  terms  and  conditions  such  rates  shall  apply.  By  proportional  rates  are 
meant  those  which  differ  from  the  corresponding  local  rates  to  and  from  the 
port  and  which  apply  only  to  traffic  which  has  been  brought  to  the  port  or  is 
carried  from  the  port  by  a  common  carrier  by  water. 

(d)  If  any  rail  carrier  subject  to  the  Act  to  regulate  commerce  enters  into 
arrangements  with  any  water  carrier  operating  from  a  port  in  the  United  States 
to  a  foreign  country,  through  the  Panama  Canal  or  otherwise,  for  the  handling 
of  through  business  between  interior  points  of  the  United  States  and  such  foreign 
country,  the  Interstate  Commerce  Commission  may  require  such  railway  to 
enter  into  similar  arrangements  with  any  or  all  other  lines  of  steamships  operat- 
ing from  said  port  to  the  same  foreign  country. 


APPENDIX.  1099 

The  orders  of  the  Interstate  Commerce  Commission  relating  to  this  section 
shall  only  be  made  upon  formal  complaint  or  in  proceedings  instituted  by  the 
Commission  of  its  own  motion  and  after  full  hearing.  The  orders  provided 
for  in  the  two  amendments  to  the  Act  to  regulate  commerce  enacted  in  this 
section  shall  be  served  in  the  same  manner  and  enforced  by  the  same  penalties 
and  proceedings  as  are  the  orders  of  the  Commission  made  under  the  provisions 
of  section  fifteen  of  the  Act  to  regulate  commerce,  as  amended  June  eighteenth, 
nineteen  hundred  and  ten,  and  they  may  be  conditioned  for  the  payment  of  any 
sum  or  the  giving  of  security  for  the  payment  of  any  sum  or  the  discharge  of 
any  obligation  which  may  be  required  by  the  terms  of  said  order. 

Sec.  7.  That  it  shall  be  unlawful  for  any  common  carrier  subject  to  the  pro- 
visions of  this  Act  to  enter  into  any  combination,  contract,  or  agreement,  ex- 
pressed or  implied,  to  prevent,  by  change  of  time  schedule,  carriage  in  different 
cars,  or  by  other  means  or  devices,  the  carriage  of  freights  from  being  continuous 
from  the  place  of  shipment  to  the  place  of  destination ;  and  no  break  of  bulk, 
stoppage,  or  interruption  made  by  such  common  carrier  shall  prevent  the  car- 
riage of  freights  from  being  and  being  treated  as  one  continuous  carriage  from  the 
place  of  shipment  to  the  place  of  destination,  unless  such  break,  stoppage,  or 
interruption  was  made  in  good  faith  for  some  necessary  purpose,  and  without 
any  intent  to  avoid  or  unnecessarily  interrupt  such  continuous  carriage  or  to 
evade  any  of  the  provisions  of  this  Act. 

Sec.  8.  That  in  case  any  common  carrier  subject  to  the  provisions  of  this 
Act  shall  do,  cause  to  be  done,  or  permit  to  be  done  any  act,  matter,  or  thing  in 
this  Act  prohibited  or  declared  to  be  unlawful,  or  shall  omit  to  do  any  act, 
matter,  or  thing  in  this  Act  required  to  be  done,  such  common  carrier  shall  be 
liable  to  the  person  or  persons  injured  thereby  for  the  full  amount  of  damages 
sustained  in  consequence  of  any  such  violation  of  the  provisions  of  this  Act, 
together  with  a  reasonable  counsel  or  attorney's  fee,  to  be  fixed  by  the  court  in 
every  case  of  recovery,  which  attorney's  fee  shall  be  taxed  and  collected  as  part 
of  the  costs  in  the  case. 

Sec.  9.  That  any  person  or  persons  claiming  to  be  damaged  by  any  common 
carrier  subject  to  the  provisions  of  this  Act  may  either  make  complaint  to  the 
Commission  as  hereinafter  provided  for,  or  may  bring  suit  in  his  or  their  own  be- 
half for  the  recovery  of  the  damages  for  which  such  common  carrier  may  be 
liable  under  the  provisions  of  this  Act,  in  any  district  or  circuit  court  of  the 
United  States  of  competent  jurisdiction ;  but  such  person  or  persons  shall  not 
have  the  right  to  pursue  both  of  said  remedies,  and  must  in  each  case  elect  which 
one  of  the  two  methods  of  procedure  herein  provided  for  he  or  they  will  adopt. 
In  any  such  action  brought  for  the  recovery  of  damages  the  court  before  which 
the  same  shall  be  pending  may  compel  any  director,  officer,  receiver,  trustee,  or 
agent  of  the  corporation  or  company  defendant  in  such  suit  to  attend,  appear, 
and  testify  in  such  case,  and  may  compel  the  production  of  the  books  and  papers 
of  such  corporation  or  company  party  to  any  such  suit ;  the  claim  that  any  such 
testimony  or  evidence  may  tend  to  criminate  the  person  giving  such  evidence 
shall  not  excuse  such  witness  from  testifying,  but  such  evidence  or  testimony 
shall  not  be  used  against  such  person  on  the  trial  of  any  criminal  proceeding. 

Sec.  10.  (As  amended  March  2,  1S89,  and  June  IS,  1910.)  That  any  com- 
mon carrier  subject  to  the  provisions  of  this  Act,  or,  whenever  such  common 
carrier  is  a  corporation,  any  director  or  officer  thereof,  or  any  receiver,  trustee, 
lessee,  agent,  or  person  acting  for  or  employed  by  such  corporation,  who,  alone 
or  with  any  other  corporation,  company,  person,  or  party,  shall  willfully  do  or 


1100  APPENDIX. 

cause  to  be  done,  or  shall  willingly  suffer  or  permit  to  be  done,  any  act,  matter, 
or  thing  in  this  Act  prohibited  or  declared  to  be  unlawful,  or  who  shall  aid  or 
abet  therein,  or  shall  willfully  omit  or  fail  to  do  any  act,  matter,  or  thing  in  this 
Act  required  to  be  done,  or  shall  cause  or  willingly  suffer  or  permit  any  act, 
matter,  or  thing  so  directed  or  required  by  this  Act  to  be  done  not  to  be  so  done, 
or  shall  aid  or  abet  any  such  omission  or  failure,  or  shall  be  guilty  of  any  infrac- 
tion of  this  Act  for  which  no  penalty  is  otherwise  provided,  or  who  shall  aid  or 
abet  therein,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  convic- 
tion thereof  in  any  district' court  of  the  United  States  within  the  jurisdiction  of 
which  such  offense  was  committed,  be  subject  to  a  fine  of  not  to  exceed  five 
thousand  dollars  for  each  offense :  Provided,  That  if  the  offense  for  which  any 
person  shall  be  convicted  as  aforesaid  shall  be  an  unlawful  discrimination  in 
rates,  fares,  or  charges  for  the  transportation  of  passengers  or  property,  such 
person  shall,  in  addition  to  the  fine  hereinbefore  provided  for,  be  liable  to  im- 
prisonment in  the  penitentiary  for  a  term  of  not  exceeding  two  years,  or  both 
such  fine  and  imprisonment,  in  the  discretion  of  the  court. 

Any  common  carrier  subject  to  the  provisions  of  this  Act,  or,  whenever  such 
common  carrier  is  a  corporation,  any  officer  or  agent  thereof,  or  any  person  act- 
ing for  or  employed  by  such  corporation,  who,  by  means  of  false  billing,  false 
classification,  false  weighing,  or  false  report  of  weight,  or  by  any  other  device  or 
means,  shall  knowingly  and  willfully  assist,  or  shall  willingly  suffer  or  permit,  any 
person  or  persons  to  obtain  transportation  for  property  at  less  than  the  regular 
rates  then  established  and  in  force  on  the  line  of  transportation  of  such  common 
carrier,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  conviction 
thereof  in  any  court  of  the  United  States  of  competent  jurisdiction  within  the 
district  in  which  such  offense  was  committed,  be  subject  to  a  fine  of  not  exceed- 
ing five  thousand  dollars,  or  imprisonment  in  the  penitentiary  for  a  term  of  not 
exceeding  two  years,  or  both,  in  the  discretion  of  the  court,  for  each  offense. 

Any  person,  corporation,  or  company,  or  any  agent  or  officer  thereof,  who 
shall  deliver  property  for  transportation  to  any  common  carrier  subject  to  the 
provisions  of  this  Act,  or  for  whom,  as  consignor  or  consignee,  any  such  carrier 
shall  transport  property,  who  shall  knowingly  and  willfully,  directly  or  indirectly, 
himself  or  by  employee,  agent,  officer,  or  otherwise,  by  false  billing,  false  classi- 
fication, false  weighing,  false  representation  of  the  contents  of  the  package  or 
the  substance  of  the  property,  false  report  of  weight,  false  statement,  or  by  any 
other  device  or  means,  whether  with  or  without  the  consent  or  connivance  of  the 
carrier,  its  agent,  or  officer,  obtain  or  attempt  to  obtain  transportation  for  such 
property  at  less  than  the  regular  rates  then  established  and  in  force  on  the  line 
of  transportation;  or  who  shall  knowingly  and  willfully,  directly  or  indirectly, 
himself  or  by  employee,  agent,  officer,  or  otherwise,  by  false  statement  or  repre- 
sentation as  to  cost,  value,  nature,  or  extent  of  injury,  or  by  the  use  of  any  false 
bill,  bill  of  lading,  receipt,  voucher,  roll,  account,  claim,  certificate,  affidavit, 
or  deposition,  knowing  the  same  to  be  false,  fictitious,  or  fraudulent,  or  to  con- 
tain any  false,  fictitious,  or  fraudulent  statement  or  entry,  obtain  or  attempt  to 
obtain  any  allowance,  refund,  or  payment  for  damage  or  otherwise  in  connec- 
tion with  or  growing  out  of  the  transportation  of  or  agreement  to  transport  such 
property,  whether  with  or  without  the  consent  or  connivance  of  the  carrier, 
whereby  the  compensation  of  such  carrier  for  such  transportation,  either  before 
or  after  payment,  shall  in  fact  be  made  less  than  the  regular  rates  then  estab- 
lished and  in  force  on  the  line  of  transportation,  shall  be  deemed  guilty  of  fraud, 
which  is  hereby  declared  to  be  a  misdemeanor,  and  shall,  upon  conviction  thereof 


APPENDIX.  1101 

in  any  court  of  the  United  States  of  competent  jurisdiction  within  the  district 
in  which  such  offense  was  wholly  or  in  part  committed,  be  subject  for  each  offense 
to  a  fine  of  not  exceeding  five  thousand  dollars  or  imprisonment  in  the  peniten- 
tiary for  a  term  of  not  exceeding  two  years,  or  both,  in  the  discretion  of  the  court : 
Provided,  That  the  penalty  of  imprisonment  shall  not  apply  to  artificial 
persons. 

If  any  such  person,  or  any  officer  or  agent  of  any  such  corporation  or  company, 
shall,  by  payment  of  money  or  other  thing  of  value,  solicitation,  or  otherwise, 
induce  or  attempt  to  induce  any  common  carrier  subject  to  the  provisions  of 
this  Act,  or  any  of  its  officers  or  agents,  to  discriminate  unjustly  in  his,  its  or  their 
favor  as  against  any  other  consignor  or  consignee  in  the  transportation  of 
property,  or  shall  aid  or  abet  any  common  carrier  in  any  such  unjust  discrimi- 
nation, such  person  or  such  officer  or  agent  of  such  corporation  or  company 
shall  be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  conviction  thereof  in 
any  court  of  the  United  States  of  competent  jurisdiction  within  the  district  in 
which  such  offense  was  committed,  be  subject  to  a  fine  of  not  exceeding  five 
thousand  dollars,  or  imprisonment  in  the  penitentiary  for  a  term  of  not  exceed- 
ing two  years,  or  both,  in  the  discretion  of  the  court,  for  each  offense ;  and  such 
person,  corporation,  or  company  shall  also,  together  with  said  common  carrier, 
be  liable,  jointly  or  severally,  in  an  action  to  be  brought  by  any  consignor  or 
consignee  discriminated  against  in  any  court  of  the  United  States  of  competent 
jurisdiction  for  all  damages  caused  by  or  resulting  therefrom. 

Sec.  11.  That  a  Commission  is  hereby  created  and  established  to  be  known 
as  the  Interstate  Commerce  Commission,  which  shall  be  composed  of  five  com- 
missioners, who  shall  be  appointed  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate.  The  Commissioners  first  appointed  under  this  Act 
shall  continue  in  office  for  the  term  of  two,  three,  four,  five,  and  six  years,  re- 
spectively, from  the  first  day  of  January,  Anno  Domini  eighteen  hundred  and 
eighty-seven,  the  term  of  each  to  be  designated  by  the  President ;  but  their 
successors  shall  be  appointed  for  terms  of  six  years,  except  that  any  person 
chosen  to  fill  a  vacancy  shall  be  appointed  only  for  the  unexpired  time  of  the 
Commissioner  whom  he  shall  succeed.  Any  Commissioner  may  be  removed 
by  the  President  for  inefficiency,  neglect  of  duty,  or  malfeasance  in  office.  Not 
more  than  three  of  the  Commissioners  shall  be  appointed  from  the  same  politi- 
cal party.  No  person  in  the  employ  of  or  holding  any  official  relation  to  any 
common  carrier  subject  to  the  provisions  of  this  Act,  or  owning  stock  or  bonds 
thereof,  or  who  is  in  any  manner  pecuniarily  interested  therein,  shall  enter 
upon  the  duties  of  or  hold  such  office.  Said  Commissioners  shall  not  engage 
in  any  other  business,  vocation,  or  employment.  No  vacancy  in  the  Commis- 
sion shall  impair  the  right  of  the  remaining  Commissioners  to  exercise  all  the 
powers  of  the  Commission.  (See  section  24,  enlarging  Commission  and  increas- 
ing salaries.) 

Sec.  12.  (As  amended  March  2,  1889,  and  February  10,  1891.)  That  the 
Commission  hereby  created  shall  have  authority  to  inquire  into  the  manage- 
ment of  the  business  of  all  common  carriers  subject  to  the  provisions  of  this  Act, 
and  shall  keep  itself  informed  as  to  the  manner  and  method  in  which  the  same  is 
conducted,  and  shall  have  the  right  to  obtain  from  such  common  carriers  full 
and  complete  information  necessary  to  enable  the  Commission  to  perform  the 
duties  and  carry  out  the  objects  for  which  it  was  created ;  and  the  Commission 
is  hereby  authorized  and  required  to  execute  and  enforce  the  provisions  of  this 
Act ;  and,  upon  the  request  of  the  Commission,  it  shall  be  the  duty  of  any  dis- 


1102  APPENDIX. 

trlct  attorney  of  the  United  States  to  whom  the  Commission  may  apply  to  insti- 
tute in  the  proper  court  and  to  prosecute  under  the  direction  of  the  Attorney 
General  of  the  United  States  all  necessary  proceedings  for  the  enforcement  of  the 
provisions  of  this  Act  and  for  the  punishment  of  all  violations  thereof,  and  the 
costs  and  expenses  of  such  prosecution  shall  be  paid  out  of  the  appropriation 
for  the  expenses  of  the  courts  of  the  United  States ;  and  for  the  purposes  of  this 
Act  the  Commission  shall  have  power  to  require,  by  subpoena,  the  attendance 
and  testimony  of  witnesses  and  the  production  of  all  books,  papers,  tariffs,  con- 
tracts, agreements,  and  documents  relating  to  any  matter  under  investigation. 

Such  attendance  of  witnesses,  and  the  production  of  such  documentary 
evidence,  may  be  required  from  any  place  in  the  United  States,  at  any  desig- 
nated place  of  hearing.  And  in  case  of  disobedience  to  a  subpoena  the  Com- 
mission, or  any  party  to  a  proceeding  before  the  Commission,  may  invoke  the 
aid  of  any  court  of  the  United  States  in  requiring  the  attendance  and  testimony 
of  witnesses  and  the  production  of  books,  papers,  and  documents  under  the 
provisions  of  this  section. 

And  any  of  the  circuit  courts  of  the  United  States  within  the  jurisdiction  of 
which  such  inquiry  is  carried  on  may,  in  case  of  contumacy  or  refusal  to  obey  a 
subpoena  issued  to  any  common  carrier  subject  to  the  provisions  of  this  Act, 
or  other  person,  issue  an  order  requiring  such  common  carrier  or  other  person 
to  appear  before  said  Commission  (and  produce  books  and  papers  if  so  ordered) 
and  give  evidence  touching  the  matter  in  question ;  and  any  failure  to  obey 
such  order  of  the  court  may  be  punished  by  such  court  as  a  contempt  thereof. 
The  claim  that  any  such  testimony  or  evidence  may  tend  to  criminate  the  per- 
son giving  such  evidence  shall  not  excuse  such  witness  from  testifying ;  but  such 
evidence  or  testimony  shall  not  be  used  against  such  person  on  the  trial  of  any 
criminal  proceeding. 

The  testimony  of  any  witness  may  be  taken,  at  the  instance  of  a  party,  in  any 
proceeding  or  investigation  pending  before  the  Commission,  by  deposition,  at 
any  time  after  a  cause  or  proceeding  is  at  issue  on  petition  and  answer.  The 
Commission  may  also  order  testimony  to  be  taken  by  deposition  in  any  proceed- 
ing or  investigation  pending  before  it,  at  any  stage  of  such  proceeding  or  inves- 
tigation. Such  depositions  may  be  taken  before  any  judge  of  any  court  of  the 
United  States,  or  any  commissioner  of  a  circuit,  or  any  clerk  of  a  district  or  cir- 
cuit court,  or  any  chancellor,  justice,  or  judge  of  a  supreme  or  superior  court, 
mayor  or  chief  magistrate  of  a  city,  judge  of  a  county  court,  or  court  of  common 
pleas  of  any  of  the  United  States,  or  any  notary  public,  not  being  of  counsel 
or  attorney  to  either  of  the  parties,  nor  interested  in  the  event  of  the  proceeding 
or  investigation.  Reasonable  notice  must  first  be  given  in  writing  by  the  party 
or  his  attorney  proposing  to  take  such  deposition  to  the  opposite  party  or  his 
attorney  of  record,  as  either  may  be  nearest,  which  notice  shall  state  the  name 
of  the  witness  and  the  time  and  place  of  the  taking  of  his  deposition.  Any 
person  may  be  compelled  to  appear  and  depose,  and  to  produce  documentary 
evidence,  in  the  same  manner  as  witnesses  may  be  compelled  to  appear  and  tes- 
tify and  produce  documentary  evidence  before  the  Commission  as  hereinbefore 
provided. 

Every  person  deposing  as  herein  provided  shall  be  cautioned  and  sworn  (or 
affirm,  if  he  so  request)  to  testify  the  whole  truth,  and  shall  be  carefully  exam- 
ined. His  testimony  shall  be  reduced  to  writing  by  the  magistrate  taking  the 
deposition,  or  under  his  direction,  and  shall,  after  it  has  been  reduced  to  writing, 
be  subscribed  by  the  deponent. 


APPENDIX.  1103 

If  a  witness  whose  testimony  may  be  desired  to  be  taken  by  deposition  be  in 
a  foreign  country,  the  deposition  may  be  taken  before  an  officer  or  person  desig- 
nated by  the  Commission,  or  agreed  upon  by  the  parties  by  stipulation  in  writ- 
ing to  be  filed  with  the  Commission.  All  depositions  must  be  promptly  filed 
with  the  Commission. 

Witnesses  whose  depositions  are  taken  pursuant  to  this  Act,  and  the  magis- 
trate or  other  officer  taking  the  same,  shall  severally  be  entitled  to  the  same 
fees  as  are  paid  for  like  services  in  the  courts  of  the  United  States. 

Sec.  13.  (As  amended  June  18,  1910.)  That  any  person,  firm,  corporation, 
company,  or  association,  or  any  mercantile,  agricultural,  or  manufacturing 
society  or  other  organization,  or  any  body  politic  or  municipal  organization, 
or  any  common  carrier,  complaining  of  anything  done  or  omitted  to  be  done  by 
any  common  carrier  subject  to  the  provisions  of  this  Act,  in  contravention  of  the 
provisions  thereof,  may  apply  to  said  Commission  by  petition,  which  shall  briefly 
state  the  facts ;  whereupon  a  statement  of  the  complaint  thus  made  shall  be  for- 
warded by  the  Commission  to  such  common  carrier,  who  shall  be  called  upon  to 
satisfy  the  complaint,  or  to  answer  the  same  in  writing,  within  a  reasonable 
time,  to  be  specified  by  the  Commission.  If  such  common  carrier  within  the 
time  specified  shall  make  reparation  for  the  injury  alleged  to  have  been  done, 
the  common  carrier  shall  be  relieved  of  liability  to  the  complainant  only  for  the 
particular  violation  of  law  thus  complained  of.  If  such  carrier  or  carriers  shall 
not  satisfy  the  complaint  within  the  time  specified,  or  there  shall  appear  to  be 
any  reasonable  ground  for  investigating  said  complaint,  it  shall  be  the  duty 
of  the  Commission  to  investigate  the  matters  complained  of  in  such  manner 
and  by  such  means  as  it  shall  deem  proper. 

Said  Commission  shall,  in  like  manner  and  with  the  same  authority  and 
powers,  investigate  any  complaint  forwarded  by  the  railroad  commissioner  or 
railroad  commission  of  any  State  or  Territory  at  the  request  of  such  commis- 
sioner or  commission,  and  the  Interstate  Commerce  Commission  shall  have  full 
authority  and  power  at  any  time  to  institute  an  inquiry,  on  its  own  motion,  in 
any  case  and  as  to  any  matter  or  thing  concerning  which  a  complaint  is  author- 
ized to  be  made,  to  or  before  said  Commission  by  any  provision  of  this  Act,  or 
concerning  which  any  question  may  arise  under  any  of  the  provisions  of  this  Act, 
or  relating  to  the  enforcement  of  any  of  the  provisions  of  this  Act.  And  the  said 
Commission  shall  have  the  same  powers  and  authority  to  proceed  with  any  in- 
quiry instituted  on  its  own  motion  as  though  it  had  been  appealed  to  by  complaint 
or  petition  under  any  of  the  provisions  of  this  Act,  including  the  power  to  make 
and  enforce  any  order  or  orders  in  the  case,  or  relating  to  the  matter  or  thing 
concerning  which  the  inquiry  is  had  excepting  orders  for  the  payment  of  money. 
No  complaint  shall  at  any  time  be  dismissed  because  of  the  absence  of  direct 
damage  to  the  complainant. 

Sec.  14.  (Amended  March  2,  1889,  and  June  29,  1906.)  That  whenever  an 
investigation  shall  be  made  by  said  Commission,  it  shall  be  its  duty  to  make 
a  report  in  writing  in  respect  thereto,  which  shall  state  the  conclusions  of  the 
Commission,  together  with  its  decision,  order,  or  requirement  in  the  premises ; 
and  in  case  damages  are  awarded  such  report  shall  include  the  findings  of  fact  on 
which  the  award  is  made. 

All  reports  of  investigations  made  by  the  Commission  shall  be  entered  of  rec- 
ord, and  a  copy  thereof  shall  be  furnished  to  the  party  who  may  have  com- 
plained, and  to  any  common  carrier  that  may  have  been  complained  of. 

The  Commission  may  provide  for  the  publication  of  its  reports  and  decisions 


1104  APPENDIX. 

in  such  form  and  manner  as  may  be  best  adapted  for  public  information  and  use, 
and  such  authorized  publications  shall  be  competent  evidence  of  the  reports 
and  decisions  of  the  Commission  therein  contained  in  all  courts  of  the  United 
States  and  of  the  several  States  without  any  further  proof  or  authentication 
thereof.  The  Commission  may  also  cause  to  be  printed  for  early  distribution 
its  annual  reports. 

Sec.  15.  (As  amended  June  29,  1906,  and  June  18,  1910.)  That  whenever, 
after  full  hearing  upon  a  complaint  made  as  provided  in  section  thirteen  of  this 
Act,  or  after  full  hearing  under  an  order  for  investigation  and  hearing  made  by 
the  Commission  on  its  own  initiative  (either  in  extension  of  any  pending  complaint 
or  without  any  complaint  whatever),  the  Commission  shall  be  of  opinion  that 
any  individual  or  joint  rates  or  charges  whatsoever  demanded,  charged,  or  col- 
lected by  any  common  carrier  or  carriers  subject  to  the  provisions  of  this  Act 
for  the  transportation  of  persons  or  property  or  for  the  transmission  of  messages 
by  telegraph  or  telephone  as  defined  in  the  first  section  of  this  Act,  or  that  any 
individual  or  joint  classifications,  regulations,  or  practices  whatsoever  of  such 
carrier  or  carriers  subject  to  the  provisions  of  this  Act  are  unjust  or  unreasonable 
or  unjustly  discriminatory,  or  unduly  preferential  or  prejudicial  or  otherwise 
in  violation  of  any  of  the  provisions  of  this  Act,  the  Commission  is  hereby  au- 
thorized and  empowered  to  determine  and  prescribe  what  will  be  the  just  and 
reasonable  individual  or  joint  rate  or  rates,  charge  or  charges,  to  be  thereafter 
observed  in  such  case  as  the  maximum  to  be  charged,  and  what  individual  or 
joint  classification,  regulation,  or  practice  is  just,  fair,  and  reasonable,  to  be 
thereafter  followed,  and  to  make  an  order  that  the  carrier  or  carriers  shall  cease 
and  desist  from  such  violation  to  the  extent  to  which  the  Commission  finds  the 
same  to  exist,  and  shall  not  thereafter  publish,  demand,  or  collect  any  rate  or 
charge  for  such  transportation  or  transmission  in  excess  of  the  maximum  rate 
or  charge  so  prescribed,  and  shall  adopt  the  classification  and  shall  conform  to 
and  observe  the  regulation  or  practice  so  prescribed.  All  orders  of  the  Com- 
mission, except  orders  for  the  payment  of  money,  shall  take  effect  within  such 
reasonable  time,  not  less  than  thirty  days,  and  shall  continue  in  force  for  such 
period  of  time,  not  exceeding  two  years,  as  shall  be  prescribed  in  the  order  of  the 
Commission,  unless  the  same  shall  be  suspended  or  modified  or  set  aside  by  the 
Commission,  or  be  suspended  or  set  aside  by  a  court  of  competent  jurisdiction. 
Whenever  the  carrier  or  carriers,  in  obedience  to  such  order  of  the  Commission 
or  otherwise,  in  respect  to  joint  rates,  fares,  or  charges,  shall  fail  to  agree  among 
themselves  upon  the  apportionment  or  division  thereof  the  Commission  may, 
after  hearing,  make  a  supplemental  order  prescribing  the  just  and  reasonable 
proportion  of  such  joint  rate  to  be  received  by  each  carrier  party  thereto,  which 
order  shall  take  effect  as  a  part  of  the  original  order. 

Whenever  there  shall  be  filed  with  the  Commission  any  schedule  stating  a  new 
individual  or  joint  rate,  fare,  or  charge,  or  any  new  individual  or  joint  classifica- 
tion, or  any  new  individual  or  joint  regulation  or  practice  affecting  any  rate,  fare, 
or  charge,  the  Commission  shall  have,  and  it  is  hereby  given,  authority,  either 
upon  complaint  or  upon  its  own  initiative  without  complaint,  at  once,  and  if 
it  so  orders,  without  answer  or  other  formal  pleading  by  the  interested  carrier 
or  carriers,  but  upon  reasonable  notice,  to  enter  upon  a  hearing  concerning  the 
propriety  of  such  rate,  fare,  charge,  classification,  regulation,  or  practice ;  and 
pending  such  hearing  and  the  decision  thereon  the  Commission  upon  filing  with 
such  schedule  and  delivering  to  the  carrier  or  carriers  affected  thereby  a  state- 
ment in  writing  of  its  reasons  for  such  suspension  may  suspend  the  operation  of 


APPENDIX.  1105 

such  schedule  and  defer  the  use  of  such  rate,  fare,  charge,  classification,  regula- 
tion, or  practice,  but  not  for  a  longer  period  than  one  hundred  and  twenty 
days  beyond  the  time  when  such  rate,  fare,  charge,  classification,  regulation,  or 
practice  would  otherwise  go  into  effect ;  and  after  full  hearing,  whether  com- 
pleted before  or  after  the  rate,  fare,  charge,  classification,  regulation,  or  practice 
goes  into  effect,  the  Commission  may  make  such  order  in  reference  to  such  rate, 
fare,  charge,  classification,  regulation,  or  practice  as  would  be  proper  in  a  pro- 
ceeding initiated  after  the  rate,  fare,  charge,  classification,  regulation,  or  practice 
had  become  effective  :  Provided,  That  if  any  such  hearing  can  not  be  concluded 
within  the  period  of  suspension,  as  above  stated,  the  Interstate  Commerce  Com- 
mission may,  in  its  discretion,  extend  the  time  of  suspension  for  a  further 
period  not  exceeding  six  months.  At  any  hearing  involving  a  rate  increased 
after  January  first,  nineteen  hundred  and  ten,  or  of  a  rate  sought  to  be  increased 
after  the  passage  of  this  Act,  the  burden  of  proof  to  show  that  the  increased 
rate  or  proposed  increased  rate  is  just  and  reasonable  shall  be  upon  the  common 
carrier,  and  the  Commission  shall  give  to  the  hearing  and  decision  of  such  ques- 
tions preference  over  all  other  questions  pending  before  it  and  decide  the  same 
as  speedily  as  possible. 

The  Commission  may  also,  after  hearing,  on  a  complaint  or  upon  its  own  ini- 
tiative without  complaint,  establish  through  routes  and  joint  classifications,  and 
may  establish  joint  rates  as  the  maximum  to  be  charged  and  may  prescribe  the 
division  of  such  rates  as  hereinbefore  provided  and  the  terms  and  conditions 
under  which  such  through  routes  shall  be  operated,  whenever  the  carriers  them- 
selves shall  have  refused  or  neglected  to  establish  voluntarily  such  through 
routes  or  joint  classifications  or  joint  rates ;  and  this  provision  shall  apply  when 
one  of  the  connecting  carriers  is  a  water  line.  The  Commission  shall  not,  how- 
ever, establish  any  through  route,  classification,  or  rate  between  street  electric 
passenger  railways  not  engaged  in  the  general  business  of  transporting  freight 
in  addition  to  their  passenger  and  express  business  and  railroads  of  a  different 
character,  nor  shall  the  Commission  have  the  right  to  establish  any  route,  class- 
ification, rate,  fare,  or  charge  when  the  transportation  is  wholly  by  water,  and 
any  transportation  by  water  affected  by  this  Act  shall  be  subject  to  the  laws  and 
regulations  applicable  to  transportation  by  water. 

And  in  establishing  such  through  route,  the  Commission  shall  not  require 
any  company,  without  its  consent,  to  embrace  in  such  routes  substantially  less 
than  the  entire  length  of  its  railroad  and  of  any  intermediate  railroad  operated 
in  conjunction  and  under  a  common  management  or  control  therewith  which  lies 
between  the  termini  of  such  proposed  through  route,  unless  to  do  so  would  make 
such  through  route  unreasonably  long  as  compared  with  another  practicable 
through  route  which  could  otherwise  be  established. 

In  all  cases  where  at  the  time  of  delivery  of  property  to  any  railroad  corpora- 
tion being  a  common  carrier,  for  transportation  subject  to  the  provisions  of  this 
Act  to  any  point  of  destination,  between  which  and  the  point  of  such  delivery 
for  shipment  two  or  more  through  routes  and  through  rates  shall  have  been 
established  as  in  this  Act  provided  to  which  through  routes  and  through  rates 
such  carrier  is  a  party,  the  person,  firm,  or  corporation  making  such  shipment, 
subject  to  such  reasonable  exceptions  and  regulations  as  the  Interstate  Commerce 
Commission  shall  from  time  to  time  prescribe,  shall  have  the  right  to  designate 
in  writing  by  which  of  such  through  routes  such  property  shall  be  transported  to 
destination,  and  it  shall  thereupon  be  the  duty  of  the  initial  carrier  to  route 
said  property  and  issue  a  through  bill  of  lading  therefor  as  so  directed,  and  to 


1106  APPENDIX. 

transport  said  property  over  its  own  line  or  lines  and  deliver  the  same  to  a  con- 
necting line  or  lines  according  to  such  through  route,  and  it  shall  be  the  duty  of 
each  of  said  connecting  carriers  to  receive  said  property  and  transport  it  over 
the  said  line  or  lines  and  deliver  the  same  to  the  next  succeeding  carrier  or  con- 
signee according  to  the  routing  instructions  in  said  bill  of  lading :  Provided, 
however,  That  the  shipper  shall  in  all  instances  have  the  right  to  determine, 
where  competing  lines  of  railroad  constitute  portions  of  a  through  line  or  route, 
over  which  of  said  competing  lines  so  constituting  a  portion  of  said  through 
line  or  route  his  freight  shall  be  transported. 

It  shall  be  unlawful  for  any  common  carrier  subject  to  the  provisions  of  this 
Act,  or  any  officer,  agent,  or  employee  of  such  common  carrier,  or  for  any  other 
person  or  corporation  lawfully  authorized  by  such  common  carrier  to  receive  in- 
formation therefrom,  knowingly  to  disclose  to  or  permit  to  be  acquired  by  any 
person  or  corporation  other  than  the  shipper  or  consignee,  without  the 
consent  of  such  shipper  or  consignee,  any  information  concerning  the 
nature,  kind,  quantity,  destination,  consignee,  or  routing  of  any  property 
tendered  or  delivered  to  such  common  carrier  for  interstate  transportation, 
which  information  may  be  used  to  the  detriment  or  prejudice  of  such  shipper  or 
consignee,  or  which  may  improperly  disclose  his  business  transactions  to  a  com- 
petitor ;  and  it  shall  also  be  unlawful  for  any  person  or  corporation  to  solicit  or 
knowingly  receive  any  such  information  which  may  be  so  used  :  Provided,  That 
nothing  in  this  Act  shall  be  construed  to  prevent  the  giving  of  such  information 
in  response  to  any  legal  process  issued  under  the  authority  of  any  state  or  federal 
court,  or  to  any  officer  or  agent  of  the  Government  of  the  United  States,  or  of 
any  State  or  Territory,  in  the  exercise  of  his  powers,  or  to  any  officer  or  other 
duly  authorized  person  seeking  such  information  for  the  prosecution  of  persons 
charged  with  or  suspected  of  crime ;  or  information  given  by  a  common  carrier 
to  another  carrier  or  its  duly  authorized  agent,  for  the  purpose  of  adjusting 
mutual  traffic  accounts  in  the  ordinary  course  of  business  of  such  carriers. 

Any  person,  corporation,  or  association  violating  any  of  the  provisions  of  the 
next  preceding  paragraph  of  this  section  shall  be  deemed  guilty  of  a  misde- 
meanor, and  for  each  offense,  on  conviction,  shall  pay  to  the  United  States  a 
penalty  of  not  more  than  one  thousand  dollars. 

If  the  owner  of  property  transported  under  this  Act  directly  or  indirectly 
renders  any  service  connected  with  such  transportation,  or  furnishes  any  instru- 
mentality used  therein,  the  charge  and  allowance  therefor  shall  be  no  more  than 
is  just  and  reasonable,  and  the  Commission  may,  after  hearing  on  a  complaint 
or  on  its  own  initiative,  determine  what  is  a  reasonable  charge  as  the  maximum 
to  be  paid  by  the  carrier  or  carriers  for  the  services  so  rendered  or  for  the  use 
of  the  instrumentality  so  furnished,  and  fix  the  same  by  appropriate  order,  which 
order  shall  have  the  same  force  and  effect  and  be  enforced  in  like  manner  as  the 
orders  above  provided  for  under  this  section. 

The  foregoing  enumeration  of  powers  shall  not  exclude  any  power  which  the 
Commission  would  otherwise  have  in  the  making  of  an  order  under  the  provi- 
sions of  this  Act. 

Sec.  16.  (Amended  March  2, 1889,  June  29,  1906,  and  June  18, 1910.)  That 
if,  after  hearing  on  a  complaint  made  as  provided  in  section  thirteen  of  this  Act, 
the  Commission  shall  determine  that  any  party  complainant  is  entitled  to  an 
award  of  damages  under  the  provisions  of  this  Act  for  a  violation  thereof,  the 
Commission  shall  make  an  order  directing  the  carrier  to  pay  to  the  complainant 
the  sum  to  which  he  is  entitled  on  or  before  a  day  named. 


APPENDIX.  1107 

If  a  carrier  does  not  comply  with  an  order  for  the  payment  of  money  within 
the  time  limit  in  such  order,  the  complainant,  or  any  person  for  whose  benefit 
such  order  was  made,  may  file  in  the  circuit  court  of  the  United  States  for  the 
district  in  which  he  resides  or  in  which  is  located  the  principal  operating  office 
of  the  carrier,  or  through  which  the  road  of  the  carrier  runs,  or  in  any  state 
court  of  general  jurisdiction  having  jurisdiction  of  the  parties,  a  petition  setting 
forth  briefly  the  causes  for  which  he  claims  damages,  and  the  order  of  the  Com- 
mission in  the  premises.  Such  suit  in  the  circuit  court  of  the  United  States  shall 
proceed  in  all  respects  like  other  civil  suits  for  damages,  except  that  on  the  trial 
of  such  suit  the  findings  and  order  of  the  Commission  shall  be  prima  facie  evi- 
dence of  the  facts  therein  stated,  and  except  that  the  petitioner  shall  not  be 
liable  for  costs  in  the  circuit  court  nor  for  costs  at  any  subsequent  stage  of  the 
proceedings  unless  they  accrue  upon  his  appeal.  If  the  petitioner  shall  finally 
prevail  he  shall  be  allowed  a  reasonable  attorney's  fee,  to  be  taxed  and  collected 
as  a  part  of  the  costs  of  the  suit.  All  complaints  for  the  recovery  of  damages 
shall  be  filed  with  the  Commission  within  two  years  from  the  time  the  cause  of 
action  accrues,  and  not  after,  and  a  petition  for  the  enforcement  of  an  order  for 
the  payment  of  money  shall  be  filed  in  the  circuit  court  or  state  court  within 
one  year  from  the  date  of  the  order,  and  not  after. 

In  such  suits  all  parties  in  whose  favor  the  Commission  may  have  made  an 
award  for  damages  by  a  single  order  may  be  joined  as  plaintiffs,  and  all  of  the 
carriers  parties  to  such  order  awarding  such  damages  may  be  joined  as  defend- 
ants, and  such  suit  may  be  maintained  by  such  joint  plaintiffs  and  against  such 
joint  defendants  in  any  district  where  any  one  of  such  joint  plaintiffs  could  main- 
tain such  suit  against  any  one  of  such  joint  defendants ;  and  service  of  process 
against  any  one  of  such  defendants  as  may  not  be  found  in  the  district  where  the 
suit  is  brought  may  be  made  in  any  district  where  such  defendant  carrier  has  its 
principal  operating  office.  In  case  of  such  joint  suit  the  recovery,  if  any,  may  be 
by  judgment  in  favor  of  any  one  of  such  plaintiffs,  against  the  defendant  found 
to  be  liable  to  such  plaintiff. 

Every  order  of  the  Commission  shall  be  forthwith  served  upon  the  designated 
agent  of  the  carrier  in  the  city  of  Washington  or  in  such  other  manner  as  may  be 
provided  by  law. 

The  Commission  shall  be  authorized  to  suspend  or  modify  its  orders  upon  such 
notice  and  in  such  manner  as  it  shall  deem  proper. 

It  shall  be  the  duty  of  every  common  carrier,  its  agents  and  employees,  to 
observe  and  comply  with  such  orders  so  long  as  the  same  shall  remain  in  effect. 

Any  carrier,  any  officer,  representative,  or  agent  of  a  carrier,  or  any  receiver, 
trustee,  lessee,  or  agent  of  either  of  them,  who  knowingly  fails  or  neglects  to  obey 
any  order  made  under  the  provisions  of  section  fifteen  of  this  Act  shall  forfeit 
to  the  United  States  the  sum  of  five  thousand  dollars  for  each  offense.  Every 
distinct  violation  shall  be  a  separate  offense,  and  in  case  of  a  continuing  viola- 
tion each  day  shall  be  deemed  a  separate  offense. 

The  forfeiture  provided  for  in  this  Act  shall  be  payable  into  the  Treasury  of  the 
United  States,  and  shall  be  recoverable  in  a  civil  suit  in  the  name  of  the  United 
States,  brought  in  the  district  where  the  carrier  has  its  principal  operating  office, 
or  in  any  district  through  which  the  road  of  the  carrier  runs. 

It  shall  be  the  duty  of  the  various  district  attorneys,  under  the  direction  of 
the  Attorney  General  of  the  United  States,  to  prosecute  for  the  recovery  of  for- 
feitures. The  costs  and  expenses  of  such  prosecution  shall  be  paid  out  of  the 
appropriation  for  the  expenses  of  the  courts  of  the  United  States. 


HOS  APPENDIX. 

The  Commission  may  employ  such  attorneys  as  it  finds  necessary  for  proper 
legal  aid  and  service  of  the  Commission  or  its  members  in  the  conduct  of  their 
work  or  for  proper  representation  of  the  public  interests  in  investigations  made 
by  it  or  cases  or  proceedings  pending  before  it,  whether  at  the  Commission's 
own  instance  or  upon  complaint,  or  to  appear  for  and  represent  the  Commission 
in  any  case  pending  in  the  Commerce  Court ;  and  the  expenses  of  such  employ- 
ment shall  be  paid  out  of  the  appropriation  for  the  Commission. 

If  any  carrier  fails  or  neglects  to  obey  any  order  of  the  Commission  other  than 
for  the  payment  of  money,  while  the  same  is  in  effect,  the  Interstate  Commerce 
Commission  or  any  party  injured  thereby,  or  the  United  States,  by  its  Attorney 
General,  may  apply  to  the  Commerce  Court  for  the  enforcement  of  such  order. 
If,  after  hearing,  that  Court  determines  that  the  order  was  regularly  made  and 
duly  served,  and  that  the  carrier  is  in  disobedience  of  the  same,  the  Court  shall 
enforce  obedience  to  such  order  by  a  writ  of  injunction  or  other  proper  process, 
mandatory  or  otherwise,  to  restrain  such  carrier,  its  officers,  agents,  or  represen- 
tatives, from  further  disobedience  of  such  order,  or  to  enjoin  upon  it  or  them 
obedience  to  the  same. 

The  copies  of  schedules  and  classifications  and  tariffs  of  rates,  fares,  and 
charges,  and  of  all  contracts,  agreements,  and  arrangements  between  common 
carriers  filed  with  the  Commission  as  herein  provided,  and  the  statistics,  tables, 
and  figures  contained  in  the  annual  or  other  reports  of  carriers  made  to  the  Com- 
mission as  required  under  the  provisions  of  this  Act  shall  be  preserved  as  public 
records  in  the  custody  of  the  secretary  of  the  Commission,  and  shall  be  received 
as  prima  facie  evidence  of  what  they  purport  to  be  for  the  purpose  of  investiga- 
tions by  the  Commission  and  in  all  judicial  proceedings ;  and  copies  of  and  ex- 
tracts from  any  of  said  schedules,  classifications,  tariffs,  contracts,  agreements, 
arrangements,  or  reports,  made  public  records  as  aforesaid,  certified  by  the  sec- 
retary, under  the  Commission's  seal,  shall  be  received  in  evidence  with  like 
effect  as  the  originals. 

Sec.  16a.  (Added  June  29,  1906.)  That  after  a  decision,  order,  or  require- 
ment has  been  made  by  the  Commission  in  any  proceeding  any  party  thereto 
may  at  any  time  make  application  for  rehearing  of  the  same,  or  any  matter  de- 
termined therein,  and  it  shall  be  lawful  for  the  Commission  in  its  discretion  to 
grant  such  a  rehearing  if  sufficient  reason  therefor  be  made  to  appear.  Appli- 
cations for  rehearing  shall  be  governed  by  such  general  rules  as  the  Commission 
may  establish.  No  such  application,  shall  excuse  any  carrier  from  complying 
with  or  obeying  any  decision,  order,  or  requirement  of  the  Commission,  or  operate 
in  any  manner  to  stay  or  postpone  the  enforcement  thereof,  without  the  special 
order  of  the  Commission.  In  case  a  rehearing  is  granted  the  proceedings  there- 
upon shall  conform  as  nearly  as  may  be  to  the  proceedings  in  an  original  hearing, 
except  as  the  Commission  may  otherwise  direct ;  and  if,  in  its  judgment,  after 
such  rehearing  and  the  consideration  of  all  facts,  including  those  arising  since 
the  former  hearing,  it  shall  appear  that  the  original  decision,  order,  or  require- 
ment is  in  any  respect  unjust  or  unwarranted,  the  Commission  may  reverse, 
change,  or  modify  the  same  accordingly.  Any  decision,  order,  or  requirement 
made  after  such  rehearing,  reversing,  changing,  or  modifying  the  original  deter- 
mination shall  be  subject  to  the  same  provisions  as  an  original  order. 

Sec.  17.  {As  amended  March  2,  1889.)  That  the  Commission  may  conduct 
its  proceedings  in  such  manner  as  will  best  conduce  to  the  proper  dispatch  of 
business  and  to  the  ends  of  justice.  A  majority  of  the  Commission  shall  con- 
stitute a  quorum  for  the  transaction  of  business,  but  no  Commissioner  shall 


APPENDIX.  1109 

participate  in  any  hearing  or  proceeding  in  which  he  has  any  pecuniary  interest. 
Said  Commission  may,  from  time  to  time,  make  or  amend  such  general  rules  or 
orders  as  may  be  requisite  for  the  order  and  regulation  of  proceedings  before  it, 
including  forms  of  notices  and  the  service  thereof,  which  shall  conform,  as  nearly 
as  may  be,  to  those  in  use  in  the  courts  of  the  United  States.  Any  party  may  ap- 
pear before  said  Commission  and  be  heard,  in  person  or  by  attorney.  Every 
vote  and  official  act  of  the  Commission  shall  be  entered  of  record,  and  its  proceed- 
ings shall  be  public  upon  the  request  of  either  party  interested.  Said  Commis- 
sion shall  have  an  official  seal,  which  shall  be  judicially  noticed.  Either  of  the 
members  of  the  Commission  may  administer  oaths  and  affirmations  and  sign 
subpoenas. 

Sec.  18.  (As  amended  March  2,  1889.)  [See  section  24,  increasing  salaries 
of  Commissioners.}  That  each  Commissioner  shall  receive  an  annual  salary 
of  seven  thousand  five  hundred  dollars,  payable  in  the  same  manner  as  the  judges 
of  the  courts  of  the  United  States.  The  Commission  shall  appoint  a  secretary, 
who  shall  receive  an  annual  salary  of  three  thousand  five  hundred  dollars,1  pay- 
able in  like  manner.  The  Commission  shall  have  authority  to  employ  and  fix 
the  compensation  of  such  other  employees  as  it  may  find  necessary  to  the  proper 
performance  of  its  duties.  Until  otherwise  provided  by  law,  the  Commission 
may  hire  suitable  offices  for  its  use,  and  shall  have  authority  to  procure  all  nec- 
essary office  supplies.  Witnesses  summoned  before  the  Commission  shall  be  paid 
the  same  fees  and  mileage  that  are  paid  witnesses  in  the  courts  of  the  United 
States. 

All  of  the  expenses  of  the  Commission,  including  all  necessary  expenses  for 
transportation  incurred  by  the  Commissioners,  or  by  their  employees  under 
their  orders,  in  making  any  investigation,  or  upon  official  business  in  any  other 
places  than  in  the  city  of  Washington,  shall  be  allowed  and  paid  on  the  presenta- 
tion of  itemized  vouchers  therefor  approved  by  the  chairman  of  the  Commission. 

Sec.  19.  That  the  principal  office  of  the  Commission  shall  be  in  the  city  of 
Washington,  where  its  general  sessions  shall  be  held ;  but  whenever  the  con- 
venience of  the  public  or  the  parties  may  be  promoted,  or  delay  or  expense  pre- 
vented thereby,  the  Commission  may  hold  special  sessions  in  any  part  of  the 
United  States.  It  may,  by  one  or  more  of  the  Commissioners,  prosecute  any 
inquiry  necessary  to  its  duties,  in  any  part  of  the  United  States,  into  any  matter 
or  question  of  fact  pertaining  to  the  business  of  any  common  carrier  subject  to 
the  provisions  of  this  Act. 

Sec.  19a.  (Amendment  of  March  1,  1913.)  That  the  Commission  shall,  as 
hereinafter  provided,  investigate,  ascertain,  and  report  the  value  of  all  the 
property  owned  or  used  by  every  common  carrier  subject  to  the  provisions  of 
this  Act.  To  enable  the  Commission  to  make  such  investigation  and  report, 
it  is  authorized  to  employ  such  experts  and  other  assistants  as  may  be  necessary. 
The  Commission  may  appoint  examiners  who  shall  have  power  to  administer 
oaths,  examine  witnesses,  and  take  testimony.  The  Commission  shall  make  an 
inventory  which  shall  list  the  property  of  every  common  carrier  subject  to  the 
provisions  of  this  Act  in  detail;  and  show  the  value  thereof  as  hereinafter  pro- 
vided, and  shall  classify  the  physical  property,  as  nearly  as  practicable,  in  con- 
formity with  the  classification  of  expenditures  for  road  and  equipment,  as  pre- 
scribed by  the  Interstate  Commerce  Commission. 

First.     In  such  investigation  said  Commission  shall  ascertain  and  report  in 

1  Increased  to  $5,000  by  sundry  civil  act  of  March  4,  1907,  34  Stat.  L.,  1311. 


1110  APPENDIX. 

detail  as  to  each  p  iece  of  property  owned  or  used  by  said  common  carrier  for  its 
purposes  as  a  common  carrier,  the  original  cost  to  date,  the  cost  of  reproduction 
new,  the  cost  of  reproduction  less  depreciation,  and  an  analysis  of  the  methods 
by  which  these  several  costs  are  obtained,  and  the  reason  for  their  differences, 
if  any.  The  Commission  shall  in  like  manner  ascertain  and  report  separately 
other  values,  and  elements  of  value,  if  any,  of  the  property  of  such  common 
carrier,  and  an  analysis  of  the  methods  of  valuation  employed,  and  of  the  reasons 
for  any  differences  between  any  such  value,  and  each  of  the  foregoing  cost 
values. 

Second.  Such  investigation  and  report  shall  state  in  detail  and  separately 
from  improvements  the  original  cost  of  all  lands,  rights  of  way,  and  terminals 
owned  or  used  for  the  purposes  of  a  common  carrier,  and  ascertained  as  of  the 
time  of  dedication  to  public  use,  and  the  present  value  of  the  same,  and  sepa- 
rately the  original  and  present  cost  of  condemnation  and  damages  or  of  pur- 
chase in  excess  of  such  original  cost  or  present  value. 

Third.  Such  investigation  and  report  shall  show  separately  the  property  held 
for  purposes  other  than  those  of  a  common  carrier,  and  the  original  cost  and 
present  value  of  the  same,  together  with  an  analysis  of  the  methods  of  valuation 
employed. 

Fourth.  In  ascertaining  the  original  cost  to  date  of  the  property  of  such  com- 
mon carrier  the  Commission,  in  addition  to  such  other  elements  as  it  may  deem 
necessary,  shall  investigate  and  report  upon  the  history  and  organization  of  the 
present  and  of  any  previous  corporation  operating  such  property;  upon  any 
increases  or  decreases  of  stocks,  bonds,  or  other  securities,  in  any  reorganization ; 
upon  moneys  received  by  any  such  corporation  by  reason  of  any  issues  of  stocks, 
bonds,  or  other  securities ;  upon  the  syndicating,  banking,  and  other  financial 
arrangements  under  which  such  issues  were  made  and  the  expense  thereof ;  and 
upon  the  net  and  gross  earnings  of  such  corporations ;  and  shall  also  ascertain 
and  report  in  such  detail  as  may  be  determined  by  the  Commission  upon  the 
expenditure  of  all  moneys  and  the  purposes  for  which  the  same  were  expended. 

Fifth.  The  Commission  shall  ascertain  and  report  the  amount  and  value  of 
any  aid,  gift,  grant  of  right  of  way,  or  donation,  made  to  any  such  common  car- 
rier, or  to  any  previous  corporation  operating  such  property,  by  the  Government 
of  the  United  States  or  by  any  State,  county,  or  municipal  government,  or  by 
individuals,  associations,  or  corporations ;  and  it  shall  also  ascertain  and  report 
the  grants  of  land  to  any  such  common  carrier,  or  any  previous  corporation  oper- 
ating such  property,  by  the  Government  of  the  United  States,  or  by  any  State, 
county,  or  municipal  government,  and  the  amount  of  money  derived  from  the 
sale  of  any  portion  of  such  grants  and  the  value  of  the  unsold  portion  thereof 
at  the  time  acquired  and  at  the  present  time,  also,  the  amount  and  value  of  any 
concession  and  allowance  made  by  such  common  carrier  to  the  Government  of 
the  United  States,  or  to  any  State,  county,  or  municipal  government  in  consid- 
eration of  such  aid,  gift,  grant,  or  donation. 

Except  as  herein  otherwise  provided,  the  Commission  shall  have  power  to 
prescribe  the  method  of  procedure  to  be  followed  in  the  conduct  of  the  investi- 
gation, the  form  in  which  the  results  of  the  valuation  shall  be  submitted,  and  the 
classification  of  the  elements  that  constitute  the  ascertained  value,  and  such 
investigation  shall  show  the  value  of  the  property  of  every  common  carrier  as  a 
whole  and  separately  the  value  of  its  property  in  each  of  the  several  States  and 
Territories  and  the  District  of  Columbia,  classified  and  in  detail  as  herein 
required. 


APPENDIX.  1111 

Such  investigation  shall  be  commenced  within  sixty  days  after  the  approval 
of  this  Act  and  shall  be  prosecuted  with  diligence  and  thoroughness,  and  the 
result  thereof  reported  to  Congress  at  the  beginning  of  each  regular  session  there- 
after until  completed. 

Every  common  carrier  subject  to  the  provisions  of  this  Act  shall  furnish  to 
the  Commission  or  its  agents  from  time  to  time  and  as  the  Commission  may  re- 
quire maps,  profiles,  contracts,  reports  of  engineers,  and  any  other  documents, 
records,  and  papers,  or  copies  of  any  or  all  of  the  same,  in  aid  of  such  investiga- 
tion and  determination  of  the  value  of  the  property  of  said  common  carrier,  and 
shall  grant  to  all  agents  of  the  Commission  free  access  to  its  right  of  way,  its 
property,  and  its  accounts,  records,  and  memoranda  whenever  and  wherever  re- 
quested by  any  such  duly  authorized  agent,  and  every  common  carrier  is  hereby 
directed  and  required  to  cooperate  with  and  aid  the  Commission  in  the  work  of 
the  valuation  of  its  property  in  such  further  particulars  and  to  such  extent  as 
the  Commission  may  require  and  direct,  and  all  rules  and  regulations  made  by 
the  Commission  for  the  purpose  of  administering  the  provisions  of  this  section 
and  section  twenty  of  this  Act  shall  have  the  full  force  and  effect  of  law.  Unless 
otherwise  ordered  by  the  Commission,  with  the  reasons  therefor,  the  records  and 
data  of  the  Commission  shall  be  open  to  the  inspection  and  examination  of  the 
public. 

Upon  the  completion  of  the  valuation  herein  provided  for  the  Commission  shall 
thereafter  in  like  manner  keep  itself  informed  of  all  extensions  and  improvements 
or  other  changes  in  the  condition  and  value  of  the  property  of  all  common  carriers, 
and  shall  ascertain  the  value  thereof,  and  shall  from  time  to  time,  revise  and  cor- 
rect its  valuations,  showing  such  revision  and  correction  classified  and  as  a  whole 
and  separately  in  each  of  the  several  States  and  Territories  and  the  District  of 
Columbia,  which  valuations,  both  original  and  corrected,  shall  be  tentative 
valuations  and  shall  be  reported  to  Congress  at  the  beginning  of  each  regular 
session. 

To  enable  the  Commission  to  make  such  changes  and  corrections  in  its  valua- 
tions of  each  class  of  property,  every  common  carrier  subject  to  the  provisions  of 
this  Act  shall  make  such  reports  and  furnish  such  information  as  the  Commission 
may  require. 

Whenever  the  Commission  shall  have  completed  the  tentative  valuation  of  the 
property  of  any  common  carrier,  as  herein  directed,  and  before  such  valuation 
shall  become  final,  the  Commission  shall  give  notice  by  registered  letter  to  the 
said  carrier,  the  Attorney  General  of  the  United  States,  the  governor  of  any 
State  in  which  the  property  so  valued  is  located,  and  to  such  additional  parties 
as  the  Commission  may  prescribe,  stating  the  valuation  placed  upon  the  several 
classes  of  property  of  said  carrier,  and  shall  allow  thirty  days  in  which  to  file  a 
protest  of  the  same  with  the  Commission.  If  no  protest  is  filed  within  thirty 
days,  said  valuation  shall  become  final  as  of  the  date  thereof. 

If  notice  of  protest  is  filed  the  Commission  shall  fix  a  time  for  hearing  the  same, 
and  shall  proceed  as  promptly  as  may  be  to  hear  and  consider  any  matter  rela- 
tive and  material  thereto  which  may  be  presented  in  support  of  any  such  pro- 
test so  filed  as  aforesaid.  If  after  hearing  any  protest  of  such  tentative  valua- 
tion under  the  provisions  of  this  Act  the  Commission  shall  be  of  the  opinion  that 
its  valuation  should  not  become  final,  it  shall  make  such  changes  as  may  be 
necessary,  and  shall  issue  an  order  making  such  corrected  tentative  valuation 
final  as  of  the  date  thereof.  All  final  valuations  by  the  Commission  and  the 
classification  thereof  shall  be  published  and  shall  be  prima  facie  evidence  of  the 


1112  APPENDIX. 

value  of  the  property  in  all  proceedings  under  the  Act  to  regulate  commerce  as  of 
the  date  of  the  fixing  thereof,  and  in  all  judicial  proceedings  for  the  enforcement 
of  the  Act  approved  February  fourth,  eighteen  hundred  and  eighty-seven,  com- 
monly known  as  "the  Act  to  regulate  commerce,"  and  the  various  Acts  amenda- 
tory thereof,  and  in  all  judicial  proceedings  brought  to  enjoin,  set  aside,  annul, 
or  suspend,  in  whole  or  in  part,  any  order  of  the  Interstate  Commerce  Commis- 
sion. 

If  upon  the  trial  of  any  action  involving  a  final  value  fixed  by  the  Commission, 
evidence  shall  be  introduced  regarding  such  value  which  is  found  by  the  court 
to  be  different  from  that  offered  upon  the  hearing  before  the  Commission,  or 
additional  thereto  and  substantially  affecting  said  value,  the  court,  before  pro- 
ceeding to  render  judgment  shall  transmit  a  copy  of  such  evidence  to  the  Com- 
mission, and  shall  stay  further  proceedings  in  said  action  for  such  time  as  the 
court  shall  determine  from  the  date  of  such  transmission.  Upon  the  receipt 
of  such  evidence  the  Commission  shall  consider  the  same  and  may  fix  a  final 
value  different  from  the  one  fixed  in  the  first  instance,  and  may  alter,  modify, 
amend  or  rescind  any  order  which  it  has  made  involving  said  final  value,  and  shall 
report  its  action  thereon  to  said  court  within  the  time  fixed  by  the  court.  If 
the  Commission  shall  alter,  modify,  or  amend  its  order,  such  altered,  modified, 
or  amended  order  shall  take  the  place  of  the  original  order  complained  of  and 
judgment  shall  be  rendered  thereon  as  though  made  by  the  Commission  in  the 
first  instance.  If  the  original  order  shall  not  be  rescinded  or  changed  by  the 
Commission,  judgment  shall  be  rendered  upon  such  original  order. 

The  provisions  of  this  section  shall  apply  to  receivers  of  carriers  and  operating 
trustees.  In  case  of  failure  or  refusal  on  the  part  of  any  carrier,  receiver,  or 
trustee  to  comply  with  all  the  requirements  of  this  section  and  in  the  manner 
prescribed  by  the  Commission  such  carrier,  receiver,  or  trustee  shall  forfeit  to 
the  United  States  the  sum  of  five  hundred  dollars  for  each  such  offense  and  for 
each  and  every  day  of  the  continuance  of  such  offense,  such  forfeitures  to  be  re- 
coverable in  the  same  manner  as  other  forfeitures  provided  for  in  section  sixteen 
of  the  Act  to  regulate  commerce. 

That  the  district  courts  of  the  United  States  shall  have  jurisdiction,  upon  the 
application  of  the  Attorney  General  of  the  United  States  at  the  request  of  the 
Commission,  alleging  a  failure  to  comply  with  or  a  violation  of  any  of  the  provi- 
sions of  this  section  by  any  common  carrier,  to  issue  a  writ  or  writs  of  mandamus 
commanding  such  common  carrier  to  comply  with  the  provisions  of  this  section. 

Sec.  20.  (As  amended  June  29,  1906,  February  25,  1909,  and  June  18,  1910.) 
That  the  Commission  is  hereby  authorized  to  require  annual  reports  from  all 
common  carriers  subject  to  the  provisions  of  this  Act,  and  from  the  owners  of  all 
railroads  engaged  in  interstate  commerce  as  defined  in  this  Act,  to  prescribe  the 
manner  in  which  such  reports  shall  be  made,  and  to  require  from  such  carriers 
specific  answers  to  all  questions  upon  which  the  Commission  may  need  informa- 
tion. Such  annual  reports  shall  show  in  detail  the  amount  of  capital  stock  issued, 
the  amounts  paid  therefor,  and  the  manner  of  payment  for  the  same ;  the  divi- 
dends paid,  the  surplus  fund,  if  any,  and  the  number  of  stockholders ;  the  funded 
and  floating  debts  and  the  interest  paid  thereon ;  the  cost  and  value  of  the  carrier's 
property,  franchises,  and  equipments ;  the  number  of  employees  and  the  salaries 
paid  each  class;  the  accidents  to  passengers,  employees,  and  other  persons, 
and  the  causes  thereof;  the  amounts  expended  for  improvements  each  year, 
how  expended,  and  the  character  of  such  improvements ;  the  earnings  and  re- 
ceipts from  each  branch  of  business  and  from  all  sources ;  the  operating  and  other 


APPENDIX.  1113 

expenses ;  the  balances  of  profit  and  loss ;  and  a  complete  exhibit  of  the  financial 
operations  of  the  carrier  each  year,  including  an  annual  balance  sheet.  Such 
reports  shall  also  contain  such  information  in  relation  to  rates  or  regulations 
concerning  fares  or  freights,  or  agreements,  arrangements,  or  contracts  affecting 
the  same  as  the  Commission  may  require ;  and  the  Commission  may,  in  its  dis- 
cretion, for  the  purpose  of  enabling  it  the  better  to  carry  out  the  purposes  of 
this  Act,  prescribe  a  period  of  time  within  which  all  common  carriers  subject  to 
the  provisions  of  this  Act  shall  have,  as  near  as  may  be,  a  uniform  system  of 
accounts,  and  the  manner  in  winch  such  accounts  shall  be  kept. 

Said  detailed  reports  shall  contain  all  the  required  statistics  for  the  period 
of  twelve  months  ending  on  the  thirtieth  day  of  June  in  each  year,  or  on  the 
thirty-first  day  of  December  in  each  year  if  the  Commissioner  by  order  substitute 
that  period  for  the  year  ending  June  thirtieth,  and  shall  be  made  out  under  oath 
and  filed  with  the  Commission  at  its  office  in  Washington  within  three  months 
after  the  close  of  the  year  for  which  the  report  is  made,  unless  additional  time 
be  granted  in  any  case  by  the  Commission ;  and  if  any  carrier,  person,  or  cor- 
poration subject  to  the  provisions  of  this  Act  shall  fail  to  make  and  file  said 
annual  reports  within  the  time  above  specified,  or  within  the  time  extended  by 
the  Commission,  for  making  and  filing  the  same,  or  shall  fail  to  make  specific 
answer  to  any  question  authorized  by  the  provisions  of  this  section  within  thirty 
days  from  the  time  it  is  lawfully  required  so  to  do,  such  party  shall  forfeit  to  the 
United  States  the  sum  of  one  hundred  dollars  for  each  and  every  day  it  shall 
continue  to  be  in  default  with  respect  thereto.  The  Commission  shall  also  have 
authority  by  general  or  special  orders  to  require  said  carriers,  or  any  of  them,  to 
file  monthly  reports  of  earnings  and  expenses,  and  to  file  periodical  or  special, 
or  both  periodical  and  special,  reports  concerning  any  matters  about  which  the 
Commission  is  authorized  or  required  by  this  or  any  other  law  to  inquire  or  to 
keep  itself  informed  or  which  it  is  required  to  enforce ;  and  such  periodical  or 
special  reports  shall  be  under  oath  whenever  the  Commission  so  requires ;  and 
if  any  such  carrier  shall  fail  to  make  and  file  any  such  periodical  or  special  report 
within  the  time  fixed  by  the  Commission,  it  shall  be  subject  to  the  forfeitures  last 
above  provided. 

Said  forfeitures  shall  be  recovered  in  the  manner  provided  for  the  recovery  of 
forfeitures  under  the  provisions  of  this  Act. 

The  oath  required  by  this  section  may  be  taken  before  any  person  authorized 
to  administer  an  oath  by  the  laws  of  the  State  in  which  the  same  is  taken. 

The  Commission  may,  in  its  discretion,  prescribe  the  forms  of  any  and  all 
accounts,  records,  and  memoranda  to  be  kept  by  carriers  subject  to  the  provisions 
of  this  Act,  including  the  accounts,  records,  and  memoranda  of  the  movement 
of  traffic  as  well  as  the  receipts  and  expenditures  of  moneys.  The  Commission 
shall  at  all  times  have  access  to  all  accounts,  records,  and  memoranda  kept  by 
carriers  subject  to  this  Act,  and  it  shall  be  unlawful  for  such  carriers  to  keep  any 
other  accounts,  records,  or  memoranda  than  those  prescribed  or  approved  by 
the  Commission,  and  it  may  employ  special  agents  or  examiners,  who  shall  have 
authority  under  the  order  of  the  Commission  to  inspect  and  examine  any  and 
all  accounts,  records,  and  memoranda  kept  by  such  carriers.  This  provision 
shall  apply  to  receivers  of  carriers  and  operating  trustees. 

In  case  of  failure  or  refusal  on  the  part  of  any  such  carrier,  receiver,  or  trustee 
to  keep  such  accounts,  records,  and  memoranda  on  the  books  and  in  the  manner 
prescribed  by  the  Commission,  or  to  submit  such  accounts,  records,  and  memo- 
randa as  are  kept  to  the  inspection  of  the  Commission  or  any  of  its  authorized 


1114  APPENDIX. 

agents  or  examiners,  such  carrier,  receiver,  or  trustee  shall  forfeit  to  the  United 
States  the  sum  of  five  hundred  dollars  for  each  such  offense  and  for  each  and 
every  day  of  the  continuance  of  such  offense,  such  forfeitures  to  be  recoverable 
in  the  same  manner  as  other  forfeitures  provided  for  in  this  Act. 

Any  person  who  shall  willfully  make  any  false  entry  in  the  accounts  of  any 
book  of  accounts  or  in  any  record  or  memoranda  kept  by  a  carrier,  or  who  shall 
willfully  destroy,  mutilate,  alter,  or  by  any  other  means  or  device  falsify  the 
record  of  any  such  account,  record,  or  memoranda,  or  who  shall  willfully  neglect 
or  fail  to  make  full,  true,  and  correct  entries  in  such  accounts,  records,  or  memo- 
randa of  all  facts  and  transactions  appertaining  to  the  carrier's  business,  or  shall 
keep  any  other  accounts,  records,  or  memoranda  than  those  prescribed  or  ap- 
proved by  the  Commission,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
be  subject,  upon  conviction  in  any  court  of  the  United  States  of  competent  juris- 
diction, to  a  fine  of  not  less  than  one  thousand  dollars  nor  more  than  five  thou- 
sand dollars  or  imprisonment  for  a  term  not  less  than  one  year  nor  more  than 
three  years,  or  both  such  fine  and  imprisonment :  (Amendment  of  February  25, 
1909.)  Provided,  That  the  Commission  may  in  its  discretion  issue  orders  speci- 
fying such  operating,  accounting,  or  financial  papers,  records,  books,  blanks, 
tickets,  stubs,  or  documents  of  carriers  which  may,  after  a  reasonable  time,  be 
destroyed,  and  prescribing  the  length  of  time  such  books,  papers,  or  documents 
shall  be  preserved. 

Any  examiner  who  divulges  any  fact  or  information  which  may  come  to  his 
knowledge  during  the  course  of  such  examination,  except  in  so  far  as  he  may  be 
directed  by  the  Commission  or  by  a  court  or  judge  thereof,  shall  be  subject, 
upon  conviction  in  any  court  of  the  United  States  of  competent  jurisdiction,  to  a 
fine  of  not  more  than  five  thousand  dollars  or  imprisonment  for  a  term  not  ex- 
ceeding two  years,  or  both. 

That  the  circuit  and  district  courts  of  the  United  States  shall  have  jurisdiction, 
upon  the  application  of  the  Attorney  General  of  the  United  States  at  the  request 
of  the  Commission,  alleging  a  failure  to  comply  with  or  a  violation  of  any  of  the 
provisions  of  said  Act  to  regulate  commerce  or  of  any  Act  supplementary  thereto 
or  amendatory  thereof  by  any  common  carrier,  to  issue  a  writ  or  writs  of  man- 
damus commanding  such  common  carrier  to  comply  with  the  provisions  of  said 
Acts,  or  any  of  them. 

And  to  carry  out  and  give  effect  to  the  provisions  of  said  Acts,  or  any  of  them, 
the  Commission  is  hereby  authorized  to  employ  special  agents  or  examiners  who 
shall  have  power  to  administer  oaths,  examine  witnesses,  and  receive  evidence. 
That  any  common  carrier,  railroad,  or  transportation  company  receiving 
property  for  transportation  from  a  point  in  one  State  to  a  point  in  another  State 
shall  issue  a  receipt  or  bill  of  lading  therefor  and  shall  be  liable  to  the  lawful 
holder  thereof  for  any  loss,  damage,  or  injury  to  such  property  caused  by  it  or 
by  any  common  carrier,  railroad,  or  transportation  company  to  which  such 
property  may  be  delivered  or  over  whose  line  or  lines  such  property  may  pass, 
and  no  contract,  receipt,  rule,  or  regulation  shall  exempt  such  common  carrier, 
railroad,  or  transportation  company  from  the  liability  hereby  imposed:  Pro- 
vided, That  nothing  in  this  section  shall  deprive  any  holder  of  such  receipt  or 
bill  of  lading  of  any  remedy  or  right  of  action  which  he  has  under  existing  law. 
That  the  common  carrier,  railroad,  or  transportation  company  issuing  such 
receipt  or  bill  of  lading  shall  be  entitled  to  recover  from  the  common  carrier, 
railroad,  or  transportation  company  on  whose  line  the  loss,  damage,  or  injury 
shall  have  been  sustained  the  amount  of  such  loss,  damage,  or  injury  as  it  may  be 


APPENDIX.  1H5 

required  to  pay  to  the  owners  of  such  property,  as  may  be  evidenced  by  any 
receipt,  judgment,  or  transcript  thereof. 

Sec.  21.  04s  amended  March  2,  1889.)  That  the  Commission  shall,  on  or 
before  the  first  day  of  December  in  each  year,  make  a  report,  which  shall  be 
transmitted  to  Congress,  and  copies  of  which  shall  be  distributed  as  are  the  other 
reports  transmitted  to  Congress.  This  report  shall  contain  such  information 
and  data  collected  by  the  Commission  as  may  be  considered  of  value  in  the  deter- 
mination of  questions  connected  with  the  regulation  of  commerce  together  with 
such  recommendations  as  to  additional  legislation  relating  thereto  as  the  Com- 
mission may  deem  necessary ;  and  the  names  and  compensation  of  the  persons 
employed  by  said  Commission. 

Sec.  22.     (As  amended  March  2,  1889,  and  February  8,  1895.)     [See  section  1, 
5th  par.]     That  nothing  in  this  Act  shall  prevent  the  carriage,  storage,  or  hand- 
ling of  property  free  or  at  reduced  rates  for  the  United  States,  State,  or  municipal 
governments,  or  for  charitable  purposes,  or  to  or  from  fairs  and  expositions  for 
exhibition  thereat,  or  the  free  carriage  of  destitute  and  homeless  persons  trans- 
ported by  charitable  societies,  and  the  necessary  agents  employed  in  such  trans- 
portation, or  the  issuance  of  mileage,  excursion,  or  commutation  passenger 
tickets ;  nothing  in  this  Act  shall  be  construed  to  prohibit  any  common  carrier 
from  giving  reduced  rates  to  ministers  of  religion,  or  to  municipal  governments 
for  the  transportation  of  indigent  persons,  or  to  inmates  of  the  National  Homes 
or  State  Homes  for  Disabled  Volunteer  Soldiers,  and  of  Soldiers'  and  Sailors' 
Orphan  Homes,  including  those  about  to  enter  and  those  returning  home  after 
discharge,  under  arrangements  with  the  boards  of  managers  of  said  homes; 
nothing  in  this  Act  shall  be  construed  to  prevent  railroads  from  giving  free  car- 
riage to  their  own  officers  and  employees,  or  to  prevent  the  principal  officers  of 
any  railroad  company  or  companies  from  exchanging  passes  or  tickets  with  other 
railroad  companies  for  their  officers  and  employees;    and  nothing  in  this  Act 
contained  shall  in  any  way  abridge  or  alter  the  remedies  now  existing  at  common 
law  or  by  statute,  but  the  provisions  of  this  Act  are  in  addition  to  such  remedies  : 
Provided,  That  no  pending  litigation  shall  in  any  way  be  affected  by  this  Act : 
Provided  further,  That  nothing  in  this  Act  shall  prevent  the  issuance  of  joint 
interchangeable  five-thousand-mile  tickets,  with  special  privileges  as  to  the 
amount  of  free  baggage  that  may  be  carried  under  mileage  tickets  of  one  thou- 
sand or  more  miles.     But  before  any  common  carrier,  subject  to  the  provisions 
of  this  Act,  shall  issue  any  such  joint  interchangeable  mileage  tickets  with  special 
privileges,  as  aforesaid,  it  shall  file  with  the  Interstate  Commerce  Commission 
copies  of  the  joint  tariffs  of  rates,  fares,  or  charges  on  which  such  joint  inter- 
changeable mileage  tickets  are  to  be  based,  together  with  specifications  of  the 
amount  of  free  baggage  permitted  to  be  carried  under  such  tickets,  in  the  same 
manner  as  common  carriers  are  required  to  do  with  regard  to  other  joint  rates 
by  section  six  of  this  Act ;   and  all  the  provisions  of  said  section  six  relating  to 
joint  rates,  fares,  and  charges  shall  be  observed  by  said  common  carriers  and 
enforced  by  the  Interstate  Commerce  Commission  as  fully  with  regard  to  such 
joint  interchangeable  mileage  tickets  as  with  regard  to  other  joint  rates,  fares, 
and  charges  referred  to  in  said  section  six.     It  shall  be  unlawful  for  any  common 
carrier  that  has  issued  or  authorized  to  be  issued  any  such  joint  interchangeable 
mileage  tickets  to  demand,  collect,  or  receive  from  any  person  or  persons  a  greater 
or  less  compensation  for  transportation  of  persons  or  baggage  under  such  joint 
interchangeable  mileage  tickets  than  that  required  by  the  rate,  fare,  or  charge 
specified  in  the  copies  of  the  joint  tariff  of  rates,  fares,  or  charges  filed  with  the 


1116  APPENDIX. 

Commission  in  force  at  the  time.     The  provisions  of  section  ten  of  this  Act 
shall  apply  to  any  violation  of  the  requirements  of  this  proviso. 

Sec.  23.  (Added  March  2,  1889.)  That  the  circuit  and  district  courts  of 
the  United  States  shall  have  jurisdiction  upon  the  relation  of  any  person  or 
persons,  firm,  or  corporation,  alleging  such  violation  by  a  common  carrier,  of 
any  of  the  provisions  of  the  Act  to  which  this  is  a  supplement  and  all  Acts 
amendatory  thereof,  as  prevents  the  relator  from  having  interstate  traffic  moved 
by  said  common  carrier  at  the  same  rates  as  are  charged,  or  upon  terms  or  condi- 
tions as  favorable  as  those  given  by  said  common  carrier  for  like  traffic  under 
similar  conditions  to  any  other  shipper,  to  issue  a  writ  or  writs  of  mandamus 
against  said  common  carrier,  commanding  such  common  carrier  to  move  and 
transport  the  traffic,  or  to  furnish  cars  or  other  facilities  for  transportation  for  the 
party  applying  for  the  writ :  Provided,  That  if  any  question  of  fact  as  to  the 
proper  compensation  to  the  common  carrier  for  the  service  to  be  enforced  by  the 
writ  is  raised  by  the  pleadings,  the  writ  of  peremptory  mandamus  may  issue, 
notwithstanding  such  question  of  fact  is  undetermined,  upon  such  terms  as  to 
security,  payment  of  money  into  the  court,  or  otherwise,  as  the  court  may  think 
proper,  pending  the  determination  of  the  question  of  fact :  Provided,  That  the 
remedy  hereby  given  by  writ  of  mandamus  shall  be  cumulative,  and  shall  not  be 
held  to  exclude  or  Interfere  with  other  remedies  provided  by  this  Act  or  the  Act 
to  which  it  is  a  supplement. 

Sec.  24.  (Added  June  29,  1906.)  That  the  Interstate  Commerce  Commis- 
sion is  hereby  enlarged  so  as  to  consist  of  seven  members  with  terms  of  seven 
years,  and  each  shall  receive  ten  thousand  dollars  compensation  annually. 
The  qualifications  of  the  Commissioners  and  the  manner  of  the  payment  of  their 
salaries  shall  be  as  already  provided  by  law.  Such  enlargement  of  the  Commis- 
sion shall  be  accomplished  through  appointment  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  of  two  additional  Interstate  Commerce 
Commissioners,  one  for  a  term  expiring  December  thirty-first,  nineteen  hundred 
and  eleven,  one  for  a  term  expiring  December  thirty-first,  nineteen  hundred  and 
twelve.  The  terms  of  the  present  Commissioners,  or  of  any  successor  appointed 
to  fill  a  vacancy  caused  by  the  death  or  resignation  of  any  of  the  present  Com- 
missioners, shall  expire  as  heretofore  provided  by  law.  Their  successors  and  the 
successors  of  the  additional  Commissioners  herein  provided  for  shall  be  ap- 
pointed for  the  full  term  of  seven  years,  except  that  any  person  appointed  to  fill 
a  vacancy  shall  be  appointed  only  for  the  unexpired  term  of  the  Commissioner 
whom  he  shall  succeed.  Not  more  than  four  Commissioners  shall  be  appointed 
from  the  same  political  party. 

(Additional  provisions  in  Act  of  June  29,  1906.)  (Sec.  9.)  That  all  existing 
laws  relating  to  the  attendance  of  witnesses  and  the  production  of  evidence  and 
the  compelling  of  testimony  under  the  Act  to  regulate  commerce  and  all  Acts 
amendatory  thereof  shall  apply  to  any  and  all  proceedings  and  hearings  under 
this  Act. 

(Sec.  10.)  That  all  laws  and  parts  of  laws  in  conflict  with  the  provisions  of 
this  Act  are  hereby  repealed  ;  but  the  amendments  herein  provided  for  shall  not 
affect  causes  now  pending  in  courts  of  the  United  States,  but  such  causes  shall 
be  prosecuted  to  a  conclusion  in  the  manner  heretofore  provided  by  law. 

(Sec.  11.)  That  this  Act  shall  take  effect  and  be  in  force  from  and  after  its 
passage. 

Joint  resolution  of  June  30,  1906,  provides :  "That  the  Act  entitled  'An  Act 
to  amend  an  Act  entitled  "An  Act  to  regulate  commerce,"  approved  February  4, 


APPENDIX.  1117 

1887,  and  all  Acts  amendatory  thereof,  and  to  enlarge  the  powers  of  the  Inter- 
state Commerce  Commission, '  shall  take  effect  and  be  in  force  sixty  days  after 
its  approval  by  the  President  of  the  United  States." 

(Additional  provisions  in  Act  of  June  18,  1910.)  (Sec.  6,  par.  2.)  It  shall  be 
the  duty  of  every  common  carrier  subject  to  the  provisions  of  this  Act,  within 
sixty  days  after  the  taking  effect  of  this  Act,  to  designate  in  writing  an  agent  in 
the  city  of  Washington,  District  of  Columbia,  upon  whom  service  of  all  notices 
and  processes  may  be  made  for  and  on  behalf  of  said  common  carrier  in  any  pro- 
ceeding or  suit  pending  before  the  Interstate  Commerce  Commission  or  before 
said  Commerce  Court,  and  to  file  such  designation  in  the  office  of  the  secretary 
of  the  Interstate  Commerce  Commission,  which  designation  may  from  time  to 
time  be  changed  by  like  writing  similarly  filed ;  and  thereupon  services  of  all 
notices  and  processes  may  be  made  upon  such  common  carrier  by  leaving  a 
copy  thereof  with  such  designated  agent  at  his  office  or  usual  place  of  residence 
in  the  city  of  Washington,  with  like  effect  as  if  made  personally  upon  such  com- 
mon carrier,  and  in  default  of  such  designation  of  such  agent,  service  of  any 
notice  or  other  process  in  any  proceeding  before  said  Interstate  Commerce  Com- 
mission or  Commerce  Court  may  be  made  by  posting  such  notice  or  process 
in  the  office  of  the  secretary  of  the  Interstate  Commerce  Commission. 

(Sec.  15.)  That  nothing  in  this  Act  contained  shall  undo  or  impair  any  pro- 
ceedings heretofore  taken  by  or  before  the  Interstate  Commerce  Commission  or 
any  of  the  acts  of  said  Commission ;  and  in  any  cases,  proceedings,  or  matters 
now  pending  before  it,  the  Commission  may  exercise  any  of  the  powers  hereby 
conferred  upon  it,  as  would  be  proper  in  cases,  proceedings,  or  matters  hereafter 
initiated  and  nothing  in  this  Act  contained  shall  operate  to  release  or  affect  any 
obligation,  liability,  penalty,  or  forfeiture  heretofore  existing  against  or  incurred 
by  any  person,  corporation,  or  association. 

(Sec.  18.)  That  this  Act  shall  take  effect  and  be  in  force  from  and  after  the 
expiration  of  sixty  days  after  its  passage,  except  as  to  sections  twelve  and  six- 
teen, which  sections  shall  take  effect  and  be  in  force  immediately. 

Public,  No.  41,  approved  February  4,  1887,  as  amended  by  Public,  No.  125, 
approved  March  2,  1889;  Public,  No.  72,  approved  February  10,  1891 ;  Public, 
No.  38,  approved  February  8,  1895 ;  Public,  No.  337,  approved  June  29,.  1906 ; 
Public  Res.,  No.  47,  approved  June  30,  1906 ;  Public,  No.  95,  approved  April  13, 
1908 ;  Public,  No.  262,  approved  February  25,  1909 ;  Public,  No.  218,  approved 
June  18, 1910 ;  Public,  No.  337,  approved  August  24, 1912 ;  and  Public,  No.  400, 
approved  March  1,  1913. 


INDEX. 


Abandonment  by  consignee,  816. 
Acceptance  of  goods,  see  Delivery. 

of  passenger,   what  sufficient,   900, 
903. 
Act  of  God,  what  constitutes,  391,  392, 
396,  462,  618,  960. 
negligence  in  not  avoiding,  401,  446, 

678. 
as  excusing  common  carrier,  10. 
as  excusing  innkeeper,  206,  214,  221, 
230. 
Action,  form  of;    contract  or  tort,  306, 
469t  774,  776,  779,  782,  878. 
for  injuries  causing  death,  1042. 
limitation  of,  see  Limitation. 
who  proper  parties  to,  see  Parties. 
Advanced  charges,  821. 
cover  what,  841. 
hen  for,  838,  847. 
Agent  of  common  carrier  authority  of, 
304,  305,  342,  351. 
authority  to  issue  bills  of  lading,  566, 

590,  592. 
liability  for  acts  of,  328,  483. 
connecting  carrier  deemed,  846. 
of  carrier  of  passengers,  authority  of, 

1008. 
for  sale  of  tickets,  973. 
acts  of  beyond  scope  of  authority, 

913,  915,  916,  920,  941. 
notice  to,  408. 

delivery  of  bill  of  lading  to,  551,  554. 
Agister,  lien  of,  81. 

Assumpsit,  action  of  for  failure  to  carry 
passenger,  1041. 
action  of  in  general,  see  Action,  form 
of. 
Attachment  of  goods  in  transit,  749,  751, 
840. 
as  excuse  for  non-delivery,  735,  742, 
744,  751. 


Baggage,  carrier's  liability  for,  640,  850, 

875. 
what  constitutes,  327,  329,  336,  338, 

340,  344,  467,  636. 
acceptance  of,  what  sufficient,  352. 
extra   compensation  for,   325,   331, 

340,  342,  851. 
Hen  on  for  fare,  851. 
money  not,  327. 
under  passenger's  control,  182,  341, 

346,  348. 

1119 


Baggage  —  continued. 

liability  of   connecting   carrier  for, 

658,  664. 
checks  for,  see  Check. 
of  guest,  liability  of  innkeeper  for, 

200. 
hen  of  innkeeper  upon,  254. 
Bailee,  liability  of,  4,  5. 

for  conversion,  38. 
gratuitous,  6,  10,  11,  46. 

negligence  of,  57,  60,  62,  64,  67. 
action  by,  12,  14. 
of  fungible  property,  29,  32. 
for  safe  deposit,  34. 
delivery  by,  to  true  owner,  691. 
liability  over,  to  bailor,  13,  14. 
possession  by,  28. 
suit  by,  against  carrier,  772. 
rights  of,  against  third  persons,  see 

Jus  Tertii. 
Bailments,  ordinary,  3. 
kinds  of,  5. 

distinguished  from  sales,  29,  33. 
Bailor  and  bailee,  relations  of,  3. 
Bill  of  lading,  definition  and  nature  of, 

564,  572,  578. 
acceptance  of,  constituting  contract, 

488,  549,  552. 
delivery  of  to  shipper's  agent,  551, 

554. 
effect  of  delivery  after  shipment,  551, 

555. 
issued  without  authority,  566,  590, 

592. 
1  transfer  of  by  delivery,  683. 
not  negotiable  instrument,  574,  588, 

683,  687. 
reservation  oijus  disponendi  in,  571, 
(  677,  717. 
rights  of  assignee  under,  572. 
transfer  of  title  by,  581,  673,  680, 

840. 
parol  evidence  to  vary,  563, 569, 573, 

576,  578,  811. 
provisions    of    as    to    freight,    822, 

844. 
provisions  of  as  to  demurrage,  828, 

837. 
stipulations  of  as  to  sale,  814. 
estoppel  by,  581. 
for    goods    subsequently    delivered, 

694. 
under  Harter  Act,  512. 


1120 


INDEX. 


Bill  of  lading  —  continued. 

under  Carmack  Amendment,  limi- 
tation of  liability,  524. 

for  through  transportation,  see  Con- 
necting Carriers. 

stipulations  of,  limiting  liability,  see 
Limitation  of  Liability. 

stipulations    as    to    navigation,    see 
Perils  of  Navigation. 
Burden   of   proof,    as   to   negligence   of 
bailee,  73. 

as  to  care  or  negligence  of  common 
carrier,  423,  450,  799,  802. 

loss  or  injury  as  showing  negligence, 
784,  787,  793,  and  see  Presump- 
tions. 

as  to  exemption  from  liability,  395, 
400. 

as  to  negligence  in  transportation  of 
live  stock,  428. 

as  to  diligence  in  furnishing  cars,  363. 

in  case  of  injury  to  passenger,  867, 
928,  944,  953,  963,  967. 

as  to  defects  in  machinery,  track, 
and  appliances,  934. 

as  to  right  of  passenger  on  freight 
train,  872. 

Care,  see  Negligence. 

Carmack  Amendment,  construction   of, 

524,  533,  655. 
Carrier  of  goods,  see  Common  Carrier. 
Carrier  of  live-stock,  see  Live-stock. 
Carrier  of  mail  under  contract,  270. 
Carrier  of  passengers,  duty  to  carry,  868, 
875,  881,  977. 
palace  car  company  not,  179. 
not   bound   to   carry   objectionable 
persons,  875,  885,  888,  890,  892, 
896. 
not  bound  to  carry  person  expelled 

from  same  train,  1078. 
granting    exclusive    privileges,    885, 

892,  896. 
compensation  inferred,  905. 
tender  of  fare,  911. 
lien  on  baggage  for  fare,  851. 
without  compensation,  liability,  see 

Free  Passenger. 
liability  in  general,    413,  466,  862, 
867,  875,  905,  907,  929,  931,  939 
947,  950,  955,  981. 
care  and  diligence  required,  937,  938, 

955. 
not  deemed  insurer,  489,  495,  561, 

861,  867,  929,  951,  971. 
implied  contract,  906. 
limitation  of  liability  by  contract, 
1016,  1019,  1020. 

as  to  free  passenger,  1011,  1016, 
1020,  1024. 
duty  to  have  safe  machinery,  track, 
and  appliances,  785,  866,  931,  938, 
947,  960. 


Carrier  of  passengers  —  continued. 

liability  for  wrongful  acts  of  conduc- 
tor or  servant,  188,  968,  970,  973. 
for  injury  by  fellow-passenger, 

890,  976. 
for  injuries  by  outsiders,  981, 

984. 
for  failure  of  conductor  to  wake 
passenger,  1007. 
duty  as  to  accommodations,  896. 
liability  for  delay,  1005,  1007. 
continuous  passage,  1033. 
liability  of  connecting  carrier,  1043. 
liability  of  for  baggage,  see  Baggage. 
who  deemed  passenger,  see  Passenger. 
negligence  of  passenger,  see  Contrib- 
utory Negligence. 
Cars,  duty  to  furnish,  362. 
Charges,  for  storage,  837. 

for  carriage  of  goods,  see  Freight. 
advanced,  see  Advanced  Charges. 
Check,  not  a  contract,  487,  549. 

over  connecting  line,  659. 
Claim  for  damages,  limitation  of  time  for 

making,  538,  544. 
Colored  persons,  special  car  for,  1082. 
Common  carrier,  definition,  who  deemed, 
300,  301,  304,  311,  313,  314,  315, 
318,  321,  322,  669. 
by  water,  384,  395. 
ferryman  deemed,  412. 
railroad  as,  617. 
liability  of,  for  mail,  270. 
liability  of,    for    baggage,  see  Bag- 
gage. 
duty  to  serve  all,  354,  364,  370,  373, 

875. 
duty  to  furnish  cars,  362. 
exclusive  privileges,  886. 
liability  of  in  general,  4,  9,  324,  385, 
391,  454,  462,  468,  493  n.,  602, 
697,  748,  774,  861,  950. 

for  loss  or  damage  from  act  of 

God,  see  Act  of  Qod. 
for  loss  or  damage  from  public 

enemy,  403,  405. 
for  loss  due  to  acts  or  negli- 
gence  of   shipper,   408,   410, 
413,  416,  425,  466. 
for  loss  or  damage  due  to  in- 
herent nature  of  goods,  419, 
421,  424,  429,  450,  678. 
for  failure  to  furnish  safe  ap- 
pliances, 415. 
in  case  of  stowage  on  deck,  811. 
for  deviation,  see  Deviation. 
limitation  of,  see  Limitation  of 

Liability. 
termination  by  notice,  610. 
when    commences    and    termi- 
nates, see  Delivery. 
for  delivery  to  wrong  party,  see 

Delivery. 
for  delay,  see  Delay. 


INDEX. 


1121 


Common  carrier  —  continued. 

over  connecting  lines,  see  Connecting 

Carriers. 
charges  of,  see  Freight,  also  Advanced 

Charges. 
legislative  control  of,  377,  379,  380. 
Common  law,  nature,  of  616,  880. 
Compensation  for  carriage  of  goods,  es- 
sential, 306,  307,  309. 
implied  contract  for,  310. 
must  be  reasonable,  376,  461. 
regulation  of,  378. 
for  carriage  of  baggage,  325,  331,  851. 
for  storage,  620,  837. 
as  affecting  liability  for  negligence, 

462,  907. 
effect  of  fraud,  455 ;    and  see  also 

Limitation  of  Liability. 
apportionment,  collection,  etc.,    of, 

see  Freight. 
for  carriage  of  passengers,  see  Carrier 
of  Passengers  and  Free  Passenger. 
Conductor  of   train,    authority  of,   872, 
916,  917,  923,  925,  968,  978,  983. 
Conflict  of  laws,  631,  1042. 
Confusion  of  goods,  30,  31,  695. 
Connecting  carriers,  extent  of  liability  of, 
649,  652  n.,  653. 
presumption  of  liability,  as  between, 

666,  788,  789,  792. 
partnership  or  joint  liability  of,  659, 

667. 
liability  of  for  baggage,  658,  664. 
limitation  of  liability  of  by  contract, 

559,  634. 
liability  of  initial  carrier  under  Car- 
mack  Amendment,  655. 
contract  of  as  to  freight  charges,  844. 
delivery  as  between,  644. 
deemed  agent  of  owner,  790. 
deemed  forwarding  agent,  846. 
of  passengers,  1043,  1047. 
Consideration  for  contract  limiting  lia- 
bility, 520,  545. 
for  carriage  of  passengers,  see  Car- 
rier of  Passengers. 
for  carriage  of  goods  or  baggage,  see 
Compensation,  also  Freight. 
Consignee,  delivery  as  passing  title  to, 
669,  672,  677. 
liability  of  for  freight,  825. 
liability  of  for  general  average  and 

demurrage,  828,  836. 
action  by,  see  Parties. 
Consignor,  liability  of  for  freight,  822. 

action  by,  see  Parties. 
Constitutional    law,    charter    contracts, 
377. 
uniformity  of  legislation,  379. 
Construction  train,   passenger  on,   865, 

869. 
Contract,  written,  parol  evidence  to  vary, 
567,  573. 
place  of  performance,  633. 


Contract  —  continued. 

divisibility,  see  Freight. 
limitation  of  liability  by,  see  Limita- 
tion of  Liability. 
action  on,  see  Action. 
Contractor,  for  construction,  not  carrier 

of  passengers,  865,  869. 
Contributory    negligence    of    passenger, 

what  constitutes,   989,  991,  995, 

997,  1028. 
when  imputed,  994,  1000,  1001. 
duty  of  carrier  to  avoid,  1028. 
when  question  for  jury,  994. 
Conversion  by  bailee,  31,  38. 

by   carrier,   what   constitutes,   433, 

675,  679,  700,  745. 
defeats  right  to  freight,  820. 
Custom  and  usage  as  affecting  liability 

of  carrier,  481,  482,  566. 
as  to  delivery,  603,  605,  805. 
as  to  acceptance,  352. 
as  to  passing  of  title,  684. 
as   to   passenger's   right   on   freight 

train,  915. 
as  affecting  duty  as  to  passenger, 

1009. 

Damages,  recovery  of  by  bailee,  13,  14. 

measure  of,  see  Measure  of  Damages. 

proximate,  see  Proximate  Cause. 
Dangers  of  navigation,  see  Perils  of  Navi- 
gation. 
Death,  recovery  of  damages  for,  921. 
Declaration,  whether  in  contract  or  tort, 

form  of,  774,  776,  779,  781. 
Delay  in  transportation  of  goods,  dam- 
ages for,  363,  423,  424,  432,  433, 
435,  438. 

in  transportation  of  passenger,  see 
Carrier  of  Passengers. 
Delivery  to  carrier,  336,  350,  352,  353. 

as  passing  title,  707,  754,  757,  762, 
767. 

as  between  connecting  carriers,  644, 
649,  654. 

effect  of  concealing  value,  see  Limi- 
tation of  Liability. 

by  carrier,  what  sufficient  to  termi- 
nate liability,  598,  610,  619,  623, 
628,  697. 

diligence  in,  required,  609,  610. 

personal,  when  required,  598,  603, 
606,  607. 

whether  notice  required,  610. 

to  consignor  before  transportation 
commenced,  806. 

to  true  owner,  691,  739. 

essential  to  entitle  to  freight,  812, 
819. 

waiving  lien  for  freight,  838. 

to  wrong  party,  liability  for,  680, 
697,  699,  700,  706,  710,  713,  714. 

refusal  of  constitutes  conversion, 
679. 


1122 


INDEX. 


Delivery  to  carrier  —  continued. 

excused   by   seizure  under  process, 

735,  736,  743,  745,  747,  751. 
what  sufficient  to  terminate  right  to 

stop  in  transit,  718,  728,  732. 
to  consignee  as  passing  title,  669, 672, 

677. 
of  bill  of  lading  as  passing  title,  see 

Bill  of  Lading. 
of  baggage,  time  for,  640. 
Demurrage,  828,  836. 
Depot,  privileges  at,  896. 
Deviation,  liability  for,  441,  444. 
Drover's  pass,  limitation  of  liability  in, 
1020. 

Elevators,  regulation  of  charges  of,  289. 
Employees,  see  Servants. 
Estoppel,  by  bill  of  lading,  566,  573,  576, 
578,  581,  590,  595,  693. 
by  warehouse  receipt,  581. 
Evidence,  see  Burden  of  Proof  and  Pre- 
sumption. 
Express  company  deemed  carrier,  318, 
364,  607,  669,  966. 
liability  of  railroad  company  to  for 

loss,  886. 
delivery  by,  603,  605,  607,  610. 
Expulsion  of  passenger,  for  improper  con- 
duct, 977. 
for  failure  to  purchase  ticket,  1052, 

1056,  1076. 
in  case  of  mistake  in  ticket,   1058, 

1061,  1066,  1067, 1070,  1073. 
for  non-payment  of  fare,  1029. 
effect  of  as  to  right  to  ride  on  same 

train,  1078. 
damages  for,  1060. 
at  what  place,  1054,  1056,  1080. 

Fare  for  passage,  tender  of,  911. 
when  not  demanded,  970. 
where  ticket  not  purchased,   1054, 

1075. 
ejectment  for  non-payment,  1029. 
hen  on  baggage  for,  851. 
Federal  statutes,  limitation  of  carrier  s 
liability  by,  1087,  1089. 
interstate  commerce  act,  1090. 
Ferryman,  liability  of,  4. 

deemed  common  carrier,  313,  412. 
regulation  of  rates,  291. 
Finder  of  lost  goods,  rights  of,  15,  20,  21, 
24,  27,  45. 
recovery  against  wrong  doer,  15. 
Forged  order,  delivery  under,  700,  702, 

706. 
Forwarder  not  common  carrier,  321. 
Fraud,  effect  of  as  to  injury  to  passenger, 
923,  924. 
in   concealing  value   of   goods,    see 
Limitation  of  Liability. 
Free  passenger,  who  deemed,  917,  1011, 
1020,  1024. 


Free  passenger  —  continued. 
by  invitation,  914. 
trespasser  not  deemed,  916,  925. 
liability  for  injury  to,  306,  308,  862, 

868,  913,  915,  941. 
limitation   of  liability  as   to,    1014, 

1019,  1024. 
Freight,  discriminations  in,  370,  374,  376. 
regulation  of  charges,  378,  380. 
when  carrier  entitled  to,  403,   803, 

807. 
as  compensation  for  carriage,  500. 
part  performance  does  not  entitle  to, 

804,  812,  820. 
divisibility  of,  812. 
pro  rata,  804,  820. 
due  on  re-taking  goods  before  trans- 
portation, 805,  839. 
dead,  833. 
contract  of  connecting  carrier  as  to, 

844. 
in  case  goods  perish  from  defects, 

816. 
in  case  of  loss  of  goods  by  shipper's 

fault,  816. 
who  liable  for,  822,  825. 
recovery  of  after  payment,  830,  832. 
lien  for,  see  Lien. 
advanced,  see  Advanced  Charges. 
Freight  train,  passengers  on,  871,  917. 
Fruit,    negligence   in   transportation   of, 

450. 
Fungible  property,  bailment  of,  29,  32. 

Garnishment  for  goods  in  transit,  749, 

751. 
Grain,  bailment  of,  29,  32. 
Gratuitous  carriage,  see  Compensation. 
Guest  of  innkeeper,  who  is,  167. 

as  distinct  from  boarder,  171,  225, 

231,  234. 
personal  safety  of,  183. 
safety  of  property  of,  4,  200. 

Harter  Act,  limitation  of  liability  under, 

506,  512. 
Hepburn  Act,  see  Carmack  Amendment. 

Inherent  defects,  loss  due  to,  see  Common 

Carrier. 
Innkeeper,  liability  for  guest's  property, 

4,  200. 
public  calling,  163. 
who  deemed  to  be,  163, 171, 176, 218, 

223. 
relation  of,  to  guest,  167. 
duty  of,  as  to  guest's  safety,  183. 
regulations  of,  245,  896. 
lien  of,  254. 
Insurer,  common  carrier    deemed,    391, 

457,  462,  469,  520,  544,  601,  618, 

748. 
carrier   of   passenger,    not   deemed, 

861,  867,  929,  951,  971. 


INDEX. 


1123 


Interest,  when  allowed  as  damages,  310. 
Interstate  commerce,  regulation  of,  378. 

federal  statutes,  relating  to,  1090. 

construction  of  Carmack  Amend- 
ment, 524,  533. 

Jettison,  563. 

Jurisdiction  of  state  court  under  Car- 
mack  Amendment,  655. 
Jus  tertii,  15,  40,  43,  691. 

King's  enemy,  see  Public  Enemy. 

Law  and  Fact,  348,  799,  994. 
Liability  of  carrier  of  goods,  see  Common 
Carrier. 
limitation  of,  see  Limitation  of  Lia- 
bility. 
of  carrier  of  passengers,  see  Carrier 
of  Passengers. 
Lien  of  bailee,  75. 
of  pledgee,  118. 
of  warehouseman,  137,  150. 
of  innkeeper,  254. 

of  vendor,  stoppage  in  transitu,  718. 

of  carrier  for  freight,  805,  807,  833. 

for  advanced  charges,  821,  838, 

841,  846. 
as  against  true  owner  not  con- 
senting    to     transportation, 
846,  853,  857. 
waived  by  delivery,  838. 
carrier   not   bound    to   enforce, 

823. 
no  power  to  sell,  848. 
for  demurrage,  836. 
on  passenger's  baggage,  851. 
Limitation  of  common  carrier's  liability, 
by  special  acceptance,   302,   402, 
454. 
where  value  concealed,  326,  332,  402, 

454,  457,  463,  481. 
by  notice,  325,  331,  463,  467,  478, 

550  n.,  876. 
by   notice   as    to   value,   471,    478, 

481. 
by  contract  as  to  agreed  valuation, 

508,  516,  524,  534. 
by  contract  in  bill  of  lading,  or  other- 
wise, 138,  316,  444,  474,  478,  493, 
528,  537,  550  n. 

consideration  for,  529,  545. 
not  good,  as  against  negligence, 
464,  490,  518  n.,  787,  799. 
burden  of  proof  in  such  cases,  784, 

784  n.,  787,  793. 
acceptance  of  bill  of  lading  contain- 
ing limitations  binding,  488,  549, 
550  n.,  552  n.,  654. 
by  bill  of  lading  subsequently  de- 
livered, 551,  555. 
effect  of  as  to  connecting  carrier,  557, 

634,  644,  652  n.,  657. 
by  custom,  see  Custom  and  Usage. 


Limitation  —  continued. 
by  statute,  335,  499. 

under  Harter  Act,  505,  512. 
under    Carmack    Amendment, 
524,  533. 
for  injury  to  passenger,  see  Carrier 
of  Passengers. 
Limitation  of  time  for  claiming  damages, 

536,  547. 
Limited  liability  act,  construction  of,  499 . 
Live-stock,  liability  of  carriers  of,  361, 

419,  421,  423,  427. 
Loading,  liability  of  shipper  for,  411,  425. 
Loss,  notice  as  to,  538,  544. 
Lost  goods,  rights  of  finder,  15,  20,  21, 
24,  27. 

Machinery,   track,   and  appliances,   lia- 
bility of  common  carrier  for  loss 
from  defects  in,  799. 
liability  of  carrier  of  passengers  for 
injury  from  defects  in,  931,  938, 
947,  950,  956,  960. 
Mail,  carriage  of,  261. 
Master  of  vessel,  authority  of,  941. 
liability  for  acts  of,  402,  567. 
issuance  of  bill  of  lading  by,  590. 
Master    and    servant,    responsibility    of 
master  for  acts  of  servant,  .within 
scope  of  authority,  436,  870. 
responsibility  of  master  for  servant's 
acts  beyond  scope  of  authority, 
915. 

for  negligence  of  servant,  913, 

996. 
for  wilfully  wrongful  acts  of  ser- 
vant, 435,  438,  968,  970,  973. 
for  injury  to  servant,  868. 
for  injury  to  servant  from  negli- 
gence of  fellow-servant,  909, 
911. 
for  injury  to  servant,  assump- 
tion of  risk,  911. 
see  Servant. 
Measure  of  damages,  interest,  310. 
for  delay,  364,  433. 
for  shipper's  breach  of  contract,  807. 
for  wrongful  expulsion  of  passenger, 
1060. 
Merchandise,  not  baggage,  see  Baggage. 
Mistake  in  delivery  by  carrier,  696. 
Money,  not  baggage,  327. 
Mortgage,      whether      subordinate      to 
bailee's  lien,  81,  82,  84,  89. 
distinguished  from  pledge,  103. 

Negligence,  liability  of  bailee,  4,  18,  47, 
53. 
liability  of  innkeeper,  200. 
liability  of  warehousemen,  137. 
liability  of  common  carrier  for,  395, 
457. 

in  not  avoiding  loss  from  act  of 
God,  400,  446,  678. 


1124 


INDEX. 


Negligence,  liability  of  common  carrier 
for  —  continued. 

in  not  avoiding  injury  from  in- 
herent defects,  429,  450. 
in  not  avoiding  injury  from  ex- 
cepted danger,  784,  787,  793. 
in  loading  or  storage  of  cargo, 

513,  563,  811. 
in  transportation  of  live-stock, 

427. 
for  delay,  see  Delay. 
for  delivery,  see  Deliver!/. 
gross,  7,  55,  56,  73  n.,  465,  862,  907, 

942. 
degrees  of,  942,  1023,  1027. 
question  of  fact  or  law,  348,  799. 
imputed,  994,  1000,  1001. 
contract  against    liability  for,    138, 

528. 
as  to  machinery,  etc.,  see  Machinery, 

Track,  and  Appliances. 
of  passenger,  see  Contributory  Negli- 
gence. 
in  failing  to  protect  passenger,  see 

Carrier  of  Passengers. 
burden  of  proof  of,   see  Burden  of 

Proof. 
presumption  of  from  loss,  see  Pre- 
sumption. 
limitation   of   liability   for   by   con- 
tract, see  Limitation  of  Liability. 
Negotiability  of  warehouse  receipts,  see 
Warehouse  Receipts. 
of  bill  of  lading,  see  Bill  of  Lading. 
Notice  to  consignee  of  arrival  of  goods, 
610,  622,  626,  628. 
of  stoppage  in  transitu,  720,  724. 
of  rule  as  to  demurrage,  836. 
as  to  riding  on  freight  train,  872. 
as  to  time  of  trains,  1005. 
as  limiting  liability,  see  Limitation  of 
Liability. 

Owner  of  goods  in  carrier's  hands,  who 
deemed,  754,  756,  762,  767. 

Owners  of  vessels,  limitation  of  liability 
of,  499,  1087. 

Palace-car    companies,    see    Sleeping-car 

Companies. 
Parties  in  action  against  carrier,  754,  757, 

761,  767,  769,  772. 
Partners,    whether    connecting    carriers 

deemed,  659,  667. 
Passenger,  who  deemed,  865,  868,  871, 
880,  901,  903,  914,  917,  970. 
servant,  not,  868,  909,  910. 
person  pursuing  special  occupation, 

904. 
unauthorized  person  pursuing  busi- 
ness, 916. 
person  procuring  passage  by  fraud, 

923,  924. 
baggage  of,  see  Baggage. 


Passenger  —  continued. 

without  compensation,  see  Free  Pas- 
senger. 
liability  for  injury  to,  see  Carrier  of 

Passengers. 
negligence  of,  see  Contributory  Negli- 
gence. 
Pawn,  see  Pledge. 
Payment   of   freight,    wThat   constitutes, 

830. 
Perils  of  navigation,  exception  of  in  bill 

of  lading,  394,  490,  563,  784. 
Plaintiff,  who  may  be  in  action  against 

carrier,  see  Parties. 
Pledge,  liability  of  pledgee,  3,  8. 
duty  to  restore,  9. 
conversion  of  by  pledgee,  39. 
possession  essential,  98. 
distinguished  from  mortgage,  103. 
duties  of  pledgee,  115. 
lien,  118. 
Police  power  as  to  regulation  of  public 
calling,  290. 
of  carrier  of  passengers,   see  Rules 
and  Regulations. 
Possession  of  bailee,  12,  14,  19,  28. 
Postmaster  General,  action  by  in  behalf 

of  mail  owner,  14. 
Postmasters  and  carriers  of  mail,  261. 
Presumption,   from  loss  of  or  injury  to 
goods,  346,  785,  799,  801. 
of   liability   as   between   connecting 

carriers,  666,  788,  789,  792. 
from  accident  to  passenger,  865,  943, 
953,  963,  967,  997. 
Private  carrier,  of  goods,  300. 

of  passengers,  865. 
Process,  seizure  of  goods  under  as  excus- 
ing  non-delivery,   735,   737,    743, 
744,  751. 
Protection  of  passenger  by  carrier,  968, 

971,  973,  976,  984. 
Proximate  cause,  401,  441,  980,  1028. 
Public  calling,  what  deemed,  300,  300  n., 

304. 
Public  enemy,  acts  of  as  exempting  com- 
mon carrier  from  liability,  10,  403, 
405. 

Railroads,    see    Common     Carrier,     and 
Carrier  of  Passengers. 

Rates,  regulation  of,  291  ;    see  also  Com- 
mon Carrier. 

Receipt,  bill  of  lading  deemed,  576 ;   and 
see  Bill  of  Lading. 

Recovery  of  freight  paid,  829,  832. 

Refrigeration,  duty  to  furnish,  450. 

Respondeat    superior,    see    Master    and 
Servant,  and  Postmasters. 

Robbery  as  excusing  bailee,  4,  8,  10. 

as  excusing  innkeeper,  202,  203,  207, 
213,  221. 

Rules  and  regulations  of  innkeepers,  245. 
of  passenger  carriers,  871,  896. 


INDEX. 


1125 


Rules  and  regulations  —  continued. 

as  to  passengers  on  freight  trains, 

922. 
as  to  purchase  of  ticket,  1051,  1054. 
as  to  producing  ticket,  1062,   1066, 

1070,  1073. 
as  to  place  of  riding,  1082. 
as  to  conduct  of  passenger,  1083. 
enforcement   of   by   expulsion,   979, 

1080. 

Safety  deposit,  nature  of,  34. 
Sale,    distinguished    from    bailment,    29, 
33. 
to  enforce  bailee's  lien,  91. 
to  enforce  pledgee's  lien,  124,  134. 
of  goods  by  master,  814. 
of  perishable  goods,  848. 
not  authorized  to  enforce  carrier's 
lien,  848. 
Servant,  who  deemed,  973. 
authority  of,  872,  920. 
see  Master  and  Servant. 
Sleeping-car  companies,  not  innkeepers, 
179. 
liability    for   injury   to   passengers, 

188. 
liability  for  baggage,  345. 
duty  to  carry  all,  877. 
liability  of  railroad  for  negligence  of, 
966. 
Speed,  as  indicating  negligence,  950. 
State  decisions  not  binding  in  other  State 

or  U.  S.  courts,  631. 
Stagecoaches,  as  carriers  of  passengers, 
875,  933. 
as  carriers  of  money,  305. 
Station,  privileges  at,  895. 
Steamboat    companies,    liability    of    for 
baggage,  348. 
for  money,  304. 
as  carriers  of  passengers,  971. 
Stoppage  in  transitu,  718,  838. 
Storage,  charges  for,  620,  837. 
Strikers,  liability  for  acts  of,  436,  438. 

Tender  of  freight,  830,  840. 

of  fare,  911. 
Theft,  as  defense  for  bailee,  4,  8. 

does  not  excuse  innkeeper,  227. 


Ticket,  nature  and  effect  of,  1008,  1029, 
1032,  1048. 
whether  a  contract,  345,  550,  1005, 

1020. 
excuse  for  refusal  to  honor,  887,  888. 
effect  of  mistake  in,  1058,  1061,  1066, 

1067,  1070,  1073. 
conditions  of  as  to  stamping,  1040. 
transfer  of,  924,  1034,  1047,  1049. 
for  through  transportation,  659. 
over  connecting  lines,  1037,  1045. 
coupon,  665,  1037,  1042. 
purchase  of,  903,  1051,  1054,  1075. 
failure  to  procure,  1042. 
for  continuous  passage,  1033,  1037. 
not  good  in  reverse  direction,  1035. 
limited,  1035,  1037. 
stop  over,  851. 
fraudulent,  924. 
Time  of  running  trains,  1005. 
Title  of  bailor,  who  may  question,  see 

Jus  Tertii. 
Tort,  refusal  to  carry  passenger  deemed, 
878. 
see  Action. 
Tow-boat,  not  common  carrier,  314. 
Track,  defects  in,  see  Machinery,  Track, 

and  Appliances. 
Treasure  trove,  25. 
Trespasser,  not  deemed  passenger,  913, 

914,  916,  918,  922. 
Trover  for  conversion  by  bailee,  38. 
for  misdelivery  by  carrier  700. 

Vendor,  stoppage  in  transitu  by,  718. 
Vendor's  lien,   effect  of  taking  note  in 
payment,  733. 

Warehouseman,  duties,  136. 
lien,  137,  150. 
receipts,  140. 

negotiability  of,  143,  148. 
nature,  581. 
estoppel  by,  581. 
regulation  of  rates  of,  292. 
carrier  liable  as,  601,  611,  618,  624, 

630,  702,  837. 
connecting  carrier  not,  644. 
Wharfinger,  as  bailee,  153. 
duties  of,  155. 


■<Mik 


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UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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